Florida
|
001-10613
|
59-1277135
|
(State or other jurisdiction)
|
(Commission file number)
|
(I.R.S. employer
|
of incorporation)
|
identification no.)
|
q
|
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
|
q
|
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
|
q
|
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
|
q
|
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4c))
|
Item 1.01.
|
Entry into a Material Definitive Agreement.
|
Item 2.03.
|
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
|
Item 3.02.
|
Unregistered Sales of Equity Securities
|
Item 8.01.
|
Other Events.
|
Item 9.01.
|
Exhibits.
|
4.1
|
Indenture, dated September 15, 2015, between Dycom Industries, Inc. and U.S. Bank National Association.
|
4.2
|
Form of Global 0.75% Convertible Senior Note due 2021.
|
10.1
|
Base Bond Hedge Confirmation, dated September 9, 2015, between Dycom Industries, Inc. and Goldman, Sachs & Co.
|
10.2
|
Base Bond Hedge Confirmation, dated September 9, 2015, between Dycom Industries, Inc. and Bank of America, N.A.
|
10.3
|
Base Bond Hedge Confirmation, dated September 9, 2015, between Dycom Industries, Inc. and Wells Fargo Bank, National Association.
|
10.4
|
Additional Bond Hedge Confirmation, dated September 10, 2015, between Dycom Industries, Inc. and Goldman, Sachs & Co.
|
10.5
|
Additional Bond Hedge Confirmation, dated September 10, 2015, between Dycom Industries, Inc. and Bank of America, N.A.
|
10.6
|
Additional Bond Hedge Confirmation, dated September 10, 2015, between Dycom Industries, Inc. and Wells Fargo Bank, National Association.
|
10.7
|
Base Warrant Confirmation, dated September 9, 2015, between Dycom Industries, Inc. and Goldman, Sachs & Co.
|
10.8
|
Base Warrant Confirmation, dated September 9, 2015, between Dycom Industries, Inc. and Bank of America, N.A.
|
10.9
|
Base Warrant Confirmation, dated September 9, 2015, between Dycom Industries, Inc. and Wells Fargo Bank, National Association.
|
10.10
|
Additional Warrant Confirmation, dated September 10, 2015, between Dycom Industries, Inc. and Goldman, Sachs & Co.
|
10.11
|
Additional Warrant Confirmation, dated September 10, 2015, between Dycom Industries, Inc. and Bank of America, N.A.
|
10.12
|
Additional Warrant Confirmation, dated September 10, 2015, between Dycom Industries, Inc. and Wells Fargo Bank, National Association.
|
99.1
|
Press release dated September 15, 2015 by Dycom Industries, Inc. announcing the closing of $485 million convertible senior notes offering.
|
DYCOM INDUSTRIES, INC.
(Registrant)
|
||||
By: | /s/ Richard B. Vilsoet | |||
Name: | Richard B. Vilsoet | |||
Title: |
Vice President, General Counsel and
Corporate Secretary |
|||
ARTICLE 1. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
|
1
|
|
Section 1.01
|
Definitions
|
1
|
Section 1.02
|
References to Interest
|
13
|
Section 1.03
|
Acts of Holders
|
13
|
ARTICLE 2. THE NOTES
|
15
|
|
Section 2.01
|
Title and Terms; Payments
|
15
|
Section 2.02
|
Ranking
|
16
|
Section 2.03
|
Denominations
|
16
|
Section 2.04
|
Execution, Authentication, Delivery and Dating
|
16
|
Section 2.05
|
Temporary Notes
|
17
|
Section 2.06
|
Registration; Registration of Transfer and Exchange
|
17
|
Section 2.07
|
Transfer Restrictions
|
19
|
Section 2.08
|
Expiration of Restrictions
|
21
|
Section 2.09
|
Mutilated, Destroyed, Lost and Stolen Notes
|
22
|
Section 2.10
|
Persons Deemed Owners
|
23
|
Section 2.11
|
Transfer and Exchange
|
23
|
Section 2.12
|
Cancellation
|
26
|
Section 2.13
|
CUSIP Numbers
|
27
|
Section 2.14
|
Payment and Computation of Interest
|
27
|
Section 2.15
|
Business Day
|
27
|
ARTICLE 3. REPURCHASE AT THE OPTION OF THE HOLDERS
|
27
|
|
Section 3.01
|
Purchase at Option of Holders upon a Fundamental Change
|
27
|
Section 3.02
|
Fundamental Change Company Notice
|
28
|
Section 3.03
|
Repurchase Procedures
|
29
|
Section 3.04
|
Effect of Fundamental Change Purchase Notice
|
30
|
Section 3.05
|
Withdrawal of Fundamental Change Purchase Notice
|
30
|
Section 3.06
|
Deposit of Fundamental Change Purchase Price
|
31
|
Section 3.07
|
Notes Purchased in Whole or in Part
|
31
|
Section 3.08
|
Covenant To Comply with Applicable Laws upon Purchase of Notes
|
31
|
Section 3.09
|
Repayment to the Company
|
31
|
ARTICLE 4. CONVERSION
|
32
|
|
Section 4.01
|
Right To Convert
|
32
|
Section 4.02
|
Conversion Procedures
|
34
|
Section 4.03
|
Settlement Upon Conversion
|
36
|
Section 4.04
|
Adjustment of Conversion Rate
|
39
|
Section 4.05
|
Discretionary and Voluntary Adjustments
|
50
|
Section 4.06
|
Adjustment to Conversion Rate Upon Conversion in Connection with a Make-Whole Fundamental Change
|
50
|
Section 4.07
|
Effect of Recapitalization, Reclassification, Consolidation, Merger or Sale
|
52
|
Section 4.08
|
Certain Covenants
|
54
|
Section 4.09
|
Responsibility of Trustee
|
54
|
Section 4.10
|
Notice of Adjustment to the Trustee
|
54
|
Section 4.11
|
Notice to Holders
|
55
|
ARTICLE 5. COVENANTS
|
56
|
|
Section 5.01
|
Payment of Principal, Interest and Fundamental Change Purchase Price
|
56
|
Section 5.02
|
Maintenance of Office or Agency
|
56
|
Section 5.03
|
Provisions as to Paying Agent
|
57
|
Section 5.04
|
Reports
|
59
|
Section 5.05
|
Statements as to Defaults
|
59
|
Section 5.06
|
Additional Interest Notice
|
60
|
Section 5.07
|
Compliance Certificate and Opinions of Counsel
|
60
|
Section 5.08
|
Additional Interest
|
61
|
Section 5.09
|
Corporate Existence
|
61
|
Section 5.10
|
Restriction on Resales
|
62
|
Section 5.11
|
Further Instruments and Acts
|
62
|
Section 5.12
|
[Reserved]
|
62
|
Section 5.13
|
Company to Furnish Trustee Names and Addresses of Holders
|
62
|
ARTICLE 6. REMEDIES
|
62
|
|
Section 6.01
|
Events of Default
|
62
|
Section 6.02
|
Acceleration; Rescission and Annulment
|
64
|
Section 6.03
|
Additional Interest
|
65
|
Section 6.04
|
Control by Majority
|
66
|
Section 6.05
|
Limitation on Suits
|
66
|
Section 6.06
|
Rights of Holders to Receive Payment and to Convert
|
66
|
Section 6.07
|
Collection of Indebtedness; Suit for Enforcement by Trustee
|
67
|
Section 6.08
|
Trustee May Enforce Claims Without Possession of Notes
|
67
|
Section 6.09
|
Trustee May File Proofs of Claim
|
67
|
Section 6.10
|
Restoration of Rights and Remedies
|
67
|
Section 6.11
|
Rights and Remedies Cumulative
|
68
|
Section 6.12
|
Delay or Omission Not a Waiver
|
68
|
Section 6.13
|
Priorities
|
68
|
Section 6.14
|
Undertaking for Costs
|
68
|
Section 6.15
|
Waiver of Stay, Extension and Usury Laws
|
69
|
Section 6.16
|
Notices from the Trustee
|
69
|
ARTICLE 7. SATISFACTION AND DISCHARGE
|
69
|
|
Section 7.01
|
Discharge of Liability on Notes
|
69
|
Section 7.02
|
Deposited Monies to Be Held in Trust by Trustee
|
70
|
Section 7.03
|
Paying Agent to Repay Monies Held
|
70
|
Section 7.04
|
Return of Unclaimed Monies
|
70
|
Section 7.05
|
Reinstatement
|
70
|
ARTICLE 8. SUPPLEMENTAL INDENTURES
|
71
|
|
Section 8.01
|
Supplemental Indentures Without Consent of Holders
|
71
|
Section 8.02
|
Supplemental Indentures With Consent of Holders
|
72
|
Section 8.03
|
Notice of Amendment or Supplement
|
73
|
Section 8.04
|
Trustee to Sign Amendments, Etc.
|
73
|
ARTICLE 9. SUCCESSOR COMPANY
|
73
|
|
Section 9.01
|
Company May Consolidate, Etc. on Certain Terms
|
73
|
Section 9.02
|
Successor Corporation to Be Substituted
|
74
|
Section 9.03
|
Opinion of Counsel to Be Given to Trustee
|
75
|
ARTICLE 10. THE TRUSTEE
|
75
|
|
Section 10.01
|
Duties and Responsibilities of Trustee
|
75
|
Section 10.02
|
Notice of Defaults
|
77
|
Section 10.03
|
Reliance on Documents, Opinions, Etc.
|
77
|
Section 10.04
|
No Responsibility for Recitals, Etc.
|
78
|
Section 10.05
|
Trustee, Paying Agents, Exchange Agents or Registrar May Own Notes
|
78
|
Section 10.06
|
Monies to be Held in Trust
|
79
|
Section 10.07
|
Compensation and Expenses of Trustee
|
79
|
Section 10.08
|
Officer’s Certificate as Evidence
|
80
|
Section 10.09
|
[Reserved]
|
80
|
Section 10.10
|
Eligibility of Trustee
|
80
|
Section 10.11
|
Resignation or Removal of Trustee
|
80
|
Section 10.12
|
Acceptance by Successor Trustee
|
81
|
Section 10.13
|
Succession by Merger, Etc.
|
82
|
Section 10.14
|
[Reserved]
|
82
|
Section 10.15
|
Trustee’s Application for Instructions from the Company
|
82
|
ARTICLE 11. MISCELLANEOUS
|
83
|
|
Section 11.01
|
Effect on Successors and Assigns
|
83
|
Section 11.02
|
Governing Law
|
83
|
Section 11.03
|
No Note Interest Created
|
83
|
Section 11.04
|
[Reserved]
|
83
|
Section 11.05
|
Benefits of Indenture
|
83
|
Section 11.06
|
Calculations
|
83
|
Section 11.07
|
Execution in Counterparts
|
84
|
Section 11.08
|
Notices, Etc. to Trustee and Company
|
84
|
Section 11.09
|
No Recourse Against Others
|
84
|
Section 11.10
|
Tax Withholding
|
85
|
Section 11.11
|
Waiver of Jury Trial
|
85
|
Section 11.12
|
U.S.A. Patriot Act
|
85
|
Section 11.13
|
Force Majeure
|
85
|
CR
1
= CR
0
x
|
OS
1
|
OS
0
|
|
CR
0
=
|
the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date of such dividend or distribution, or immediately prior to the Open of Business on the effective date of such share split or combination, as applicable;
|
|
CR
1
=
|
the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date or such effective date, as applicable;
|
|
OS
0
=
|
the number of shares of Common Stock outstanding immediately prior to the Open of Business on such Ex-Dividend Date or such effective date, as applicable; and
|
|
OS
1
=
|
the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share combination, as applicable.
|
CR
1
= CR
0
x
|
OS
0
+ X
|
OS
0
+ Y
|
|
CR
0
|
= the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such issuance;
|
|
CR
1
|
= the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;
|
|
OS
0
|
= the number of shares of Common Stock outstanding immediately prior to the Open of Business on such Ex-Dividend Date;
|
|
X
|
= the total number of shares of Common Stock issuable pursuant to such rights, options or warrants; and
|
|
Y
|
= the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants
divided by
the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of the issuance of such rights, options or warrants.
|
CR
1
= CR
0
x
|
SP
0
|
SP
0
- FMV
|
|
CR
0
|
= the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such distribution;
|
|
CR
1
|
= the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;
|
|
SP
0
|
= the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and
|
|
FMV
|
= the fair market value (as determined by the Board of Directors) of Distributed Property with respect to each outstanding share of the Common Stock as of the Open of Business on the Ex-Dividend Date for such distribution.
|
CR
1
= CR
0
x
|
FMV
0
+ MP
0
|
MP
0
|
|
CR
0
|
= the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such Spin-Off;
|
|
CR
1
|
= the Conversion Rate in effect immediately after the Open of Business on the Ex-Dividend Date for such Spin-Off;
|
|
FMV
0
|
= the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of Common Stock applicable
|
|
MP
0
|
= the average of the Last Reported Sale Prices of the Common Stock over the Valuation Period.
|
CR
1
= CR
0
x
|
SP
0
|
SP
0
- C
|
|
CR
0
|
= the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such dividend or distribution;
|
|
CR
1
|
= the Conversion Rate in effect immediately after the Open of Business on the Ex-Dividend Date for such dividend or distribution;
|
|
SP
0
|
= the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and
|
|
C
|
= the amount in cash per share that the Company distributes to holders of the Common Stock.
|
CR
1
= CR
0
x
|
AC + (SP
1
x OS
1
)
|
OS
0
x SP
1
|
|
CR
0
|
= the Conversion Rate in effect immediately prior to the Close of Business on the Offer Expiration Date;
|
|
CR
1
|
= the Conversion Rate in effect immediately after the Close of Business on the Offer Expiration Date;
|
|
AC
|
= the aggregate value of all cash and any other consideration (as determined by the Board of Directors) paid or payable for shares of Common Stock purchased in such tender or exchange offer;
|
|
OS
0
|
= the number of shares of Common Stock outstanding immediately prior to the expiration time of the tender or exchange offer on the Offer Expiration Date (prior to giving effect to the purchase of all shares accepted for purchase or exchange in such tender or exchange offer);
|
|
OS
1
|
= the number of shares of Common Stock outstanding immediately after the expiration time of the tender or exchange offer on the Offer Expiration Date (after giving effect to the purchase of all shares accepted for purchase or exchange in such tender or exchange offer); and
|
|
SP
1
|
= the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the Offer Expiration Date (the “
Averaging Period
”).
|
Dycom Industries, Inc. | ||||
By: | /s/ H. Andrew DeFerrari | |||
Name: | H. Andrew DeFerrari | |||
Title: |
Senior Vice President and Chief Financial Office
|
|||
U.S. BANK, NATIONAL ASSOCIATION , as Trustee | ||||
By: | /s/ Sheryl Lear | |||
Name: | Sheryl Lear | |||
Title: |
Vice President
|
|||
Effective Date
|
Stock Price
|
|||||||||||
$ 74.53
|
$ 77.50
|
$ 80.00
|
$ 85.00
|
$ 90.00
|
$ 96.89
|
$ 100.00
|
$ 120.00
|
$ 140.00
|
$ 160.00
|
$ 180.00
|
$ 200.00
|
|
September 15, 2015
|
3.0963
|
2.9415
|
2.7337
|
2.3662
|
2.0527
|
1.6921
|
1.5522
|
0.8927
|
0.5052
|
0.2728
|
0.1348
|
0.0567
|
September 15, 2016
|
3.0963
|
2.8988
|
2.6861
|
2.3107
|
1.9920
|
1.6274
|
1.4865
|
0.8295
|
0.4522
|
0.2318
|
0.1056
|
0.0382
|
September 15, 2017
|
3.0963
|
2.8763
|
2.6556
|
2.2673
|
1.9393
|
1.5662
|
1.4228
|
0.7638
|
0.3963
|
0.1897
|
0.0772
|
0.0217
|
September 15, 2018
|
3.0963
|
2.8625
|
2.6298
|
2.2223
|
1.8803
|
1.4946
|
1.3475
|
0.6838
|
0.3291
|
0.1402
|
0.0459
|
0.0068
|
September 15, 2019
|
3.0963
|
2.8285
|
2.5785
|
2.1434
|
1.7817
|
1.3792
|
1.2278
|
0.5660
|
0.2385
|
0.0818
|
0.0161
|
0.0000
|
September 15, 2020
|
3.0963
|
2.7260
|
2.4456
|
1.9632
|
1.5694
|
1.1435
|
0.9878
|
0.3571
|
0.1014
|
0.0142
|
0.0000
|
0.0000
|
September 15, 2021
|
3.0963
|
2.5821
|
2.1789
|
1.4436
|
0.7900
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
CUSIP:
|
[267475 AA9] [;
provided
that, at such time as the Company provides the Free Transferability Certificate to the Trustee and the Registrar, this CUSIP number will be deemed removed and replaced with the CUSIP number [267475 AB7].]
|
ISIN:
|
[US267475AA90] [;
provided
that, at such time as the Company provides the Free Transferability Certificate to the Trustee and the Registrar, this ISIN number will be deemed removed and replaced with the ISIN number [US267475AB73].]
|
Amount $
|
[
˜
] [
For Global Notes, include the following
: as revised by the Schedule of Increases and Decreases in the Global Note attached hereto]
|
Dycom Industries, Inc. | ||||
By: | ||||
Name: | ||||
Title: | ||||
Dated:
|
______________ | ||
Signature(s)
(Sign exactly as your name appears on the other side of this Note)
|
|||
Signature Guarantee
(Signature(s) must be guaranteed by an institution which is a member of one of the following recognized signature Guarantee Programs:
(i) The Notes Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion Program (SEMP) or (iv) another guarantee program acceptable to the Trustee.)
|
Dated:
|
______________ | ||
Signature(s)
(Sign exactly as such Person’s name appears above)
|
|||
Signature Guarantee
(Signature(s) must be guaranteed by an institution which is a member of one of the following recognized signature Guarantee Programs:
(i) The Notes Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion Program (SEMP) or (iv) another guarantee program acceptable to the Trustee.)
|
Dated:
|
______________ | ||
Signature(s)
(Sign exactly as your name appears on the other side of this Note)
|
|||
Social Security or Other Taxpayer Identification Number
|
Dated:
|
Signed:
|
|||
Dated:
|
|||
Signature(s)
|
|||
(Sign exactly as your name appears on the other side of this Note)
|
|||
Signature Guarantee
|
Date
|
Amount of Increase in Principal Amount of Global Note
|
Amount of Decrease in Principal Amount of Global Note
|
Principal Amount of Global Note After Increase or Decrease
|
Notation by Registrar, Note Custodian or authorized signatory of Trustee
|
Dycom Industries, Inc. | ||||
By: | ||||
Name: | ||||
Title: | ||||
No.:
|
144A-1
|
CUSIP:
|
267475 AA9;
provided
that, at such time as the Company provides the Free Transferability Certificate to the Trustee and the Registrar, this CUSIP number will be deemed removed and replaced with the CUSIP number 267475 AB7.
|
ISIN:
|
US267475AA90;
provided
that, at such time as the Company provides the Free Transferability Certificate to the Trustee and the Registrar, this ISIN number will be deemed removed and replaced with the ISIN number US267475AB73.
|
Amount $
|
485,000,000.00 as revised by the Schedule of Increases and Decreases in the Global Note attached hereto
|
Dycom Industries, Inc. | ||||
By: | ||||
Name: | ||||
Title: | ||||
U.S. BANK, NATIONAL ASSOCIATION, as Trustee | ||||
By: | ||||
Authorized Signatory | ||||
Dated:
|
______________ | ||
Signature(s)
(Sign exactly as your name appears on the other side of this Note)
|
|||
Signature Guarantee
(Signature(s) must be guaranteed by an institution which is a member of one of the following recognized signature Guarantee Programs:
(i) The Notes Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion Program (SEMP) or (iv) another guarantee program acceptable to the Trustee.)
|
Dated:
|
______________ | ||
Signature(s)
(Sign exactly as such Person’s name appears above)
|
|||
Signature Guarantee
(Signature(s) must be guaranteed by an institution which is a member of one of the following recognized signature Guarantee Programs:
(i) The Notes Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion Program (SEMP) or (iv) another guarantee program acceptable to the Trustee.)
|
Dated:
|
______________ | ||
Signature(s)
(Sign exactly as your name appears on the other side of this Note)
|
|||
Social Security or Other Taxpayer Identification Number
|
o
|
To Dycom Industries, Inc. or a subsidiary thereof; or
|
o
|
Pursuant to a registration statement which has become effective under the Securities Act of 1933, as amended; or
|
o
|
To a qualified institutional buyer in compliance with Rule 144A under the Securities Act of 1933, as amended; or
|
o
|
Pursuant to an exemption from registration provided by Rule 144 under the Securities Act of 1933, as amended, or any other available exemption from the registration requirements of the Securities Act of 1933, as amended.
|
Dated:
|
Signed:
|
|||
Dated:
|
|||
Signature(s)
|
|||
(Sign exactly as your name appears on the other side of this Note)
|
|||
Signature Guarantee
|
Date
|
Amount of Increase in Principal Amount of Global Note
|
Amount of Decrease in Principal Amount of Global Note
|
Principal Amount of Global Note After Increase or Decrease
|
Notation by Registrar, Note Custodian or authorized signatory of Trustee
|
||||
To:
|
Dycom Industries, Inc.
|
|
11780 U.S. Highway 1, Suite 600
|
|
Palm Beach Gardens, Florida 33408
|
A/C:
|
051130730
|
From:
|
Goldman, Sachs & Co.
|
Re:
|
Base Convertible Bond Hedge Transaction
|
Ref. No:
|
SDB2502800694
|
Date:
|
September 9, 2015
|
|
Trade Date:
|
September 9, 2015
|
|
Effective Date:
|
The closing date of the initial issuance of the Convertible Securities.
|
|
Option Style:
|
Modified American, as described under “Procedures for Exercise” below.
|
|
Option Type:
|
Call
|
|
Seller:
|
Dealer
|
|
Buyer:
|
Counterparty
|
|
Shares:
|
The Common Stock of Counterparty, par value USD
0.33 1/3
(Ticker Symbol: “DY”).
|
|
Applicable Percentage:
|
50.00%
|
|
Number of Options:
|
The number of Convertible Securities constituting Firm Securities in denominations of USD1,000 principal amount issued by Counterparty on the closing date for the initial issuance of the Convertible Securities. For the avoidance of doubt, the Number of Options outstanding shall be reduced by each exercise of Options hereunder.
|
|
Option Entitlement:
|
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 a Fundamental Change Adjustment or a Discretionary Adjustment).
|
Fundamental Change Adjustment:
|
Any adjustment to the Conversion Rate pursuant to Section 4.06 of the Indenture.
|
|
Discretionary Adjustment:
|
Any adjustment to the Conversion Rate pursuant to Section 4.05(b) of the Indenture.
|
|
Strike Price:
|
As of any date, an amount in USD equal to USD1,000
divided by
the Option Entitlement as of such date. The Strike Price shall be rounded by the Calculation Agent in accordance with the applicable provisions of the Indenture.
|
|
Number of Shares:
|
As of any date, a number of Shares equal to the product of (i) the Applicable Percentage, (ii) the Number of Options and (iii) the Option Entitlement.
|
|
Premium:
|
USD50,148,000.00.
|
|
Premium Payment Date:
|
The Effective Date
|
|
Exchange:
|
The New York Stock Exchange
|
|
Related Exchange:
|
All Exchanges
|
|
Exercise Dates:
|
Each Conversion Date.
|
|
Conversion Date:
|
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).
|
|
Exercise Period:
|
The period from and excluding the Effective Date to and including the Expiration Date.
|
|
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; and means that 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, subject to “Notice of Exercise” below.
|
|
Notice Deadline:
|
In respect of any exercise of Options hereunder on any Conversion Date, 12:00 P.M., New York City time, on (i) in the case the applicable Relevant Convertible Securities will be settled by Counterparty by delivery of Shares only (together with cash in lieu of any fractional Share), the Scheduled Trading Day immediately following the relevant Conversion Date, or (ii) otherwise, the Scheduled Trading Day immediately preceding the first Scheduled Trading Day of the relevant Cash Settlement Averaging Period;
provided
that in the case of any exercise of
|
|
Options hereunder in connection with the conversion of any Relevant Convertible Securities for any Conversion Date occurring during the period from and including the 55th “Scheduled Trading Day” (as defined in the Indenture) prior to the Maturity Date (or if Counterparty has elected to settle all conversions of Convertible Securities solely in Shares (together with cash in lieu of any fractional Share) or through combination settlement with the “Specified Dollar Amount” (as defined in the Indenture) of less than USD1,000 and such election is effective on or prior to the 105
th
“Scheduled Trading Day” (as defined in the Indenture) prior to the Maturity Date, then from and including such date), to and including the Expiration Date (such period, the “
Final Conversion Period
”), the Notice Deadline shall be 12:00 P.M., New York City time, on the “Scheduled Trading Day” (as defined in the Indenture) immediately preceding the Maturity Date.
|
|
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 and such obligation in respect of such exercise shall be permanently extinguished unless Counterparty notifies Dealer in writing prior to 12:00 P.M., New York City time, on the Notice Deadline in respect of such exercise, of (i) the number of Relevant Convertible Securities being converted on the related Conversion Date (specifying, if applicable, whether all or any portion of such Convertible Securities are Convertible Securities as to which additional Shares would be added to the Conversion Rate (as defined in the Indenture) pursuant to Section 4.06 of the Indenture (the “
Make-Whole Convertible Securities
”)), (ii) the scheduled settlement date under the Indenture for the Relevant Convertible Securities for such Conversion Date, (iii) whether such Relevant Convertible Securities will be settled by Counterparty by delivery of cash, Shares or a combination of cash and Shares and, if such a combination, the “Specified Dollar Amount” (as defined in the Indenture) and (iv) the first “Scheduled Trading Day” (as defined in the Indenture) of the relevant “Observation Period” (as defined in the Indenture), if any;
provided
that in the case of any exercise of Options in connection with the conversion of any Relevant Convertible Securities for any Conversion Date occurring during the Final Conversion Period, the contents of such notice shall be as set forth in clauses (i) and (ii) above. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Securities Exchange Act of 1934, as amended (the “
Exchange Act
”) and the rules and regulations thereunder, in
|
|
respect of any election of a settlement method with respect to the Convertible Securities. For the avoidance of doubt, if Counterparty fails to give such notice when due
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
.
If applicable, the Notice of Exercise shall also contain the Settlement Method Election Provisions. Notwithstanding the foregoing, such notice (and the related exercise of Options) shall be effective with respect to Options relating to Convertible Securities with a Conversion Date occurring prior to the first day of the Final Conversion Period if given after the Notice Deadline, but prior to 4:00 PM New York City time, on the fifth Exchange Business Day following the Notice Deadline, in which event Dealer’s Delivery Obligation shall not be extinguished but may instead be adjusted by the Calculation Agent in a commercially reasonable manner to reflect the additional costs (including, but not limited to, hedging mismatches and market losses) and expenses incurred by Dealer in connection with its hedging activities (including the unwinding of any hedge position) as a result of Dealer not having received such notice on or prior to the Notice Deadline.
|
|
Notice of Final Convertible Security
|
|
Settlement Method:
|
Counterparty shall notify Dealer in writing of the final settlement method (and, if applicable, the final Specified Dollar Amount) elected (or deemed to be elected) with respect to the Convertible Securities before 4:00 P.M. (New York City time) on the earlier to occur of (x) the date on which it makes the irrevocable election of a settlement method in accordance with Section 8.01(j) of the Indenture and (y) March 15, 2021.
If applicable, the Notice of Final convertible Security Settlement Method shall also contain the Settlement Method Election Provisions.
|
|
Dealer’s Telephone Number
|
|
and Telex and/or Facsimile Number
|
|
and Contact Details for purpose of
|
|
Giving Notice:
|
As specified in Section 6(b) below.
|
|
Settlement Date:
|
For any Exercise Date, the settlement date for the cash (if any) and/or Shares (if any) to be delivered in respect of the Relevant Convertible Securities for the relevant Conversion Date under the terms of the Indenture;
provided
that the Settlement Date shall not be prior to the latest of (i) the date one Settlement Cycle following the final day of the relevant Cash Settlement Averaging Period, (ii) the Exchange Business Day immediately following the date on which Counterparty gives notice to Dealer of such Settlement Date prior to 12:00 P.M., New York City time, or (iii) the Exchange Business Day immediately following the date Counterparty provides the Notice of Delivery Obligation prior to 12:00 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 “Notice of Exercise” above, in respect of an Exercise Date, Dealer will deliver to Counterparty on the related Settlement Date (the “
Delivery Obligation
”):
|
Convertible Security Settlement Method:
|
For any Relevant Convertible Securities, if (i) Counterparty has notified Dealer in the related Notice of Exercise (or in the Notice of Final Convertible Security Settlement Method, as the case may be) 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 4.03(a)(i) of the Indenture with a Specified Dollar Amount of at least USD1,000 (a “
Cash Election
”) and (ii) such Notice of Exercise (or such Notice of Final Convertible Security Settlement Method, as the case may be) contains all of the Settlement Method Election Provisions (unless such Settlement Method Election Provisions are not required in the circumstances set forth in the parenthetical under “Settlement Method Election Provisions” below), the Convertible Security Settlement Method shall be the settlement method actually so elected by Counterparty in respect of such Relevant Convertible Securities; otherwise, the Convertible Security Settlement Method shall (x) assume Counterparty had made a Cash Election with respect to such Relevant Convertible Securities with a Specified Dollar Amount of USD1,000 per Relevant Convertible Security and (y) be calculated as if the relevant “Observation Period” pursuant to Section 4.03(a)(ii)(C) of the Indenture consisted of 100 “VWAP Trading Days” (as defined in the Indenture) commencing on (I) the second “Scheduled Trading Day” (as defined in the Indenture) after the Conversion Date for conversions with a related Conversion Date occurring prior to the Final Conversion Period or (II) the 102
nd
“Scheduled Trading Day” (as defined in the Indenture) prior to the Maturity Date for conversions with a related Conversion Date occurring during the Final Conversion Period (such “Observation Period”, subject to the provisions of this clause (y), the “
Cash Settlement Averaging Period
” for such Relevant Convertible Securities).
|
Settlement Method Election Provisions:
|
In order for the Convertible Security Settlement Method to be the settlement method actually elected by Counterparty under the Indenture in respect of the applicable Relevant Convertible Securities in accordance with “Convertible Security Settlement Method” above, the related Notice of Exercise (or Notice of Final Convertible Security Settlement Method, as the case may be) must contain in writing
|
the following representations, warranties and acknowledgments from Counterparty to Dealer as of such notice delivery date (except that such representations, warranties and acknowledgments will not be required in the case where the Relevant Convertible Securities will be settled by Counterparty by delivery of a combination of cash and Shares with a Specified Dollar Amount equal to USD1,000 where Counterparty has either (x) failed to elect a settlement method under the Indenture in respect of the applicable Relevant Convertible Securities so that Counterparty is deemed to have elected such settlement method by default pursuant to Section 4.03(a)(i) of the Indenture or (y) merely confirmed such deemed election of the default settlement method pursuant to Section 4.03(a)(i) of the Indenture):
|
|
(i) none of Counterparty and its officers or directors, or any person that controls, potentially controls, or otherwise exercises influence over, Counterparty’s decision to elect the Convertible Security Settlement Method is making such election “on the basis of” (within the meaning of Rule 10b5-1(b) under the Exchange Act) 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; Counterparty is not electing the settlement method under the Indenture for the Relevant Convertible Securities or the Convertible Security Settlement Method to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for Shares) or otherwise in violation of the Exchange Act; and Counterparty has not entered into or altered any hedging transaction relating to the Shares corresponding to or offsetting the Transaction;
|
|
(iii) Counterparty has the power 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 all necessary action to authorize such election, execution, delivery and performance;
|
|
(iv) such election and performance of its obligations under this Confirmation do not
|
|
(v) any transaction that Dealer makes with respect to the Shares during the period beginning at the time that Counterparty delivers such notice and ending at the close of business on the final day of the Cash Settlement Averaging Period shall be made by Dealer at Dealer’s sole discretion for Dealer’s own account and Counterparty shall not have, and shall not attempt to exercise, any influence over how, when, whether or at what price Dealer effects such transactions, including, without limitation, the prices paid or received by Dealer per Share pursuant to such transactions, or whether such transactions are made on any securities exchange or privately.
|
|
Notice of Delivery Obligation:
|
No later than the Exchange Business Day immediately following the last day of the relevant Cash Settlement Averaging Period, Counterparty shall give Dealer notice of the final number of Shares and/or amount of cash comprising the settlement obligation under the Indenture in respect of the Relevant Convertible Securities;
provided
that, with respect to any Exercise Date occurring during the Final Conversion Period, Counterparty may provide Dealer, within the time period set forth above, with a single notice of the aggregate number of Shares and/or amount of cash comprising the settlement obligation under the Indenture in respect of the Relevant Convertible Securities 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 shall not limit Counterparty’s obligations with respect to a Notice of Exercise or Notice of 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, the product of (i) the Applicable Percentage and (ii)(A) the Total Convertible Share Obligation Value of such Relevant Convertible Securities for such Conversion Date
minus
(B) 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)
|
multiplied by
(B) the Share Obligation Value Price
plus
(ii) an amount equal to (A) the fractional Shares, if any, that would have resulted but for the rounding under (i)(A) above
multiplied by
(B) the Share Obligation Value Price
plus
(iii) an amount of cash equal to the aggregate amount of cash that Counterparty is obligated to deliver to the holder(s) of Relevant Convertible Securities for such Conversion Date pursuant to the Indenture;
provided
that, the Total Convertible Share Obligation Value shall be determined excluding 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 pursuant to a Fundamental Change Adjustment or a Discretionary Adjustment 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.
|
|
Share Obligation Value Price:
|
The opening price as displayed under the heading “Op” on Bloomberg page “DY.N <Equity>“ (or any successor thereto) on the applicable Settlement Date.
|
|
Other Applicable Provisions:
|
To the extent Dealer is obligated to deliver Shares hereunder, the provisions of Sections 9.8, 9.9, 9.10 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.
|
|
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 Sections 4.04(a) through (e) of the Indenture that the Calculation Agent determines
|
|
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 or its board of directors (including, without limitation, pursuant to Section 4.05(a) of the Indenture or pursuant to Section 4.07(a) of the Indenture 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 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 of the Transaction in a commercially reasonable manner.
|
|
Merger Events:
|
Notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means any “Merger Event” as defined in Section 4.07(a) of the Indenture.
|
|
Consequences of Merger Events:
|
Notwithstanding Section 12.2 of the Equity Definitions, upon the occurrence of a Merger Event that the Calculation Agent determines by reference to Section 4.07 of the Indenture would result in an adjustment under the Indenture, the Calculation Agent shall 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;
provided
that such adjustment shall be made without regard to any adjustment to the Conversion Rate pursuant to a Fundamental Change Adjustment or a Discretionary Adjustment; and
provided further
that the Calculation Agent may limit or alter any such adjustment referenced in this paragraph in a commercially reasonable manner so that the fair value of the Transaction to Dealer is not reduced as a result of such adjustment; and
provided further
that if, with respect to a Merger Event, (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 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 will not be a corporation organized under the laws of the United States, any state thereof or the District of Columbia and/or will not be the Issuer following such Merger Event, in either case, Dealer may elect (in its sole discretion) for Cancellation and Payment (Calculation Agent Determination) to apply.
|
|
Notice of Merger Consideration and
|
|
Consequences:
|
Upon the occurrence of a Merger Event that causes the Shares to be converted into the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), Counterparty shall reasonably promptly (but in any event prior to the relevant merger date) notify the Calculation Agent of (i) the type and amount of consideration that a holder of Shares would have been entitled to in the case of reclassifications, consolidations, mergers, sales or transfers of assets or other transactions that cause Shares to be converted into the right to receive more than a single type of consideration, (ii) if holders of Shares affirmatively make such an election, the weighted average of the types and amounts of consideration to be received by the holders of Shares that affirmatively make such an election, and (iii) the details of the adjustment to be made under the Indenture in respect of such Merger Event.
|
|
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 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 such exchange or quotation system, such exchange or quotation system shall thereafter be deemed to be the Exchange.
|
|
Additional Termination Event(s):
|
Notwithstanding anything to the contrary in the Equity Definitions, if, as a result of an Extraordinary Event, any Transaction would be cancelled or terminated (whether in whole or in part) pursuant to Article 12 of the Equity Definitions, an Additional
|
|
(a) Change in Law:
|
Applicable;
provided
that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the phrase “the interpretation” in the third line thereof with the phrase “, or public announcement of, the formal or informal interpretation”, (ii) by adding the phrase “and/or Hedge Position” after the word “Shares” in clause (X) thereof and (iii) by immediately following the word “Transaction” in clause (X) thereof, adding the phrase “in the manner contemplated by the Hedging Party on the Trade Date”;
provided
,
further
that (i) any determination as to whether (A) the adoption of or any change in any applicable law or regulation (including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute) or (B) the promulgation of or any change in the interpretation by any court, tribunal or regulatory authority with competent jurisdiction of any applicable law or regulation (including any action taken by a taxing authority), in each case, constitutes a “Change in Law” shall be made without regard to Section 739 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 or any similar legal certainty provision in any legislation enacted, or rule or regulation promulgated, on or after the Trade Date, and (ii) Section 12.9(a)(ii) of the Equity Definitions is hereby amended by replacing the parenthetical beginning after the word “regulation” in the second line thereof the words “(including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute)”.
|
|
(b) Failure to Deliver:
|
Applicable
|
|
(c) Insolvency Filing:
|
Applicable
|
|
(d) Hedging Disruption:
|
Applicable;
provided
that:
|
|
(i)
|
Section 12.9(a)(v) of the Equity Definitions is hereby modified by:
|
|
(a)
|
inserting the following words at the end of clause (A) thereof: “in the manner contemplated by the Hedging Party on the Trade Date”;
|
|
(b)
|
inserting the following two phrases at the end of such Section:
|
|
(ii)
|
Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line thereof, after the words “to terminate the Transaction”, the words “or a portion of the Transaction affected by such Hedging Disruption”.
|
|
(e) Increased Cost of Hedging:
|
Applicable
|
|
Hedging Party:
|
Dealer
|
|
Determining Party:
|
Dealer
|
|
Non-Reliance:
|
Applicable
|
|
Agreements and Acknowledgments
|
|
Regarding Hedging Activities:
|
Applicable
|
|
Additional Acknowledgments:
|
Applicable
|
|
3.
Calculation Agent
:
|
Dealer;
provided
that all calculations and determinations made by the Calculation Agent shall be made in good faith and in a commercially reasonable manner;
provided further
that, upon receipt of written request from Counterparty, the Calculation Agent shall promptly provide Counterparty with a written explanation describing in reasonable detail any calculation, adjustment or determination made by it (including any quotations, market data or information from internal or external sources used in making such calculation, adjustment or determination, as the case may be, but without disclosing Dealer’s proprietary models or other information that may be proprietary or subject to contractual, legal or regulatory obligations to not disclose such information), and shall use commercially reasonable efforts to provide such written explanation within five Exchange Business Days from the receipt of such request.
|
|
(a)
|
Address for notices or communications to Counterparty:
|
|
To:
|
Dycom Industries, Inc.
|
|
11780 U.S. Highway 1, Suite 600
|
|
Palm Beach Gardens, FL 33408
|
|
Attn:
|
General Counsel
|
|
Telephone:
|
(561) 627-7171
|
|
Facsimile:
|
(561) 627-7709
|
|
(b)
|
Address for notices or communications to Dealer:
|
|
To:
|
Goldman, Sachs & Co.
|
|
200 West Street
|
|
New York, NY 10282-2198
|
|
Attn:
|
Bennett Schachter
|
|
Structured Equity Group
|
|
Telephone:
|
212-902-2568
|
|
Facsimile:
|
212-902-3000
|
|
Email:
|
bennett.schachter@gs.com
|
|
With a copy to:
|
|
Attn:
|
Daniel Josephs
|
|
Structured Equity Group
|
|
Telephone:
|
212-902-8193
|
|
Facsimile:
|
917-977-3943
|
|
Email
:
|
daniel.josephs@gs.com
|
Share Termination Alternative:
|
If applicable, means that Dealer shall deliver to Counterparty the Share Termination Delivery Property on the date on which the Payment Obligation would otherwise be due pursuant to the Transaction, including, without limitation, pursuant to “Consequences of Merger Events” above or Section 12.2, 12.6, 12.7 or 12.9 of the Equity Definitions or Section 6(d)(ii) of the Agreement, as applicable, or such later date or dates as the Calculation Agent may reasonably determine (the “
Share Termination Payment Date
”), in satisfaction of the Payment Obligation.
|
Property:
|
A number of Share Termination Delivery Units, as calculated by the Calculation Agent, equal to the Payment Obligation divided by the Share Termination Unit Price. The Calculation Agent shall adjust the Share Termination Delivery Property by replacing any fractional portion of the aggregate amount of a security therein with an amount of cash equal to the value of such fractional security based on the values used to calculate the Share Termination Unit Price.
|
Share Termination Unit Price:
|
The value of property contained in one Share Termination Delivery Unit on the date such Share Termination Delivery Units are to be delivered as Share Termination Delivery Property, as determined by the Calculation Agent in its discretion by commercially reasonable means and notified by the Calculation Agent to Dealer at the time of notification of the Payment Obligation.
|
Share Termination Delivery Unit:
|
In the case of a Termination Event, Event of Default, Delisting or Additional Disruption Event, one Share or, in the case of an Insolvency, Nationalization or Merger Event, one Share or a unit consisting of the number or amount of each type of property received by a holder of one Share (without consideration of any requirement to pay cash or other consideration in lieu of fractional amounts of any securities) in such Insolvency, Nationalization or Merger Event, as applicable. If such Insolvency, Nationalization or Merger Event involves a choice of consideration to be received by holders, such holder shall be deemed to have elected to receive the maximum possible amount of cash.
|
Failure to Deliver:
|
Applicable
|
Other Applicable Provisions:
|
If Share Termination Alternative is applicable, the provisions of Sections 9.8, 9.9, 9.10 and 9.11 of the Equity Definitions will be applicable as if “Physical Settlement” applied to the Transaction, except that all references to “Shares” shall be read as references to “Share Termination Delivery Units”;
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 as a result of the fact that Counterparty is the issuer of any Share Termination Delivery Units (or any part thereof).
|
Yours faithfully, | ||||
GOLDMAN, SACHS & CO. | ||||
By: | /s/ Eugene Parloff | |||
Name: | Eugene Parloff | |||
Title: | Vice President | |||
Agreed and Accepted By: | |||
DYCOM INDUSTRIES , INC. | |||
By: | /s/ H. Andrew DeFerrari | ||
Name: | H. Andrew DeFerrari | ||
Title: | Senior Vice President & Chief Financial Officer | ||
To:
|
Dycom Industries, Inc.
|
|
11780 U.S. Highway 1, Suite 600
|
|
Palm Beach Gardens, Florida 33408
|
From:
|
Bank of America, N.A.
|
Re:
|
Base Convertible Bond Hedge Transaction
|
Date:
|
September 9, 2015
|
|
Trade Date:
|
September 9, 2015
|
|
Effective Date:
|
The closing date of the initial issuance of the Convertible Securities.
|
|
Option Style:
|
Modified American, as described under “Procedures for Exercise” below.
|
|
Option Type:
|
Call
|
|
Seller:
|
Dealer
|
|
Buyer:
|
Counterparty
|
|
Shares:
|
The Common Stock of Counterparty, par value USD
0.33 1/3
(Ticker Symbol: “DY”).
|
|
Applicable Percentage:
|
30.00%
|
|
Number of Options:
|
The number of Convertible Securities constituting Firm Securities in denominations of USD1,000 principal amount issued by Counterparty on the closing date for the initial issuance of the Convertible Securities. For the avoidance of doubt, the Number of Options outstanding shall be reduced by each exercise of Options hereunder.
|
|
Option Entitlement:
|
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 a Fundamental Change Adjustment or a Discretionary Adjustment).
|
Fundamental Change Adjustment:
|
Any adjustment to the Conversion Rate pursuant to Section 4.06 of the Indenture.
|
|
Discretionary Adjustment:
|
Any adjustment to the Conversion Rate pursuant to Section 4.05(b) of the Indenture.
|
|
Strike Price:
|
As of any date, an amount in USD equal to USD1,000
divided by
the Option Entitlement as of such date. The Strike Price shall be rounded by the Calculation Agent in accordance with the applicable provisions of the Indenture.
|
|
Number of Shares:
|
As of any date, a number of Shares equal to the product of (i) the Applicable Percentage, (ii) the Number of Options and (iii) the Option Entitlement.
|
|
Premium:
|
USD30,088,800.00.
|
|
Premium Payment Date:
|
The Effective Date
|
|
Exchange:
|
The New York Stock Exchange
|
|
Related Exchange:
|
All Exchanges
|
|
Exercise Dates:
|
Each Conversion Date.
|
|
Conversion Date:
|
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).
|
|
Exercise Period:
|
The period from and excluding the Effective Date to and including the Expiration Date.
|
|
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).
|
|
Conversion Dates:
|
Applicable; and means that 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, subject to “Notice of Exercise” below.
|
|
Notice Deadline:
|
In respect of any exercise of Options hereunder on any Conversion Date, 12:00 P.M., New York City time, on (i) in the case the applicable Relevant Convertible Securities will be settled by Counterparty by delivery of Shares only (together with cash in lieu of any fractional Share), the Scheduled Trading Day immediately following the relevant Conversion Date, or (ii) otherwise, the Scheduled Trading Day
|
|
|
provided
that in the case of any exercise of Options hereunder in connection with the conversion of any Relevant Convertible Securities for any Conversion Date occurring during the period from and including the 55th “Scheduled Trading Day” (as defined in the Indenture) prior to the Maturity Date (or if Counterparty has elected to settle all conversions of Convertible Securities solely in Shares (together with cash in lieu of any fractional Share) or through combination settlement with the “Specified Dollar Amount” (as defined in the Indenture) of less than USD1,000 and such election is effective on or prior to the 105
th
“Scheduled Trading Day” (as defined in the Indenture) prior to the Maturity Date, then from and including such date), to and including the Expiration Date (such period, the “
Final Conversion Period
”), the Notice Deadline shall be 12:00 P.M., New York City time, on the “Scheduled Trading Day” (as defined in the Indenture) immediately preceding the Maturity Date.
|
|
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 and such obligation in respect of such exercise shall be permanently extinguished unless Counterparty notifies Dealer in writing prior to 12:00 P.M., New York City time, on the Notice Deadline in respect of such exercise, of (i) the number of Relevant Convertible Securities being converted on the related Conversion Date (specifying, if applicable, whether all or any portion of such Convertible Securities are Convertible Securities as to which additional Shares would be added to the Conversion Rate (as defined in the Indenture) pursuant to Section 4.06 of the Indenture (the “
Make-Whole Convertible Securities
”)), (ii) the scheduled settlement date under the Indenture for the Relevant Convertible Securities for such Conversion Date, (iii) whether such Relevant Convertible Securities will be settled by Counterparty by delivery of cash, Shares or a combination of cash and Shares and, if such a combination, the “Specified Dollar Amount” (as defined in the Indenture) and (iv) the first “Scheduled Trading Day” (as defined in the Indenture) of the relevant “Observation Period” (as defined in the Indenture), if any;
provided
that in the case of any exercise of Options in connection with the conversion of any Relevant Convertible Securities for any Conversion Date occurring during the Final Conversion Period, the contents of such notice shall be as set forth in clauses (i) and (ii) above. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular
|
|
|
Section 9 and Section 10(b) of the Securities Exchange Act of 1934, as amended (the “
Exchange Act
”) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Securities. For the avoidance of doubt, if Counterparty fails to give such notice when due
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
.
If applicable, the Notice of Exercise shall also contain the Settlement Method Election Provisions. Notwithstanding the foregoing, such notice (and the related exercise of Options) shall be effective with respect to Options relating to Convertible Securities with a Conversion Date occurring prior to the first day of the Final Conversion Period if given after the Notice Deadline, but prior to 4:00 PM New York City time, on the fifth Exchange Business Day following the Notice Deadline, in which event Dealer’s Delivery Obligation shall not be extinguished but may instead be adjusted by the Calculation Agent in a commercially reasonable manner to reflect the additional costs (including, but not limited to, hedging mismatches and market losses) and expenses incurred by Dealer in connection with its hedging activities (including the unwinding of any hedge position) as a result of Dealer not having received such notice on or prior to the Notice Deadline.
|
|
Notice of Final Convertible Security
|
|
Settlement Method:
|
Counterparty shall notify Dealer in writing of the final settlement method (and, if applicable, the final Specified Dollar Amount) elected (or deemed to be elected) with respect to the Convertible Securities before 4:00 P.M. (New York City time) on the earlier to occur of (x) the date on which it makes the irrevocable election of a settlement method in accordance with Section 8.01(j) of the Indenture and (y) March 15, 2021.
If applicable, the Notice of Final convertible Security Settlement Method shall also contain the Settlement Method Election Provisions.
|
|
Dealer’s Telephone Number
|
and Telex and/or Facsimile Number
|
and Contact Details for purpose of
|
|
Giving Notice:
|
As specified in Section 6(b) below.
|
|
Settlement Date:
|
For any Exercise Date, the settlement date for the cash (if any) and/or Shares (if any) to be delivered in respect of the Relevant Convertible Securities for the relevant Conversion Date under the terms of the Indenture;
provided
that the Settlement Date shall not be prior to the latest of (i) the date one Settlement Cycle following the final day of the relevant Cash Settlement Averaging Period, (ii) the Exchange Business Day immediately following the date on which Counterparty gives notice to Dealer of such Settlement Date prior to 12:00 P.M., New York City time, or (iii) the Exchange Business Day immediately following the date Counterparty provides the Notice of Delivery Obligation prior to 12:00 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 “Notice of Exercise” above, in respect of an Exercise Date, Dealer will deliver to Counterparty on the related Settlement Date (the “
Delivery Obligation
”):
|
Convertible Security Settlement Method:
|
For any Relevant Convertible Securities, if (i) Counterparty has notified Dealer in the related Notice of Exercise (or in the Notice of Final Convertible Security Settlement Method, as the case may be) 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 4.03(a)(i) of the Indenture with a Specified Dollar Amount of at least USD1,000 (a “
Cash Election
”) and (ii) such Notice of Exercise (or such Notice of Final Convertible Security Settlement Method, as the case may be) contains all of the Settlement Method Election Provisions (unless such Settlement Method Election Provisions are not required in the circumstances set forth in the parenthetical under “Settlement Method Election Provisions” below), the Convertible Security Settlement Method shall be the settlement method actually so elected by Counterparty in respect of such Relevant Convertible Securities; otherwise, the Convertible Security Settlement Method shall (x) assume Counterparty had made a Cash Election with respect to such Relevant Convertible Securities with a Specified Dollar Amount of USD1,000 per Relevant Convertible Security and (y) be calculated as if the relevant “Observation Period” pursuant to Section 4.03(a)(ii)(C) of the Indenture consisted of 100 “VWAP Trading Days” (as defined in the Indenture) commencing on (I) the second “Scheduled Trading Day” (as defined in the Indenture) after the Conversion Date for conversions with a related Conversion Date occurring prior to the Final Conversion Period or (II) the 102
nd
“Scheduled Trading Day” (as defined in the Indenture) prior to the Maturity Date for conversions with a related Conversion Date occurring during the Final Conversion Period (such “Observation Period”, subject to the provisions of this clause (y), the “
Cash Settlement Averaging Period
” for such Relevant Convertible Securities).
|
Settlement Method Election Provisions:
|
In order for the Convertible Security Settlement Method to be the settlement method actually elected by Counterparty under the Indenture in respect of the applicable Relevant Convertible Securities in accordance with “Convertible Security Settlement
|
|
Method” above, the related Notice of Exercise (or Notice of Final Convertible Security Settlement Method, as the case may be) must contain in writing the following representations, warranties and acknowledgments from Counterparty to Dealer as of such notice delivery date (except that such representations, warranties and acknowledgments will not be required in the case where the Relevant Convertible Securities will be settled by Counterparty by delivery of a combination of cash and Shares with a Specified Dollar Amount equal to USD1,000 where Counterparty has either (x) failed to elect a settlement method under the Indenture in respect of the applicable Relevant Convertible Securities so that Counterparty is deemed to have elected such settlement method by default pursuant to Section 4.03(a)(i) of the Indenture or (y) merely confirmed such deemed election of the default settlement method pursuant to Section 4.03(a)(i) of the Indenture):
|
|
(i) none of Counterparty and its officers or directors, or any person that controls, potentially controls, or otherwise exercises influence over, Counterparty’s decision to elect the Convertible Security Settlement Method is making such election “on the basis of” (within the meaning of Rule 10b5-1(b) under the Exchange Act) 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; Counterparty is not electing the settlement method under the Indenture for the Relevant Convertible Securities or the Convertible Security Settlement Method to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for Shares) or otherwise in violation of the Exchange Act; and Counterparty has not entered into or altered any hedging transaction relating to the Shares corresponding to or offsetting the Transaction;
|
|
(iii) Counterparty has the power 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 all necessary action to authorize
|
|
(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 constitutional documents, any order or judgment of any court or other agency of government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets; and
|
|
(v) any transaction that Dealer makes with respect to the Shares during the period beginning at the time that Counterparty delivers such notice and ending at the close of business on the final day of the Cash Settlement Averaging Period shall be made by Dealer at Dealer’s sole discretion for Dealer’s own account and Counterparty shall not have, and shall not attempt to exercise, any influence over how, when, whether or at what price Dealer effects such transactions, including, without limitation, the prices paid or received by Dealer per Share pursuant to such transactions, or whether such transactions are made on any securities exchange or privately.
|
|
Notice of Delivery Obligation:
|
No later than the Exchange Business Day immediately following the last day of the relevant Cash Settlement Averaging Period, Counterparty shall give Dealer notice of the final number of Shares and/or amount of cash comprising the settlement obligation under the Indenture in respect of the Relevant Convertible Securities;
provided
that, with respect to any Exercise Date occurring during the Final Conversion Period, Counterparty may provide Dealer, within the time period set forth above, with a single notice of the aggregate number of Shares and/or amount of cash comprising the settlement obligation under the Indenture in respect of the Relevant Convertible Securities 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 shall not limit Counterparty’s obligations with respect to a Notice of Exercise or Notice of 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, the product of (i) the Applicable Percentage and (ii)(A) the Total Convertible Share Obligation Value of such Relevant Convertible Securities for such Conversion Date
minus
(B) 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 (except that such number of Shares shall be determined without taking into consideration any rounding pursuant to Section 4.03(b) of the Indenture)
multiplied by
(B) the Share Obligation Value Price
plus
(ii) an amount equal to (A) the fractional Shares, if any, that would have resulted but for the rounding under (i)(A) above
multiplied by
(B) the Share Obligation Value Price
plus
(iii) an amount of cash equal to the aggregate amount of cash that Counterparty is obligated to deliver to the holder(s) of Relevant Convertible Securities for such Conversion Date pursuant to the Indenture;
provided
that, the Total Convertible Share Obligation Value shall be determined excluding 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 pursuant to a Fundamental Change Adjustment or a Discretionary Adjustment 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.
|
|
Share Obligation Value Price:
|
The opening price as displayed under the heading “Op” on Bloomberg page “DY.N <Equity>“ (or any successor thereto) on the applicable Settlement Date.
|
|
Other Applicable Provisions:
|
To the extent Dealer is obligated to deliver Shares hereunder, the provisions of Sections 9.8, 9.9, 9.10 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.
|
|
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 Sections 4.04(a) through (e) of the Indenture that the Calculation Agent determines would result in an adjustment under the Indenture by reference to such Section thereof, the Calculation Agent shall 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, subject to “Discretionary Adjustments” below.
|
|
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 or its board of directors (including, without limitation, pursuant to Section 4.05(a) of the Indenture or pursuant to Section 4.07(a) of the Indenture 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 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 of the Transaction in a commercially reasonable manner.
|
|
Merger Events:
|
Notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means any “Merger Event” as defined in Section 4.07(a) of the Indenture.
|
|
Consequences of Merger Events:
|
Notwithstanding Section 12.2 of the Equity Definitions, upon the occurrence of a Merger Event that the Calculation Agent determines by reference to Section 4.07 of the Indenture would result in an adjustment under the Indenture, the Calculation Agent shall 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;
provided
that such adjustment shall be made without regard to any adjustment to the Conversion Rate pursuant to a Fundamental Change Adjustment or a Discretionary Adjustment; and
provided further
that the Calculation Agent may limit or alter any such adjustment referenced in this paragraph in a commercially reasonable manner so that the fair value of the Transaction to Dealer is not reduced as a result of such adjustment; and
provided further
that if, with respect to a Merger Event, (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 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 will not be a corporation organized under the laws of the United States, any state thereof or the District of Columbia and/or will not be the Issuer following such Merger Event, in either case, Dealer may elect (in its sole discretion) for Cancellation and Payment (Calculation Agent Determination) to apply.
|
|
Notice of Merger Consideration and
|
|
Consequences:
|
Upon the occurrence of a Merger Event that causes the Shares to be converted into the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), Counterparty shall reasonably promptly (but in any event prior to the relevant merger date) notify the Calculation Agent of (i) the type and amount of consideration that a holder of Shares would have been entitled to in the case of reclassifications, consolidations, mergers, sales or transfers of assets or other transactions that cause Shares to be converted into the right to receive more than a single type of consideration, (ii) if holders of Shares affirmatively make such an election, the weighted average of the types and amounts of consideration to be received by the holders of Shares that affirmatively make such an election, and (iii) the details of the adjustment to be made under the Indenture in respect of such Merger Event.
|
|
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 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 such exchange or quotation system, such exchange or quotation system shall thereafter be deemed to be the Exchange.
|
|
Additional Termination Event(s):
|
Notwithstanding anything to the contrary in the Equity Definitions, if, as a result of an Extraordinary
|
|
|
Event, any Transaction would be cancelled or terminated (whether in whole or in part) pursuant to Article 12 of the Equity Definitions, an Additional Termination Event (with such terminated Transaction(s) (or portions thereof) being the Affected Transaction(s) and Counterparty being the sole Affected Party) shall be deemed to occur, and, in lieu of Sections 12.7, 12.8 and 12.9 of the Equity Definitions, Section 6 of the Agreement shall apply to such Affected Transaction(s).
|
|
(a) Change in Law:
|
Applicable;
provided
that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the phrase “the interpretation” in the third line thereof with the phrase “, or public announcement of, the formal or informal interpretation”, (ii) by adding the phrase “and/or Hedge Position” after the word “Shares” in clause (X) thereof and (iii) by immediately following the word “Transaction” in clause (X) thereof, adding the phrase “in the manner contemplated by the Hedging Party on the Trade Date”;
provided
,
further
that (i) any determination as to whether (A) the adoption of or any change in any applicable law or regulation (including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute) or (B) the promulgation of or any change in the interpretation by any court, tribunal or regulatory authority with competent jurisdiction of any applicable law or regulation (including any action taken by a taxing authority), in each case, constitutes a “Change in Law” shall be made without regard to Section 739 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 or any similar legal certainty provision in any legislation enacted, or rule or regulation promulgated, on or after the Trade Date, and (ii) Section 12.9(a)(ii) of the Equity Definitions is hereby amended by replacing the parenthetical beginning after the word “regulation” in the second line thereof the words “(including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute)”.
|
|
(b) Failure to Deliver:
|
Applicable
|
|
(c) Insolvency Filing:
|
Applicable
|
|
(d) Hedging Disruption:
|
Applicable;
provided
that:
|
|
(i)
|
Section 12.9(a)(v) of the Equity Definitions is hereby modified by:
|
|
(a)
|
inserting the following words at the end of clause (A) thereof: “in the manner contemplated by the Hedging Party on the Trade Date”;
|
|
(b)
|
inserting the following two phrases at the end of such Section:
|
|
(ii)
|
Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line thereof, after the words “to terminate the Transaction”, the words “or a portion of the Transaction affected by such Hedging Disruption”.
|
|
(e) Increased Cost of Hedging:
|
Applicable
|
|
Hedging Party:
|
Dealer
|
|
Determining Party:
|
Dealer
|
|
Non-Reliance:
|
Applicable
|
Agreements and Acknowledgments
|
|
Regarding Hedging Activities:
|
Applicable
|
|
Additional Acknowledgments:
|
Applicable
|
|
3.
Calculation Agent
:
|
Dealer;
provided
that all calculations and determinations made by the Calculation Agent shall be made in good faith and in a commercially reasonable manner;
provided further
that, upon receipt of written request from Counterparty, the Calculation Agent shall promptly provide Counterparty with a written explanation describing in reasonable detail any calculation, adjustment or determination made by it (including any quotations, market data or information from internal or external sources used in making such calculation, adjustment or determination, as the case may be, but without disclosing Dealer’s proprietary models or other information that may be proprietary or subject to contractual, legal or regulatory obligations to not disclose such information), and shall use commercially reasonable efforts to provide such written explanation within five Exchange Business Days from the receipt of such request.
|
|
(a)
|
Address for notices or communications to Counterparty:
|
|
To:
|
Dycom Industries, Inc.
|
|
11780 U.S. Highway 1, Suite 600
|
|
Palm Beach Gardens, FL 33408
|
|
Attn:
|
General Counsel
|
|
Telephone:
|
(561) 627-7171
|
|
Facsimile:
|
(561) 627-7709
|
|
(b)
|
Address for notices or communications to Dealer:
|
|
To:
|
Bank of America, N.A.
|
|
c/o Merrill Lynch, Pierce, Fenner & Smith Incorporated
|
|
One Bryant Park
|
|
New York, NY 10036
|
|
Attn:
|
Peter Tucker, Assistant General Counsel
|
|
Telephone:
|
646-855-5821
|
|
Facsimile:
|
646-822-5633
|
Share Termination Alternative:
|
If applicable, means that Dealer shall deliver to Counterparty the Share Termination Delivery Property on the date on which the Payment Obligation would otherwise be due pursuant to the Transaction, including, without limitation, pursuant to “Consequences of Merger Events” above or Section 12.2, 12.6, 12.7 or 12.9 of the Equity Definitions or Section 6(d)(ii) of the Agreement, as applicable, or such later date or dates as the Calculation Agent may reasonably determine (the “
Share Termination Payment Date
”), in satisfaction of the
|
|
Payment Obligation.
|
Property:
|
A number of Share Termination Delivery Units, as calculated by the Calculation Agent, equal to the Payment Obligation divided by the Share Termination Unit Price. The Calculation Agent shall adjust the Share Termination Delivery Property by replacing any fractional portion of the aggregate amount of a security therein with an amount of cash equal to the value of such fractional security based on the values used to calculate the Share Termination Unit Price.
|
Share Termination Unit Price:
|
The value of property contained in one Share Termination Delivery Unit on the date such Share Termination Delivery Units are to be delivered as Share Termination Delivery Property, as determined by the Calculation Agent in its discretion by commercially reasonable means and notified by the Calculation Agent to Dealer at the time of notification of the Payment Obligation.
|
Share Termination Delivery Unit:
|
In the case of a Termination Event, Event of Default, Delisting or Additional Disruption Event, one Share or, in the case of an Insolvency, Nationalization or Merger Event, one Share or a unit consisting of the number or amount of each type of property received by a holder of one Share (without consideration of any requirement to pay cash or other consideration in lieu of fractional amounts of any securities) in such Insolvency, Nationalization or Merger Event, as applicable. If such Insolvency, Nationalization or Merger Event involves a choice of consideration to be received by holders, such holder shall be deemed to have elected to receive the maximum possible amount of cash.
|
Failure to Deliver:
|
Applicable
|
Other Applicable Provisions:
|
If Share Termination Alternative is applicable, the provisions of Sections 9.8, 9.9, 9.10 and 9.11 of the Equity Definitions will be applicable as if “Physical Settlement” applied to the Transaction, except that all references to “Shares” shall be read as references to “Share Termination Delivery Units”;
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 as a result of the fact that Counterparty is the issuer of any Share Termination Delivery Units (or any part thereof).
|
Yours faithfully, | ||||
BANK OF AMERICA, N.A. | ||||
By: | /s/ Christopher A. Hutmaker | |||
Name: | Christopher A. Hutmaker | |||
Title: | Managing Director | |||
Agreed and Accepted By: | |||
DYCOM INDUSTRIES , INC. | |||
By: | /s/ H. Andrew DeFerrari | ||
Name: | H. Andrew DeFerrari | ||
Title: | Senior Vice President & Chief Financial Officer | ||
Wells Fargo Bank, National Association
(“Wells Fargo”)
|
375 Park Avenue
|
New York, NY 10152
|
Attn: Structuring Services Group
|
Telephone: 212-214-6101
|
Facsimile: 212-214-5913
|
Opening Transaction
|
|
To:
|
Dycom Industries, Inc.
11780 U.S. Highway 1, Suite 600
Palm Beach Gardens, Florida 33408
|
From:
|
Wells Fargo Bank, National Association
|
Re:
|
Base Convertible Bond Hedge Transaction
|
Date:
|
|
Trade Date:
|
September 9, 2015
|
|
Effective Date:
|
The closing date of the initial issuance of the Convertible Securities.
|
|
Option Style:
|
Modified American, as described under “Procedures for Exercise” below.
|
|
Option Type:
|
Call
|
|
Seller:
|
Dealer
|
|
Buyer:
|
Counterparty
|
|
Shares:
|
The Common Stock of Counterparty, par value USD
0.33 1/3
(Ticker Symbol: “DY”).
|
|
Applicable Percentage:
|
20.00%
|
|
Number of Options:
|
The number of Convertible Securities constituting Firm Securities in denominations of USD1,000 principal amount issued by Counterparty on the closing date for the initial issuance of the Convertible Securities. For the avoidance of doubt, the Number of Options outstanding shall be reduced by each exercise of Options hereunder.
|
|
Option Entitlement:
|
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 a Fundamental Change Adjustment or a Discretionary Adjustment).
|
Fundamental Change Adjustment:
|
Any adjustment to the Conversion Rate pursuant to Section 4.06 of the Indenture.
|
|
Discretionary Adjustment:
|
Any adjustment to the Conversion Rate pursuant to Section 4.05(b) of the Indenture.
|
|
Strike Price:
|
As of any date, an amount in USD equal to USD1,000
divided by
the Option Entitlement as of such date. The Strike Price shall be rounded by the Calculation Agent in accordance with the applicable provisions of the Indenture.
|
|
Number of Shares:
|
As of any date, a number of Shares equal to the product of (i) the Applicable Percentage, (ii) the Number of Options and (iii) the Option Entitlement.
|
|
Premium:
|
USD20,059,200.00.
|
|
Premium Payment Date:
|
The Effective Date
|
|
Exchange:
|
The New York Stock Exchange
|
|
Related Exchange:
|
All Exchanges
|
|
Exercise Dates:
|
Each Conversion Date.
|
|
Conversion Date:
|
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).
|
|
Exercise Period:
|
The period from and excluding the Effective Date to and including the Expiration Date.
|
|
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).
|
|
Conversion Dates:
|
Applicable; and means that 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, subject to “Notice of Exercise” below.
|
|
Notice Deadline:
|
In respect of any exercise of Options hereunder on any Conversion Date, 12:00 P.M., New York City time, on (i) in the case the applicable Relevant Convertible Securities will be settled by Counterparty by delivery of Shares only (together with cash in lieu of any fractional Share), the Scheduled Trading Day
|
|
|
immediately following the relevant Conversion Date, or (ii) otherwise, the Scheduled Trading Day immediately preceding the first Scheduled Trading Day of the relevant Cash Settlement Averaging Period;
provided
that in the case of any exercise of Options hereunder in connection with the conversion of any Relevant Convertible Securities for any Conversion Date occurring during the period from and including the 55th “Scheduled Trading Day” (as defined in the Indenture) prior to the Maturity Date (or if Counterparty has elected to settle all conversions of Convertible Securities solely in Shares (together with cash in lieu of any fractional Share) or through combination settlement with the “Specified Dollar Amount” (as defined in the Indenture) of less than USD1,000 and such election is effective on or prior to the 105
th
“Scheduled Trading Day” (as defined in the Indenture) prior to the Maturity Date, then from and including such date), to and including the Expiration Date (such period, the “
Final Conversion Period
”), the Notice Deadline shall be 12:00 P.M., New York City time, on the “Scheduled Trading Day” (as defined in the Indenture) immediately preceding the Maturity Date.
|
|
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 and such obligation in respect of such exercise shall be permanently extinguished unless Counterparty notifies Dealer in writing prior to 12:00 P.M., New York City time, on the Notice Deadline in respect of such exercise, of (i) the number of Relevant Convertible Securities being converted on the related Conversion Date (specifying, if applicable, whether all or any portion of such Convertible Securities are Convertible Securities as to which additional Shares would be added to the Conversion Rate (as defined in the Indenture) pursuant to Section 4.06 of the Indenture (the “
Make-Whole Convertible Securities
”)), (ii) the scheduled settlement date under the Indenture for the Relevant Convertible Securities for such Conversion Date, (iii) whether such Relevant Convertible Securities will be settled by Counterparty by delivery of cash, Shares or a combination of cash and Shares and, if such a combination, the “Specified Dollar Amount” (as defined in the Indenture) and (iv) the first “Scheduled Trading Day” (as defined in the Indenture) of the relevant “Observation Period” (as defined in the Indenture), if any;
provided
that in the case of any exercise of Options in connection with the conversion of any Relevant Convertible Securities for any Conversion Date occurring during the Final Conversion Period, the contents of such notice shall be as set forth in clauses (i) and (ii)
|
|
|
above. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Securities Exchange Act of 1934, as amended (the “
Exchange Act
”) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Securities.
For the avoidance of doubt, if Counterparty fails to give such notice when due
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
.
If applicable, the Notice of Exercise shall also contain the Settlement Method Election Provisions. Notwithstanding the foregoing, such notice (and the related exercise of Options) shall be effective with respect to Options relating to Convertible Securities with a Conversion Date occurring prior to the first day of the Final Conversion Period if given after the Notice Deadline, but prior to 4:00 PM New York City time, on the fifth Exchange Business Day following the Notice Deadline, in which event Dealer’s Delivery Obligation shall not be extinguished but may instead be adjusted by the Calculation Agent in a commercially reasonable manner to reflect the additional costs (including, but not limited to, hedging mismatches and market losses) and expenses incurred by Dealer in connection with its hedging activities (including the unwinding of any hedge position) as a result of Dealer not having received such notice on or prior to the Notice Deadline.
|
|
Settlement Method:
|
Counterparty shall notify Dealer in writing of the final settlement method (and, if applicable, the final Specified Dollar Amount) elected (or deemed to be elected) with respect to the Convertible Securities before 4:00 P.M. (New York City time) on the earlier to occur of (x) the date on which it makes the irrevocable election of a settlement method in accordance with Section 8.01(j) of the Indenture and (y) March 15, 2021.
If applicable, the Notice of Final convertible Security Settlement Method shall also contain the Settlement Method Election Provisions.
|
|
Giving Notice:
|
As specified in Section 6(b) below.
|
|
Settlement Date:
|
For any Exercise Date, the settlement date for the cash (if any) and/or Shares (if any) to be delivered in respect of the Relevant Convertible Securities for the relevant Conversion Date under the terms of the Indenture;
provided
that the Settlement Date shall not be prior to the latest of (i) the date one Settlement Cycle following the final day of the relevant Cash Settlement Averaging Period, (ii) the Exchange Business Day immediately following the date on which Counterparty gives notice to Dealer of such Settlement Date prior to 12:00 P.M., New York City time, or (iii) the Exchange Business Day immediately following the date Counterparty provides the Notice of Delivery Obligation prior to 12:00 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 “Notice of Exercise” above, in respect of an Exercise Date, Dealer will deliver to Counterparty on the related Settlement Date (the “
Delivery Obligation
”):
|
Convertible Security Settlement Method:
|
For any Relevant Convertible Securities, if (i) Counterparty has notified Dealer in the related Notice of Exercise (or in the Notice of Final Convertible Security Settlement Method, as the case may be) 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 4.03(a)(i) of the Indenture with a Specified Dollar Amount of at least USD1,000 (a “
Cash Election
”) and (ii) such Notice of Exercise (or such Notice of Final Convertible Security Settlement Method, as the case may be) contains all of the Settlement Method Election Provisions (unless such Settlement Method Election Provisions are not required in the circumstances set forth in the parenthetical under “Settlement Method Election Provisions” below), the Convertible Security Settlement Method shall be the settlement method actually so elected by Counterparty in respect of such Relevant Convertible Securities; otherwise, the Convertible Security Settlement Method shall (x) assume Counterparty had made a Cash Election with respect to such Relevant Convertible Securities with a Specified Dollar Amount of USD1,000 per Relevant Convertible Security and (y) be calculated as if the relevant “Observation Period” pursuant to Section 4.03(a)(ii)(C) of the Indenture consisted of 100 “VWAP Trading Days” (as defined in the Indenture) commencing on (I) the second “Scheduled Trading Day” (as defined in the Indenture) after the Conversion Date for conversions with a related Conversion Date occurring prior to the Final Conversion Period or (II) the 102
nd
“Scheduled Trading Day” (as defined in the Indenture) prior to the Maturity Date for conversions with a related Conversion Date occurring during the Final Conversion Period (such “Observation Period”, subject to the provisions of this clause (y), the “
Cash Settlement Averaging Period
” for such Relevant Convertible Securities).
|
Settlement Method Election Provisions:
|
In order for the Convertible Security Settlement Method to be the settlement method actually elected by Counterparty under the Indenture in respect of the
|
|
applicable Relevant Convertible Securities in accordance with “Convertible Security Settlement Method” above, the related Notice of Exercise (or Notice of Final Convertible Security Settlement Method, as the case may be) must contain in writing the following representations, warranties and acknowledgments from Counterparty to Dealer as of such notice delivery date (except that such representations, warranties and acknowledgments will not be required in the case where the Relevant Convertible Securities will be settled by Counterparty by delivery of a combination of cash and Shares with a Specified Dollar Amount equal to USD1,000 where Counterparty has either (x) failed to elect a settlement method under the Indenture in respect of the applicable Relevant Convertible Securities so that Counterparty is deemed to have elected such settlement method by default pursuant to Section 4.03(a)(i) of the Indenture or (y) merely confirmed such deemed election of the default settlement method pursuant to Section 4.03(a)(i) of the Indenture):
|
|
(iii) Counterparty has the power 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
|
|
(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 constitutional documents, any order or judgment of any court or other agency of government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets; and
|
|
(v) any transaction that Dealer makes with respect to the Shares during the period beginning at the time that Counterparty delivers such notice and ending at the close of business on the final day of the Cash Settlement Averaging Period shall be made by Dealer at Dealer’s sole discretion for Dealer’s own account and Counterparty shall not have, and shall not attempt to exercise, any influence over how, when, whether or at what price Dealer effects such transactions, including, without limitation, the prices paid or received by Dealer per Share pursuant to such transactions, or whether such transactions are made on any securities exchange or privately.
|
|
Notice of Delivery Obligation:
|
No later than the Exchange Business Day immediately following the last day of the relevant Cash Settlement Averaging Period, Counterparty shall give Dealer notice of the final number of Shares and/or amount of cash comprising the settlement obligation under the Indenture in respect of the Relevant Convertible Securities;
provided
that, with respect to any Exercise Date occurring during the Final Conversion Period, Counterparty may provide Dealer, within the time period set forth above, with a single notice of the aggregate number of Shares and/or amount of cash comprising the settlement obligation under the Indenture in respect of the Relevant Convertible Securities 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 shall not limit Counterparty’s obligations with respect to a Notice of Exercise or Notice of 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, the product of (i) the Applicable Percentage and (ii)(A) the Total Convertible Share Obligation Value of such Relevant Convertible Securities for such Conversion Date
minus
(B) the aggregate principal amount of such Relevant
|
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 (except that such number of Shares shall be determined without taking into consideration any rounding pursuant to Section 4.03(b) of the Indenture)
multiplied by
(B) the Share Obligation Value Price
plus
(ii) an amount equal to (A) the fractional Shares, if any, that would have resulted but for the rounding under (i)(A) above
multiplied by
(B) the Share Obligation Value Price
plus
(iii) an amount of cash equal to the aggregate amount of cash that Counterparty is obligated to deliver to the holder(s) of Relevant Convertible Securities for such Conversion Date pursuant to the Indenture;
provided
that, the Total Convertible Share Obligation Value shall be determined excluding 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 pursuant to a Fundamental Change Adjustment or a Discretionary Adjustment 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.
|
|
Share Obligation Value Price:
|
The opening price as displayed under the heading “Op” on Bloomberg page “DY.N <Equity>“ (or any successor thereto) on the applicable Settlement Date.
|
|
Other Applicable Provisions:
|
To the extent Dealer is obligated to deliver Shares hereunder, the provisions of Sections 9.8, 9.9, 9.10 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.
|
|
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 Sections 4.04(a) through (e) of the Indenture that the Calculation Agent determines would result in an adjustment under the Indenture by reference to such Section thereof, the Calculation Agent shall 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, subject to “Discretionary Adjustments” below.
|
|
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 or its board of directors (including, without limitation, pursuant to Section 4.05(a) of the Indenture or pursuant to Section 4.07(a) of the Indenture 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 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 of the Transaction in a commercially reasonable manner.
|
|
Merger Events:
|
Notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means any “Merger Event” as defined in Section 4.07(a) of the Indenture.
|
|
Consequences of Merger Events:
|
Notwithstanding Section 12.2 of the Equity Definitions, upon the occurrence of a Merger Event that the Calculation Agent determines by reference to Section 4.07 of the Indenture would result in an adjustment under the Indenture, the Calculation Agent shall 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;
provided
that such adjustment shall be made without regard to any adjustment to the Conversion Rate pursuant to a Fundamental Change Adjustment or a Discretionary Adjustment; and
provided further
that the Calculation Agent may limit or alter any such adjustment referenced in this paragraph in a commercially reasonable manner so that the fair value of the Transaction to Dealer is not reduced as a result of such adjustment; and
provided further
that if, with respect to a Merger Event, (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 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 will not be a corporation organized under the laws of the United States, any state thereof or the District of Columbia and/or will not be the Issuer following such Merger Event, in either case, Dealer may elect (in its sole discretion) for Cancellation and Payment (Calculation Agent Determination) to apply.
|
|
Consequences:
|
Upon the occurrence of a Merger Event that causes the Shares to be converted into the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), Counterparty shall reasonably promptly (but in any event prior to the relevant merger date) notify the Calculation Agent of (i) the type and amount of consideration that a holder of Shares would have been entitled to in the case of reclassifications, consolidations, mergers, sales or transfers of assets or other transactions that cause Shares to be converted into the right to receive more than a single type of consideration, (ii) if holders of Shares affirmatively make such an election, the weighted average of the types and amounts of consideration to be received by the holders of Shares that affirmatively make such an election, and (iii) the details of the adjustment to be made under the Indenture in respect of such Merger Event.
|
|
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 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 such exchange or quotation system, such exchange or quotation system shall thereafter be deemed to be the Exchange.
|
|
Additional Termination Event(s):
|
Notwithstanding anything to the contrary in the Equity Definitions, if, as a result of an Extraordinary Event, any Transaction would be cancelled or terminated (whether in whole or in part) pursuant to Article 12 of the Equity Definitions, an Additional Termination Event (with such terminated Transaction(s) (or portions thereof) being the Affected Transaction(s) and Counterparty being the sole Affected Party) shall be deemed to occur, and, in lieu of Sections 12.7, 12.8 and 12.9 of the Equity Definitions, Section 6 of the Agreement shall apply to such Affected Transaction(s).
|
|
(a)
|
Change in Law:
|
Applicable;
provided
that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the phrase “the interpretation” in the third line thereof with the phrase “, or public announcement of, the formal or informal interpretation”, (ii) by adding the phrase “and/or Hedge Position” after the word “Shares” in clause (X) thereof and (iii) by immediately following the word “Transaction” in clause (X) thereof, adding the phrase “in the manner contemplated by the Hedging Party on the Trade Date”;
provided
,
further
that (i) any determination as to whether (A) the adoption of or any change in any applicable law or regulation (including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute) or (B) the promulgation of or any change in the interpretation by any court, tribunal or regulatory authority with competent jurisdiction of any applicable law or regulation (including any action taken by a taxing authority), in each case, constitutes a “Change in Law” shall be made without regard to Section 739 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 or any similar legal certainty provision in any legislation enacted, or rule or regulation promulgated, on or after the Trade Date, and (ii) Section 12.9(a)(ii) of the Equity Definitions is hereby amended by replacing the parenthetical beginning after the word “regulation” in the second line thereof the words “(including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute)”.
|
|
(b)
|
Failure to Deliver:
|
Applicable
|
|
(c)
|
Insolvency Filing:
|
Applicable
|
|
(d)
|
Hedging Disruption:
|
Applicable;
provided
that:
|
|
(i)
|
Section 12.9(a)(v) of the Equity Definitions is hereby modified by:
|
|
(a)
|
inserting the following words at the end of clause (A) thereof: “in the manner contemplated by the Hedging Party on the Trade Date”;
|
|
(b)
|
inserting the following two phrases at the end of such Section:
|
|
(ii)
|
Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line thereof, after the words “to terminate the Transaction”, the words “or a portion of the Transaction affected by such Hedging Disruption”.
|
|
(e)
|
Increased Cost of Hedging:
|
Applicable
|
|
Hedging Party:
|
Dealer
|
|
Determining Party:
|
Dealer
|
|
Non-Reliance:
|
Applicable
|
|
Regarding Hedging Activities:
|
Applicable
|
|
Additional Acknowledgments:
|
Applicable
|
|
3.
|
Calculation Agent
:
|
Dealer;
provided
that all calculations and determinations made by the Calculation Agent shall be made in good faith and in a commercially reasonable manner;
provided further
that, upon receipt of written request from Counterparty, the Calculation Agent shall promptly provide Counterparty with a written explanation describing in reasonable detail any calculation, adjustment or determination made by it (including any quotations, market data or information from internal or external sources used in making such calculation, adjustment or determination, as the case may be, but without disclosing Dealer’s proprietary models or other information that may be proprietary or subject to contractual, legal or regulatory obligations to not disclose such information), and shall use commercially reasonable efforts to provide such written explanation within five Exchange Business Days from the receipt of such request.
|
4.
|
Account Details
:
|
5.
|
Offices
:
|
|
The Office of Dealer for the Transaction is: Charlotte.
|
|
The Office of Counterparty for the Transaction is:
|
6.
|
Notices
: For purposes of this Confirmation:
|
(a)
|
Address for notices or communications to Counterparty:
|
To:
|
Dycom Industries, Inc.
|
11780 U.S. Highway 1, Suite 600
|
|
Palm Beach Gardens, FL 33408
|
|
Attn:
|
General Counsel
|
Telephone:
|
(561) 627-7171
|
Facsimile:
|
(561) 627-7709
|
|
(b)
|
Address for notices or communications to Dealer:
|
7.
|
Representations, Warranties and Agreements
:
|
Share Termination Alternative:
|
If applicable, means that Dealer shall deliver to Counterparty the Share Termination Delivery Property on the date on which the Payment Obligation would otherwise be due pursuant to the Transaction,
|
Property:
|
A number of Share Termination Delivery Units, as calculated by the Calculation Agent, equal to the Payment Obligation divided by the Share Termination Unit Price. The Calculation Agent shall adjust the Share Termination Delivery Property by replacing any fractional portion of the aggregate amount of a security therein with an amount of cash equal to the value of such fractional security based on the values used to calculate the Share Termination Unit Price.
|
Share Termination Unit Price:
|
The value of property contained in one Share Termination Delivery Unit on the date such Share Termination Delivery Units are to be delivered as Share Termination Delivery Property, as determined by the Calculation Agent in its discretion by commercially reasonable means and notified by the Calculation Agent to Dealer at the time of notification of the Payment Obligation.
|
Share Termination Delivery Unit:
|
In the case of a Termination Event, Event of Default, Delisting or Additional Disruption Event, one Share or, in the case of an Insolvency, Nationalization or Merger Event, one Share or a unit consisting of the number or amount of each type of property received by a holder of one Share (without consideration of any requirement to pay cash or other consideration in lieu of fractional amounts of any securities) in such Insolvency, Nationalization or Merger Event, as applicable. If such Insolvency, Nationalization or Merger Event involves a choice of consideration to be received by holders, such holder shall be deemed to have elected to receive the maximum possible amount of cash.
|
Failure to Deliver:
|
Applicable
|
Other Applicable Provisions:
|
If Share Termination Alternative is applicable, the provisions of Sections 9.8, 9.9, 9.10 and 9.11 of the Equity Definitions will be applicable as if “Physical Settlement” applied to the Transaction, except that all references to “Shares” shall be read as references to “Share Termination Delivery Units”;
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 as a result of the fact that Counterparty is the issuer of any Share Termination Delivery Units (or any part thereof).
|
Yours faithfully,
|
|||
WELLS FARGO BANK, NATIONAL ASSOCIATION | |||
|
By:
|
/s/ Thomas Yates | |
Name: | Thomas Yates | ||
Title: | Managing Director | ||
Agreed and Accepted By: | |||
DYCOM INDUSTRIES , INC. | |||
By: | /s/ H. Andrew DeFerrari | ||
Name: | H. Andrew DeFerrari | ||
Title: | Senior Vice President & Chief Financial Officer | ||
To:
|
Dycom Industries, Inc.
11780 U.S. Highway 1, Suite 600
Palm Beach Gardens, Florida 33408
|
A/C:
|
051130730
|
From:
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Goldman, Sachs & Co.
|
Re:
|
Additional Convertible Bond Hedge Transaction
|
Ref. No:
|
SDB2502801715
|
Date:
|
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|
Trade Date:
|
September 10, 2015
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|
Effective Date:
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The closing date of the issuance of the Convertible Securities issued pursuant to the option to purchase additional Convertible Securities exercised on the date hereof.
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Option Style:
|
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:
|
The Common Stock of Counterparty, par value USD
0.33 1/3
(Ticker Symbol: “DY”).
|
|
Applicable Percentage:
|
50.00%
|
|
Number of Options:
|
The number of Optional Securities in denominations of USD1,000 principal amount purchased pursuant to the exercise by Goldman, Sachs & Co. and Merrill Lynch, Pierce, Fenner & Smith Incorporated as representatives (the “
Representatives
”) of the Initial Purchasers (as defined in the Purchase Agreement), of their option to purchase additional Convertible Securities pursuant to Section 2 of the Purchase
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Agreement (as defined below). For the avoidance of doubt, the Number of Options outstanding shall be reduced by each exercise of Options hereunder.
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Option Entitlement:
|
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 a Fundamental Change Adjustment or a Discretionary Adjustment).
|
Fundamental Change Adjustment:
|
Any adjustment to the Conversion Rate pursuant to Section 4.06 of the Indenture.
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Discretionary Adjustment:
|
Any adjustment to the Conversion Rate pursuant to Section 4.05(b) of the Indenture.
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Strike Price:
|
As of any date, an amount in USD equal to USD1,000
divided by
the Option Entitlement as of such date. The Strike Price shall be rounded by the Calculation Agent in accordance with the applicable provisions of the Indenture.
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Number of Shares:
|
As of any date, a number of Shares equal to the product of (i) the Applicable Percentage, (ii) the Number of Options and (iii) the Option Entitlement.
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Premium:
|
USD7,761,000.00.
|
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Premium Payment Date:
|
The Effective Date
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Exchange:
|
The New York Stock Exchange
|
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Related Exchange:
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All Exchanges
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Exercise Dates:
|
Each Conversion Date.
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Conversion Date:
|
Each “Conversion Date” (as defined in the Indenture) occurring during the Exercise Period for Convertible Securities each in denominations of USD1,000 principal amount that are not “Relevant Convertible Securities” under (and as defined in) the confirmation between the parties hereto regarding the Base Convertible Bond Hedge Transaction dated September 9, 2015 (Transaction Ref. No. SDB2502800694) (the “
Base Convertible Bond Hedge 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 Convertible Bond Hedge Transaction Confirmation, Convertible Securities that are converted pursuant to the Indenture shall be allocated first to the Base Convertible Bond Hedge Transaction Confirmation until all Options thereunder are exercised or terminated.
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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:
|
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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Automatic Exercise on
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Conversion Dates:
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Applicable; and means that 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, subject to “Notice of Exercise” below.
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Notice Deadline:
|
In respect of any exercise of Options hereunder on any Conversion Date, 12:00 P.M., New York City time, on (i) in the case the applicable Relevant Convertible Securities will be settled by Counterparty by delivery of Shares only (together with cash in lieu of any fractional Share), the Scheduled Trading Day immediately following the relevant Conversion Date, or (ii) otherwise, the Scheduled Trading Day immediately preceding the first Scheduled Trading Day of the relevant Cash Settlement Averaging Period;
provided
that in the case of any exercise of Options hereunder in connection with the conversion of any Relevant Convertible Securities for any Conversion Date occurring during the period from and including the 55th “Scheduled Trading Day” (as defined in the Indenture) prior to the Maturity Date (or if Counterparty has elected to settle all conversions of Convertible Securities solely in Shares (together with cash in lieu of any fractional Share) or through combination settlement with the “Specified Dollar Amount” (as defined in the Indenture) of less than USD1,000 and such election is effective on or prior to the 105
th
“Scheduled Trading Day” (as defined in the Indenture) prior to the Maturity Date, then from and including such date), to and including the Expiration Date (such period, the “
Final Conversion Period
”), the Notice Deadline shall be 12:00 P.M., New York City time, on the “Scheduled Trading Day” (as defined in the Indenture) immediately preceding the Maturity Date.
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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 and such obligation in respect of such exercise shall be permanently extinguished unless Counterparty notifies Dealer in writing prior to 12:00 P.M., New York City time, on the Notice Deadline in respect of such exercise, of (i) the number of Relevant Convertible Securities being converted on the related Conversion Date (specifying, if applicable, whether all or any portion of such Convertible Securities are Convertible
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Securities as to which additional Shares would be added to the Conversion Rate (as defined in the Indenture) pursuant to Section 4.06 of the Indenture (the “
Make-Whole Convertible Securities
”)), (ii) the scheduled settlement date under the Indenture for the Relevant Convertible Securities for such Conversion Date, (iii) whether such Relevant Convertible Securities will be settled by Counterparty by delivery of cash, Shares or a combination of cash and Shares and, if such a combination, the “Specified Dollar Amount” (as defined in the Indenture) and (iv) the first “Scheduled Trading Day” (as defined in the Indenture) of the relevant “Observation Period” (as defined in the Indenture), if any;
provided
that in the case of any exercise of Options in connection with the conversion of any Relevant Convertible Securities for any Conversion Date occurring during the Final Conversion Period, the contents of such notice shall be as set forth in clauses (i) and (ii) above;
provided, further,
that any “Notice of Exercise” delivered to Dealer pursuant to the Base Convertible Bond Hedge 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.
Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Securities Exchange Act of 1934, as amended (the “
Exchange Act
”) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Securities.
For the avoidance of doubt, if Counterparty fails to give such notice when due
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
.
If applicable, the Notice of Exercise shall also contain the Settlement Method Election Provisions. Notwithstanding the foregoing, such notice (and the related exercise of Options) shall be effective with respect to Options relating to Convertible Securities with a Conversion Date occurring prior to the first day of the Final Conversion Period if given after the Notice Deadline, but prior to 4:00 PM New York City time, on the fifth Exchange Business Day following the Notice Deadline, in which event Dealer’s Delivery Obligation shall not be extinguished but may instead be adjusted by the Calculation Agent in a commercially reasonable manner to reflect the additional costs (including, but not limited to, hedging mismatches and market losses) and expenses incurred by Dealer in connection with its hedging activities (including the unwinding of any hedge position) as a result of Dealer not having received
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Settlement Method:
|
Counterparty shall notify Dealer in writing of the final settlement method (and, if applicable, the final Specified Dollar Amount) elected (or deemed to be elected) with respect to the Convertible Securities before 4:00 P.M. (New York City time) on the earlier to occur of (x) the date on which it makes the irrevocable election of a settlement method in accordance with Section 8.01(j) of the Indenture and (y) March 15, 2021.
If applicable, the Notice of Final convertible Security Settlement Method shall also contain the Settlement Method Election Provisions.
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Giving Notice:
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As specified in Section 6(b) below.
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Settlement Date:
|
For any Exercise Date, the settlement date for the cash (if any) and/or Shares (if any) to be delivered in respect of the Relevant Convertible Securities for the relevant Conversion Date under the terms of the Indenture;
provided
that the Settlement Date shall not be prior to the latest of (i) the date one Settlement Cycle following the final day of the relevant Cash
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Settlement Averaging Period, (ii) the Exchange Business Day immediately following the date on which Counterparty gives notice to Dealer of such Settlement Date prior to 12:00 P.M., New York City time, or (iii) the Exchange Business Day immediately following the date Counterparty provides the Notice of Delivery Obligation prior to 12:00 P.M., New York City time.
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Delivery Obligation:
|
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 to Counterparty on the related Settlement Date (the “
Delivery Obligation
”):
|
Convertible Security Settlement Method:
|
For any Relevant Convertible Securities, if (i) Counterparty has notified Dealer in the related Notice of Exercise (or in the Notice of Final Convertible Security Settlement Method, as the case may be) 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 4.03(a)(i) of the Indenture with a Specified Dollar Amount of at least USD1,000 (a “
Cash Election
”) and (ii) such Notice of Exercise (or such Notice of Final Convertible Security Settlement Method, as the case may be) contains all of the Settlement Method Election Provisions (unless such Settlement Method Election Provisions are not required in the circumstances set forth in the parenthetical under “Settlement Method Election Provisions” below), the Convertible Security Settlement Method shall be the settlement method
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actually so elected by Counterparty in respect of such Relevant Convertible Securities; otherwise, the Convertible Security Settlement Method shall (x) assume Counterparty had made a Cash Election with respect to such Relevant Convertible Securities with a Specified Dollar Amount of USD1,000 per Relevant Convertible Security and (y) be calculated as if the relevant “Observation Period” pursuant to Section 4.03(a)(ii)(C) of the Indenture consisted of 100 “VWAP Trading Days” (as defined in the Indenture) commencing on (I) the second “Scheduled Trading Day” (as defined in the Indenture) after the Conversion Date for conversions with a related Conversion Date occurring prior to the Final Conversion Period or (II) the 102
nd
“Scheduled Trading Day” (as defined in the Indenture) prior to the Maturity Date for conversions with a related Conversion Date occurring during the Final Conversion Period (such “Observation Period”, subject to the provisions of this clause (y), the “
Cash Settlement Averaging Period
” for such Relevant Convertible Securities).
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Settlement Method Election Provisions:
|
In order for the Convertible Security Settlement Method to be the settlement method actually elected by Counterparty under the Indenture in respect of the applicable Relevant Convertible Securities in accordance with “Convertible Security Settlement Method” above, the related Notice of Exercise (or Notice of Final Convertible Security Settlement Method, as the case may be) must contain in writing the following representations, warranties and acknowledgments from Counterparty to Dealer as of such notice delivery date (except that such representations, warranties and acknowledgments will not be required in the case where the Relevant Convertible Securities will be settled by Counterparty by delivery of a combination of cash and Shares with a Specified Dollar Amount equal to USD1,000 where Counterparty has either (x) failed to elect a settlement method under the Indenture in respect of the applicable Relevant Convertible Securities so that Counterparty is deemed to have elected such settlement method by default pursuant to Section 4.03(a)(i) of the Indenture or (y) merely confirmed such deemed election of the default settlement method pursuant to Section 4.03(a)(i) of the Indenture):
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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; Counterparty is not electing the settlement method under the Indenture for the Relevant Convertible Securities or the Convertible Security Settlement Method to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for Shares) or otherwise in violation of the Exchange Act; and Counterparty has not entered into or altered any hedging transaction relating to the Shares corresponding to or offsetting the Transaction;
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(iii) Counterparty has the power 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 all necessary action to authorize such election, execution, delivery and performance;
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(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 constitutional documents, any order or judgment of any court or other agency of government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets; and
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(v) any transaction that Dealer makes with respect to the Shares during the period beginning at the time that Counterparty delivers such notice and ending at the close of business on the final day of the Cash Settlement Averaging Period shall be made by Dealer at Dealer’s sole discretion for Dealer’s own account and Counterparty shall not have, and shall not attempt to exercise, any influence over how, when, whether or at what price Dealer effects such transactions, including, without limitation, the prices paid or received by Dealer per Share pursuant to such transactions, or whether such transactions are made on any securities exchange or privately.
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Notice of Delivery Obligation:
|
No later than the Exchange Business Day immediately following the last day of the relevant
|
|
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Cash Settlement Averaging Period, Counterparty shall give Dealer notice of the final number of Shares and/or amount of cash comprising the settlement obligation under the Indenture in respect of the Relevant Convertible Securities;
provided
that, with respect to any Exercise Date occurring during the Final Conversion Period, Counterparty may provide Dealer, within the time period set forth above, with a single notice of the aggregate number of Shares and/or amount of cash comprising the settlement obligation under the Indenture in respect of the Relevant Convertible Securities 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 shall not limit Counterparty’s obligations with respect to a Notice of Exercise or Notice of Convertible Security Settlement Method, as the case may be, as set forth above, in any way).
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Net Convertible Share Obligation Value:
|
With respect to Relevant Convertible Securities as to a Conversion Date, the product of (i) the Applicable Percentage and (ii)(A) the Total Convertible Share Obligation Value of such Relevant Convertible Securities for such Conversion Date
minus
(B) 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 (except that such number of Shares shall be determined without taking into consideration any rounding pursuant to Section 4.03(b) of the Indenture)
multiplied by
(B) the Share Obligation Value Price
plus
(ii) an amount equal to (A) the fractional Shares, if any, that would have resulted but for the rounding under (i)(A) above
multiplied by
(B) the Share Obligation Value Price
plus
(iii) an amount of cash equal to the aggregate amount of cash that Counterparty is obligated to deliver to the holder(s) of Relevant Convertible Securities for such Conversion Date pursuant to the Indenture;
provided
that, the Total Convertible Share Obligation Value shall be determined excluding 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 pursuant to a Fundamental Change Adjustment or a Discretionary Adjustment 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.
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Share Obligation Value Price:
|
The opening price as displayed under the heading “Op” on Bloomberg page “DY.N <Equity>“ (or any successor thereto) on the applicable Settlement Date.
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Other Applicable Provisions:
|
To the extent Dealer is obligated to deliver Shares hereunder, the provisions of Sections 9.8, 9.9, 9.10 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.
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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.
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Method of Adjustment:
|
Notwithstanding Section 11.2 of the Equity Definitions, upon the occurrence of any event or condition set forth in Sections 4.04(a) through (e) of the Indenture that the Calculation Agent determines would result in an adjustment under the Indenture by reference to such Section thereof, the Calculation Agent shall 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, subject to “Discretionary Adjustments” below.
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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 or its board of directors (including, without limitation, pursuant to Section 4.05(a) of the Indenture or pursuant to Section 4.07(a) of the Indenture any supplemental indenture entered into thereunder or in connection with any
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Merger Events:
|
Notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means any “Merger Event” as defined in Section 4.07(a) of the Indenture.
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Consequences of Merger Events:
|
Notwithstanding Section 12.2 of the Equity Definitions, upon the occurrence of a Merger Event that the Calculation Agent determines by reference to Section 4.07 of the Indenture would result in an adjustment under the Indenture, the Calculation Agent shall 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;
provided
that such adjustment shall be made without regard to any adjustment to the Conversion Rate pursuant to a Fundamental Change Adjustment or a Discretionary Adjustment; and
provided further
that the Calculation
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Consequences:
|
Upon the occurrence of a Merger Event that causes the Shares to be converted into the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), Counterparty shall reasonably promptly (but in any event prior to the relevant merger date) notify the Calculation Agent of (i) the type and amount of consideration that a holder of Shares would have
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been entitled to in the case of reclassifications, consolidations, mergers, sales or transfers of assets or other transactions that cause Shares to be converted into the right to receive more than a single type of consideration, (ii) if holders of Shares affirmatively make such an election, the weighted average of the types and amounts of consideration to be received by the holders of Shares that affirmatively make such an election, and (iii) the details of the adjustment to be made under the Indenture in respect of such Merger Event.
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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 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 such exchange or quotation system, such exchange or quotation system shall thereafter be deemed to be the Exchange.
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Additional Termination Event(s):
|
Notwithstanding anything to the contrary in the Equity Definitions, if, as a result of an Extraordinary Event, any Transaction would be cancelled or terminated (whether in whole or in part) pursuant to Article 12 of the Equity Definitions, an Additional Termination Event (with such terminated Transaction(s) (or portions thereof) being the Affected Transaction(s) and Counterparty being the sole Affected Party) shall be deemed to occur, and, in lieu of Sections 12.7, 12.8 and 12.9 of the Equity Definitions, Section 6 of the Agreement shall apply to such Affected Transaction(s).
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(a)
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Change in Law:
|
Applicable;
provided
that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the phrase “the interpretation” in the third line thereof with the phrase “, or public announcement of, the formal or informal interpretation”, (ii) by adding the phrase “and/or Hedge Position” after the word “Shares” in clause (X) thereof and (iii) by immediately following the word “Transaction” in clause (X) thereof, adding the phrase “in the manner contemplated by the Hedging Party on the Trade Date”;
provided
,
further
that (i) any determination as to whether (A) the adoption of or any change in any applicable law or regulation (including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute) or (B) the promulgation of or any change in
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the interpretation by any court, tribunal or regulatory authority with competent jurisdiction of any applicable law or regulation (including any action taken by a taxing authority), in each case, constitutes a “Change in Law” shall be made without regard to Section 739 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 or any similar legal certainty provision in any legislation enacted, or rule or regulation promulgated, on or after the Trade Date, and (ii) Section 12.9(a)(ii) of the Equity Definitions is hereby amended by replacing the parenthetical beginning after the word “regulation” in the second line thereof the words “(including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute)”.
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(b)
|
Failure to Deliver:
|
Applicable
|
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(c)
|
Insolvency Filing:
|
Applicable
|
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(d)
|
Hedging Disruption:
|
Applicable;
provided
that:
|
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(i)
|
Section 12.9(a)(v) of the Equity Definitions is hereby modified by:
|
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(a)
|
inserting the following words at the end of clause (A) thereof: “in the manner contemplated by the Hedging Party on the Trade Date”;
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(b)
|
inserting the following two phrases at the end of such Section:
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(ii)
|
Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line thereof, after the words “to terminate the Transaction”, the words “or a portion of the Transaction affected by such Hedging Disruption”.
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(e)
|
Increased Cost of Hedging:
|
Applicable
|
|
Hedging Party:
|
Dealer
|
|
Determining Party:
|
Dealer
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|
Non-Reliance:
|
Applicable
|
|
Regarding Hedging Activities:
|
Applicable
|
|
Additional Acknowledgments:
|
Applicable
|
|
3.
|
Calculation Agent
:
|
Dealer;
provided
that all calculations and determinations made by the Calculation Agent shall be made in good faith and in a commercially reasonable manner;
provided further
that, upon receipt of written request from Counterparty, the Calculation Agent shall promptly provide Counterparty with a written explanation describing in reasonable detail any calculation, adjustment or determination made by it (including any quotations, market data or information from internal or external sources used in making such calculation, adjustment or determination, as the case may be, but without disclosing Dealer’s proprietary models or other information that may be proprietary or subject to contractual, legal or regulatory obligations to not disclose such information), and shall use commercially reasonable efforts to provide such written explanation within five Exchange Business Days from the receipt of such request.
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4.
|
Account Details
:
|
5.
|
Offices
:
|
6.
|
Notices
: For purposes of this Confirmation:
|
(a)
|
Address for notices or communications to Counterparty:
|
To:
|
Dycom Industries, Inc.
|
11780 U.S. Highway 1, Suite 600
|
|
Palm Beach Gardens, Florida 33408
|
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Attn:
|
General Counsel
|
Telephone:
|
(561) 627-7171
|
Facsimile:
|
(561) 627-7709
|
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(b)
|
Address for notices or communications to Dealer:
|
To:
|
Goldman, Sachs & Co.
|
200 West Street
|
|
New York, NY 10282-2198
|
|
Attn:
|
Bennett Schachter
|
Structured Equity Group
|
|
Telephone:
|
212-902-2568
|
Facsimile:
|
212-902-3000
|
Email:
|
bennett.schachter@gs.com
|
Attn:
|
Daniel Josephs
|
Structured Equity Group
|
|
Telephone:
|
212-902-8193
|
Facsimile:
|
917-977-3943
|
Email:
|
daniel.josephs@gs.com
|
7.
|
Representations, Warranties and Agreements
:
|
Share Termination Alternative:
|
If applicable, means that Dealer shall deliver to Counterparty the Share Termination Delivery Property on the date on which the Payment Obligation would otherwise be due pursuant to the Transaction, including, without limitation, pursuant to “Consequences of Merger Events” above or Section 12.2, 12.6, 12.7 or 12.9 of the Equity Definitions or Section 6(d)(ii) of the Agreement, as applicable, or such later date or dates as the Calculation Agent may reasonably determine (the “
Share Termination Payment Date
”), in satisfaction of the Payment Obligation.
|
Property:
|
A number of Share Termination Delivery Units, as calculated by the Calculation Agent, equal to the Payment Obligation divided by the Share Termination Unit Price. The Calculation Agent shall adjust the Share Termination Delivery Property by replacing any fractional
|
Share Termination Unit Price:
|
The value of property contained in one Share Termination Delivery Unit on the date such Share Termination Delivery Units are to be delivered as Share Termination Delivery Property, as determined by the Calculation Agent in its discretion by commercially reasonable means and notified by the Calculation Agent to Dealer at the time of notification of the Payment Obligation.
|
Share Termination Delivery Unit:
|
In the case of a Termination Event, Event of Default, Delisting or Additional Disruption Event, one Share or, in the case of an Insolvency, Nationalization or Merger Event, one Share or a unit consisting of the number or amount of each type of property received by a holder of one Share (without consideration of any requirement to pay cash or other consideration in lieu of fractional amounts of any securities) in such Insolvency, Nationalization or Merger Event, as applicable. If such Insolvency, Nationalization or Merger Event involves a choice of consideration to be received by holders, such holder shall be deemed to have elected to receive the maximum possible amount of cash.
|
Failure to Deliver:
|
Applicable
|
Other Applicable Provisions:
|
If Share Termination Alternative is applicable, the provisions of Sections 9.8, 9.9, 9.10 and 9.11 of the Equity Definitions will be applicable as if “Physical Settlement” applied to the Transaction, except that all references to “Shares” shall be read as references to “Share Termination Delivery Units”;
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 as a result of the fact that Counterparty is the issuer of any Share Termination Delivery Units (or any part thereof).
|
Yours faithfully, | ||||
GOLDMAN, SACHS & CO. | ||||
By: | /s/ Eugene Parloff | |||
Name: | Eugene Parloff | |||
Title: | Vice President | |||
Agreed and Accepted By: | |||
DYCOM INDUSTRIES , INC. | |||
By: | /s/ H. Andrew DeFerrari | ||
Name: | H. Andrew DeFerrari | ||
Title: | Senior Vice President & Chief Financial Officer | ||
To:
|
Dycom Industries, Inc.
|
|
11780 U.S. Highway 1, Suite 600
|
|
Palm Beach Gardens, Florida 33408
|
From:
|
Bank of America, N.A.
|
Re:
|
Additional Convertible Bond Hedge Transaction
|
Date:
|
September 10, 2015
|
|
Trade Date:
|
September 10, 2015
|
|
Effective Date:
|
The closing date of the issuance of the Convertible Securities issued pursuant to the option to purchase additional Convertible Securities exercised on the date hereof.
|
|
Option Style:
|
Modified American, as described under “Procedures for Exercise” below.
|
|
Option Type:
|
Call
|
|
Seller:
|
Dealer
|
|
Buyer:
|
Counterparty
|
|
Shares:
|
The Common Stock of Counterparty, par value USD
0.33 1/3
(Ticker Symbol: “DY”).
|
|
Applicable Percentage:
|
30.00%
|
|
Number of Options:
|
The number of Optional Securities in denominations of USD1,000 principal amount purchased pursuant to the exercise by Goldman, Sachs & Co. and Merrill Lynch, Pierce, Fenner & Smith Incorporated as representatives (the “
Representatives
”) of the Initial Purchasers (as defined in the Purchase Agreement),
|
|
Option Entitlement:
|
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 a Fundamental Change Adjustment or a Discretionary Adjustment).
|
Fundamental Change Adjustment:
|
Any adjustment to the Conversion Rate pursuant to Section 4.06 of the Indenture.
|
|
Discretionary Adjustment:
|
Any adjustment to the Conversion Rate pursuant to Section 4.05(b) of the Indenture.
|
|
Strike Price:
|
As of any date, an amount in USD equal to USD1,000
divided by
the Option Entitlement as of such date. The Strike Price shall be rounded by the Calculation Agent in accordance with the applicable provisions of the Indenture.
|
|
Number of Shares:
|
As of any date, a number of Shares equal to the product of (i) the Applicable Percentage, (ii) the Number of Options and (iii) the Option Entitlement.
|
|
Premium:
|
USD4,656,600.00.
|
|
Premium Payment Date:
|
The Effective Date
|
|
Exchange:
|
The New York Stock Exchange
|
|
Related Exchange:
|
All Exchanges
|
|
Exercise Dates:
|
Each Conversion Date.
|
|
Conversion Date:
|
Each “Conversion Date” (as defined in the Indenture) occurring during the Exercise Period for Convertible Securities each in denominations of USD1,000 principal amount that are not “Relevant Convertible Securities” under (and as defined in) the confirmation between the parties hereto regarding the Base Convertible Bond Hedge Transaction dated September 9, 2015 (the “
Base Convertible Bond Hedge 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 Convertible Bond Hedge Transaction Confirmation, Convertible Securities that are converted pursuant to the Indenture shall be allocated first to the Base Convertible Bond Hedge Transaction Confirmation until all Options thereunder are exercised or terminated.
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|
Exercise Period:
|
The period from and excluding the Effective Date to
|
|
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).
|
|
Conversion Dates:
|
Applicable; and means that 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, subject to “Notice of Exercise” below.
|
|
Notice Deadline:
|
In respect of any exercise of Options hereunder on any Conversion Date, 12:00 P.M., New York City time, on (i) in the case the applicable Relevant Convertible Securities will be settled by Counterparty by delivery of Shares only (together with cash in lieu of any fractional Share), the Scheduled Trading Day immediately following the relevant Conversion Date, or (ii) otherwise, the Scheduled Trading Day immediately preceding the first Scheduled Trading Day of the relevant Cash Settlement Averaging Period;
provided
that in the case of any exercise of Options hereunder in connection with the conversion of any Relevant Convertible Securities for any Conversion Date occurring during the period from and including the 55th “Scheduled Trading Day” (as defined in the Indenture) prior to the Maturity Date (or if Counterparty has elected to settle all conversions of Convertible Securities solely in Shares (together with cash in lieu of any fractional Share) or through combination settlement with the “Specified Dollar Amount” (as defined in the Indenture) of less than USD1,000 and such election is effective on or prior to the 105
th
“Scheduled Trading Day” (as defined in the Indenture) prior to the Maturity Date, then from and including such date), to and including the Expiration Date (such period, the “
Final Conversion Period
”), the Notice Deadline shall be 12:00 P.M., New York City time, on the “Scheduled Trading Day” (as defined in the Indenture) immediately preceding the Maturity Date.
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|
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 and such obligation in respect of such exercise shall be permanently extinguished unless Counterparty notifies Dealer in writing prior to 12:00 P.M., New York City time, on the Notice Deadline in respect of such exercise, of (i) the number of Relevant Convertible Securities being converted on the related Conversion Date
|
|
(specifying, if applicable, whether all or any portion of such Convertible Securities are Convertible Securities as to which additional Shares would be added to the Conversion Rate (as defined in the Indenture) pursuant to Section 4.06 of the Indenture (the “
Make-Whole Convertible Securities
”)), (ii) the scheduled settlement date under the Indenture for the Relevant Convertible Securities for such Conversion Date, (iii) whether such Relevant Convertible Securities will be settled by Counterparty by delivery of cash, Shares or a combination of cash and Shares and, if such a combination, the “Specified Dollar Amount” (as defined in the Indenture) and (iv) the first “Scheduled Trading Day” (as defined in the Indenture) of the relevant “Observation Period” (as defined in the Indenture), if any;
provided
that in the case of any exercise of Options in connection with the conversion of any Relevant Convertible Securities for any Conversion Date occurring during the Final Conversion Period, the contents of such notice shall be as set forth in clauses (i) and (ii) above;
provided, further,
that any “Notice of Exercise” delivered to Dealer pursuant to the Base Convertible Bond Hedge 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. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Securities Exchange Act of 1934, as amended (the “
Exchange Act
”) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Securities.
For the avoidance of doubt, if Counterparty fails to give such notice when due
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
.
If applicable, the Notice of Exercise shall also contain the Settlement Method Election Provisions. Notwithstanding the foregoing, such notice (and the related exercise of Options) shall be effective with respect to Options relating to Convertible Securities with a Conversion Date occurring prior to the first day of the Final Conversion Period if given after the Notice Deadline, but prior to 4:00 PM New York City time, on the fifth Exchange Business Day following the Notice Deadline, in which event Dealer’s Delivery Obligation shall not be extinguished but may instead be adjusted by the Calculation Agent in a commercially reasonable manner to reflect the additional costs (including, but not limited to, hedging mismatches and market losses) and expenses incurred by Dealer in connection with its hedging
|
|
Settlement Method:
|
Counterparty shall notify Dealer in writing of the final settlement method (and, if applicable, the final Specified Dollar Amount) elected (or deemed to be elected) with respect to the Convertible Securities before 4:00 P.M. (New York City time) on the earlier to occur of (x) the date on which it makes the irrevocable election of a settlement method in accordance with Section 8.01(j) of the Indenture and (y) March 15, 2021.
If applicable, the Notice of Final convertible Security Settlement Method shall also contain the Settlement Method Election Provisions.
|
|
Giving Notice:
|
As specified in Section 6(b) below.
|
|
Settlement Date:
|
For any Exercise Date, the settlement date for the cash (if any) and/or Shares (if any) to be delivered in respect of the Relevant Convertible Securities for the relevant Conversion Date under the terms of the Indenture;
provided
that the Settlement Date shall not
|
|
Delivery Obligation:
|
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 to Counterparty on the related Settlement Date (the “
Delivery Obligation
”):
|
Convertible Security Settlement Method:
|
For any Relevant Convertible Securities, if (i) Counterparty has notified Dealer in the related Notice of Exercise (or in the Notice of Final Convertible Security Settlement Method, as the case may be) 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 4.03(a)(i) of the Indenture with a Specified Dollar Amount of at least USD1,000 (a “
Cash Election
”) and (ii) such Notice of Exercise (or such Notice of Final Convertible Security Settlement Method, as the case may be) contains all of the Settlement Method Election Provisions (unless such Settlement Method Election Provisions are not required in the circumstances set forth in the parenthetical under “Settlement Method Election
|
Provisions” below), the Convertible Security Settlement Method shall be the settlement method actually so elected by Counterparty in respect of such Relevant Convertible Securities; otherwise, the Convertible Security Settlement Method shall (x) assume Counterparty had made a Cash Election with respect to such Relevant Convertible Securities with a Specified Dollar Amount of USD1,000 per Relevant Convertible Security and (y) be calculated as if the relevant “Observation Period” pursuant to Section 4.03(a)(ii)(C) of the Indenture consisted of 100 “VWAP Trading Days” (as defined in the Indenture) commencing on (I) the second “Scheduled Trading Day” (as defined in the Indenture) after the Conversion Date for conversions with a related Conversion Date occurring prior to the Final Conversion Period or (II) the 102
nd
“Scheduled Trading Day” (as defined in the Indenture) prior to the Maturity Date for conversions with a related Conversion Date occurring during the Final Conversion Period (such “Observation Period”, subject to the provisions of this clause (y), the “
Cash Settlement Averaging Period
” for such Relevant Convertible Securities).
|
Settlement Method Election Provisions:
|
In order for the Convertible Security Settlement Method to be the settlement method actually elected by Counterparty under the Indenture in respect of the applicable Relevant Convertible Securities in accordance with “Convertible Security Settlement Method” above, the related Notice of Exercise (or Notice of Final Convertible Security Settlement Method, as the case may be) must contain in writing the following representations, warranties and acknowledgments from Counterparty to Dealer as of such notice delivery date (except that such representations, warranties and acknowledgments will not be required in the case where the Relevant Convertible Securities will be settled by Counterparty by delivery of a combination of cash and Shares with a Specified Dollar Amount equal to USD1,000 where Counterparty has either (x) failed to elect a settlement method under the Indenture in respect of the applicable Relevant Convertible Securities so that Counterparty is deemed to have elected such settlement method by default pursuant to Section 4.03(a)(i) of the Indenture or (y) merely confirmed such deemed election of the default settlement method pursuant to Section 4.03(a)(i) of the Indenture):
|
|
(i) none of Counterparty and its officers or directors, or any person that controls, potentially controls, or otherwise exercises influence over, Counterparty’s decision to elect the Convertible Security Settlement Method is making such election “on the basis of” (within the meaning of
|
|
(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; Counterparty is not electing the settlement method under the Indenture for the Relevant Convertible Securities or the Convertible Security Settlement Method to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for Shares) or otherwise in violation of the Exchange Act; and Counterparty has not entered into or altered any hedging transaction relating to the Shares corresponding to or offsetting the Transaction;
|
|
(iii) Counterparty has the power 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 all necessary action to authorize such election, execution, delivery and performance;
|
|
(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 constitutional documents, any order or judgment of any court or other agency of government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets; and
|
|
(v) any transaction that Dealer makes with respect to the Shares during the period beginning at the time that Counterparty delivers such notice and ending at the close of business on the final day of the Cash Settlement Averaging Period shall be made by Dealer at Dealer’s sole discretion for Dealer’s own account and Counterparty shall not have, and shall not attempt to exercise, any influence over how, when, whether or at what price Dealer effects such transactions, including, without limitation, the prices paid or received by Dealer per Share pursuant to such transactions, or whether such transactions are made on any securities exchange or privately.
|
|
Notice of Delivery Obligation:
|
No later than the Exchange Business Day
|
|
immediately following the last day of the relevant Cash Settlement Averaging Period, Counterparty shall give Dealer notice of the final number of Shares and/or amount of cash comprising the settlement obligation under the Indenture in respect of the Relevant Convertible Securities;
provided
that, with respect to any Exercise Date occurring during the Final Conversion Period, Counterparty may provide Dealer, within the time period set forth above, with a single notice of the aggregate number of Shares and/or amount of cash comprising the settlement obligation under the Indenture in respect of the Relevant Convertible Securities 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 shall not limit Counterparty’s obligations with respect to a Notice of Exercise or Notice of 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, the product of (i) the Applicable Percentage and (ii)(A) the Total Convertible Share Obligation Value of such Relevant Convertible Securities for such Conversion Date
minus
(B) 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 (except that such number of Shares shall be determined without taking into consideration any rounding pursuant to Section 4.03(b) of the Indenture)
multiplied by
(B) the Share Obligation Value Price
plus
(ii) an amount equal to (A) the fractional Shares, if any, that would have resulted but for the rounding under (i)(A) above
multiplied by
(B) the Share Obligation Value Price
plus
(iii) an amount of cash equal to the aggregate amount of cash that Counterparty is obligated to deliver to the holder(s) of Relevant Convertible Securities for such Conversion Date pursuant to the Indenture;
provided
that, the Total Convertible Share Obligation Value shall be determined excluding 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 pursuant to a Fundamental Change Adjustment or a Discretionary Adjustment and any interest payment that Counterparty is (or would have been) obligated to deliver to holder(s) of the Relevant
|
|
Share Obligation Value Price:
|
The opening price as displayed under the heading “Op” on Bloomberg page “DY.N <Equity>“ (or any successor thereto) on the applicable Settlement Date.
|
|
Other Applicable Provisions:
|
To the extent Dealer is obligated to deliver Shares hereunder, the provisions of Sections 9.8, 9.9, 9.10 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.
|
|
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 Sections 4.04(a) through (e) of the Indenture that the Calculation Agent determines would result in an adjustment under the Indenture by reference to such Section thereof, the Calculation Agent shall 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, subject to “Discretionary Adjustments” below.
|
|
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 or its board of directors (including, without limitation, pursuant to Section 4.05(a) of the Indenture or pursuant to Section 4.07(a) of the Indenture any supplemental indenture entered into
|
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Merger Events:
|
Notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means any “Merger Event” as defined in Section 4.07(a) of the Indenture.
|
|
Consequences of Merger Events:
|
Notwithstanding Section 12.2 of the Equity Definitions, upon the occurrence of a Merger Event that the Calculation Agent determines by reference to Section 4.07 of the Indenture would result in an adjustment under the Indenture, the Calculation Agent shall 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;
provided
that such adjustment shall be made without regard to any adjustment to the Conversion Rate pursuant to a Fundamental Change Adjustment or a Discretionary
|
|
Adjustment; and
provided further
that the Calculation Agent may limit or alter any such adjustment referenced in this paragraph in a commercially reasonable manner so that the fair value of the Transaction to Dealer is not reduced as a result of such adjustment; and
provided further
that if, with respect to a Merger Event, (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 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 will not be a corporation organized under the laws of the United States, any state thereof or the District of Columbia and/or will not be the Issuer following such Merger Event, in either case, Dealer may elect (in its sole discretion) for Cancellation and Payment (Calculation Agent Determination) to apply.
|
|
Consequences:
|
Upon the occurrence of a Merger Event that causes the Shares to be converted into the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), Counterparty shall reasonably promptly (but in any event prior to the relevant merger date) notify the Calculation Agent of (i) the type and amount of
|
|
consideration that a holder of Shares would have been entitled to in the case of reclassifications, consolidations, mergers, sales or transfers of assets or other transactions that cause Shares to be converted into the right to receive more than a single type of consideration, (ii) if holders of Shares affirmatively make such an election, the weighted average of the types and amounts of consideration to be received by the holders of Shares that affirmatively make such an election, and (iii) the details of the adjustment to be made under the Indenture in respect of such Merger Event.
|
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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 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 such exchange or quotation system, such exchange or quotation system shall thereafter be deemed to be the Exchange.
|
|
Additional Termination Event(s):
|
Notwithstanding anything to the contrary in the Equity Definitions, if, as a result of an Extraordinary Event, any Transaction would be cancelled or terminated (whether in whole or in part) pursuant to Article 12 of the Equity Definitions, an Additional Termination Event (with such terminated Transaction(s) (or portions thereof) being the Affected Transaction(s) and Counterparty being the sole Affected Party) shall be deemed to occur, and, in lieu of Sections 12.7, 12.8 and 12.9 of the Equity Definitions, Section 6 of the Agreement shall apply to such Affected Transaction(s).
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|
(a) Change in Law:
|
Applicable;
provided
that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the phrase “the interpretation” in the third line thereof with the phrase “, or public announcement of, the formal or informal interpretation”, (ii) by adding the phrase “and/or Hedge Position” after the word “Shares” in clause (X) thereof and (iii) by immediately following the word “Transaction” in clause (X) thereof, adding the phrase “in the manner contemplated by the Hedging Party on the Trade Date”;
provided
,
further
that (i) any determination as to whether (A) the adoption of or any change in any applicable law or regulation (including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing
|
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statute) or (B) the promulgation of or any change in the interpretation by any court, tribunal or regulatory authority with competent jurisdiction of any applicable law or regulation (including any action taken by a taxing authority), in each case, constitutes a “Change in Law” shall be made without regard to Section 739 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 or any similar legal certainty provision in any legislation enacted, or rule or regulation promulgated, on or after the Trade Date, and (ii) Section 12.9(a)(ii) of the Equity Definitions is hereby amended by replacing the parenthetical beginning after the word “regulation” in the second line thereof the words “(including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute)”.
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(b) Failure to Deliver:
|
Applicable
|
|
(c) Insolvency Filing:
|
Applicable
|
|
(d) Hedging Disruption:
|
Applicable;
provided
that:
|
|
(i)
|
Section 12.9(a)(v) of the Equity Definitions is hereby modified by:
|
|
(a)
|
inserting the following words at the end of clause (A) thereof: “in the manner contemplated by the Hedging Party on the Trade Date”;
|
|
(b)
|
inserting the following two phrases at the end of such Section:
|
|
(ii)
|
Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line thereof, after the words “to terminate the Transaction”, the words “or a portion of the Transaction affected by such Hedging Disruption”.
|
|
(e) Increased Cost of Hedging:
|
Applicable
|
|
Hedging Party:
|
Dealer
|
|
Determining Party:
|
Dealer
|
|
Non-Reliance:
|
Applicable
|
|
Regarding Hedging Activities:
|
Applicable
|
|
Additional Acknowledgments:
|
Applicable
|
|
3.
Calculation Agent
:
|
Dealer;
provided
that all calculations and determinations made by the Calculation Agent shall be made in good faith and in a commercially reasonable manner;
provided further
that, upon receipt of written request from Counterparty, the Calculation Agent shall promptly provide Counterparty with a written explanation describing in reasonable detail any calculation, adjustment or determination made by it (including any quotations, market data or information from internal or external sources used in making such calculation, adjustment or determination, as the case may be, but without disclosing Dealer’s proprietary models or other information that may be proprietary or subject to contractual, legal or regulatory obligations to not disclose such information), and shall use commercially reasonable efforts to provide such written explanation within five Exchange Business Days from the receipt of such request.
|
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(a)
|
Address for notices or communications to Counterparty:
|
|
To:
|
Dycom Industries, Inc.
|
|
11780 U.S. Highway 1, Suite 600
|
|
Palm Beach Gardens, Florida 33408
|
|
Attn:
|
General Counsel
|
|
Telephone:
|
(561) 627-7171
|
|
Facsimile:
|
(561) 627-7709
|
|
(b)
|
Address for notices or communications to Dealer:
|
|
To:
|
Bank of America, N.A.
|
|
c/o Merrill Lynch, Pierce, Fenner & Smith Incorporated
|
|
One Bryant Park
|
|
New York, NY 10036
|
|
Attn:
|
Peter Tucker, Assistant General Counsel
|
|
Telephone:
|
646-855-5821
|
|
Facsimile:
|
646-822-5633
|
Share Termination Alternative:
|
If applicable, means that Dealer shall deliver to Counterparty the Share Termination Delivery Property on the date on which the Payment Obligation would otherwise be due pursuant to the Transaction, including, without limitation, pursuant to “Consequences of Merger Events” above or Section 12.2, 12.6, 12.7 or 12.9 of the Equity Definitions or Section 6(d)(ii) of the Agreement, as applicable, or such later date or dates as the Calculation Agent may reasonably determine (the “
Share Termination Payment Date
”), in satisfaction of the Payment Obligation.
|
Property:
|
A number of Share Termination Delivery Units, as calculated by the Calculation Agent, equal to the Payment Obligation divided by the Share Termination Unit Price. The Calculation Agent shall adjust the Share Termination Delivery Property by replacing any fractional portion of the aggregate amount of a security therein with an amount of cash equal to the value of such fractional security based on the values used to calculate the Share Termination Unit Price.
|
Share Termination Unit Price:
|
The value of property contained in one Share Termination Delivery Unit on the date such Share Termination Delivery Units are to be delivered as Share Termination Delivery Property, as determined by the Calculation Agent in its discretion by commercially reasonable means and notified by the Calculation Agent to Dealer at the time of notification of the Payment Obligation.
|
Share Termination Delivery Unit:
|
In the case of a Termination Event, Event of Default, Delisting or Additional Disruption Event, one Share or, in the case of an
|
|
Insolvency, Nationalization or Merger Event, one Share or a unit consisting of the number or amount of each type of property received by a holder of one Share (without consideration of any requirement to pay cash or other consideration in lieu of fractional amounts of any securities) in such Insolvency, Nationalization or Merger Event, as applicable. If such Insolvency, Nationalization or Merger Event involves a choice of consideration to be received by holders, such holder shall be deemed to have elected to receive the maximum possible amount of cash.
|
Failure to Deliver:
|
Applicable
|
Other Applicable Provisions:
|
If Share Termination Alternative is applicable, the provisions of Sections 9.8, 9.9, 9.10 and 9.11 of the Equity Definitions will be applicable as if “Physical Settlement” applied to the Transaction, except that all references to “Shares” shall be read as references to “Share Termination Delivery Units”;
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 as a result of the fact that Counterparty is the issuer of any Share Termination Delivery Units (or any part thereof).
|
Yours faithfully, | ||||
BANK OF AMERICA, N.A. | ||||
By: | /s/ Christopher A. Hutmaker | |||
Name: | Christopher A. Hutmaker | |||
Title: | Managing Director | |||
Agreed and Accepted By: | |||
DYCOM INDUSTRIES , INC. | |||
By: | /s/ H. Andrew DeFerrari | ||
Name: | H. Andrew DeFerrari | ||
Title: | Senior Vice President & Chief Financial Officer | ||
To:
|
Dycom Industries, Inc.
|
|
11780 U.S. Highway 1, Suite 600
|
|
Palm Beach Gardens, Florida 33408
|
From:
|
Wells Fargo Bank, National Association
|
Re:
|
Additional Convertible Bond Hedge Transaction
|
Date:
|
September 10, 2015
|
|
Trade Date:
|
September 10, 2015
|
|
Effective Date:
|
The closing date of the issuance of the Convertible Securities issued pursuant to the option to purchase additional Convertible Securities exercised on the date hereof.
|
|
Option Style:
|
Modified American, as described under “Procedures for Exercise” below.
|
|
Option Type:
|
Call
|
|
Seller:
|
Dealer
|
|
Buyer:
|
Counterparty
|
|
Shares:
|
The Common Stock of Counterparty, par value USD
0.33 1/3
(Ticker Symbol: “DY”).
|
|
Applicable Percentage:
|
20.00%
|
|
Number of Options:
|
The number of Optional Securities in denominations of USD1,000 principal amount purchased pursuant to the exercise by Goldman, Sachs & Co. and Merrill Lynch, Pierce, Fenner & Smith Incorporated as representatives (the “
Representatives
”) of the Initial Purchasers (as defined in the Purchase Agreement),
|
|
Option Entitlement:
|
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 a Fundamental Change Adjustment or a Discretionary Adjustment).
|
Fundamental Change Adjustment:
|
Any adjustment to the Conversion Rate pursuant to Section 4.06 of the Indenture.
|
|
Discretionary Adjustment:
|
Any adjustment to the Conversion Rate pursuant to Section 4.05(b) of the Indenture.
|
|
Strike Price:
|
As of any date, an amount in USD equal to USD1,000
divided by
the Option Entitlement as of such date. The Strike Price shall be rounded by the Calculation Agent in accordance with the applicable provisions of the Indenture.
|
|
Number of Shares:
|
As of any date, a number of Shares equal to the product of (i) the Applicable Percentage, (ii) the Number of Options and (iii) the Option Entitlement.
|
|
Premium:
|
USD3,104,400.00.
|
|
Premium Payment Date:
|
The Effective Date
|
|
Exchange:
|
The New York Stock Exchange
|
|
Related Exchange:
|
All Exchanges
|
|
Exercise Dates:
|
Each Conversion Date.
|
|
Conversion Date:
|
Each “Conversion Date” (as defined in the Indenture) occurring during the Exercise Period for Convertible Securities each in denominations of USD1,000 principal amount that are not “Relevant Convertible Securities” under (and as defined in) the confirmation between the parties hereto regarding the Base Convertible Bond Hedge Transaction dated September 9, 2015 (the “
Base Convertible Bond Hedge 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 Convertible Bond Hedge Transaction Confirmation, Convertible Securities that are converted pursuant to the Indenture shall be allocated first to the Base Convertible Bond Hedge Transaction Confirmation until all Options thereunder are exercised or terminated.
|
|
Exercise Period:
|
The period from and excluding the Effective Date to
|
|
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).
|
|
Conversion Dates:
|
Applicable; and means that 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, subject to “Notice of Exercise” below.
|
|
Notice Deadline:
|
In respect of any exercise of Options hereunder on any Conversion Date, 12:00 P.M., New York City time, on (i) in the case the applicable Relevant Convertible Securities will be settled by Counterparty by delivery of Shares only (together with cash in lieu of any fractional Share), the Scheduled Trading Day immediately following the relevant Conversion Date, or (ii) otherwise, the Scheduled Trading Day immediately preceding the first Scheduled Trading Day of the relevant Cash Settlement Averaging Period;
provided
that in the case of any exercise of Options hereunder in connection with the conversion of any Relevant Convertible Securities for any Conversion Date occurring during the period from and including the 55th “Scheduled Trading Day” (as defined in the Indenture) prior to the Maturity Date (or if Counterparty has elected to settle all conversions of Convertible Securities solely in Shares (together with cash in lieu of any fractional Share) or through combination settlement with the “Specified Dollar Amount” (as defined in the Indenture) of less than USD1,000 and such election is effective on or prior to the 105
th
“Scheduled Trading Day” (as defined in the Indenture) prior to the Maturity Date, then from and including such date), to and including the Expiration Date (such period, the “
Final Conversion Period
”), the Notice Deadline shall be 12:00 P.M., New York City time, on the “Scheduled Trading Day” (as defined in the Indenture) immediately preceding the Maturity Date.
|
|
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 and such obligation in respect of such exercise shall be permanently extinguished unless Counterparty notifies Dealer in writing prior to 12:00 P.M., New York City time, on the Notice Deadline in respect of such exercise, of (i) the number of Relevant Convertible Securities being converted on the related Conversion Date
|
|
|
(specifying, if applicable, whether all or any portion of such Convertible Securities are Convertible Securities as to which additional Shares would be added to the Conversion Rate (as defined in the Indenture) pursuant to Section 4.06 of the Indenture (the “
Make-Whole Convertible Securities
”)), (ii) the scheduled settlement date under the Indenture for the Relevant Convertible Securities for such Conversion Date, (iii) whether such Relevant Convertible Securities will be settled by Counterparty by delivery of cash, Shares or a combination of cash and Shares and, if such a combination, the “Specified Dollar Amount” (as defined in the Indenture) and (iv) the first “Scheduled Trading Day” (as defined in the Indenture) of the relevant “Observation Period” (as defined in the Indenture), if any;
provided
that in the case of any exercise of Options in connection with the conversion of any Relevant Convertible Securities for any Conversion Date occurring during the Final Conversion Period, the contents of such notice shall be as set forth in clauses (i) and (ii) above;
provided, further,
that any “Notice of Exercise” delivered to Dealer pursuant to the Base Convertible Bond Hedge 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. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Securities Exchange Act of 1934, as amended (the “
Exchange Act
”) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Securities.
For the avoidance of doubt, if Counterparty fails to give such notice when due
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
.
If applicable, the Notice of Exercise shall also contain the Settlement Method Election Provisions. Notwithstanding the foregoing, such notice (and the related exercise of Options) shall be effective with respect to Options relating to Convertible Securities with a Conversion Date occurring prior to the first day of the Final Conversion Period if given after the Notice Deadline, but prior to 4:00 PM New York City time, on the fifth Exchange Business Day following the Notice Deadline, in which event Dealer’s Delivery Obligation shall not be extinguished but may instead be adjusted by the Calculation Agent in a commercially reasonable manner to reflect the additional costs (including, but not limited to, hedging mismatches and market losses) and expenses incurred by Dealer in connection with its hedging
|
|
Settlement Method:
|
Counterparty shall notify Dealer in writing of the final settlement method (and, if applicable, the final Specified Dollar Amount) elected (or deemed to be elected) with respect to the Convertible Securities before 4:00 P.M. (New York City time) on the earlier to occur of (x) the date on which it makes the irrevocable election of a settlement method in accordance with Section 8.01(j) of the Indenture and (y) March 15, 2021.
If applicable, the Notice of Final convertible Security Settlement Method shall also contain the Settlement Method Election Provisions.
|
|
Giving Notice:
|
As specified in Section 6(b) below.
|
|
Settlement Date:
|
For any Exercise Date, the settlement date for the cash (if any) and/or Shares (if any) to be delivered in respect of the Relevant Convertible Securities for the relevant Conversion Date under the terms of the Indenture;
provided
that the Settlement Date shall not
|
|
Delivery Obligation:
|
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 to Counterparty on the related Settlement Date (the “
Delivery Obligation
”):
|
Convertible Security Settlement Method:
|
For any Relevant Convertible Securities, if (i) Counterparty has notified Dealer in the related Notice of Exercise (or in the Notice of Final Convertible Security Settlement Method, as the case may be) 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 4.03(a)(i) of the Indenture with a Specified Dollar Amount of at least USD1,000 (a “
Cash Election
”) and (ii) such Notice of Exercise (or such Notice of Final Convertible Security Settlement Method, as the case may be) contains all of the Settlement Method Election Provisions (unless such Settlement Method Election Provisions are not required in the circumstances set forth in the parenthetical under “Settlement Method Election
|
Provisions” below), the Convertible Security Settlement Method shall be the settlement method actually so elected by Counterparty in respect of such Relevant Convertible Securities; otherwise, the Convertible Security Settlement Method shall (x) assume Counterparty had made a Cash Election with respect to such Relevant Convertible Securities with a Specified Dollar Amount of USD1,000 per Relevant Convertible Security and (y) be calculated as if the relevant “Observation Period” pursuant to Section 4.03(a)(ii)(C) of the Indenture consisted of 100 “VWAP Trading Days” (as defined in the Indenture) commencing on (I) the second “Scheduled Trading Day” (as defined in the Indenture) after the Conversion Date for conversions with a related Conversion Date occurring prior to the Final Conversion Period or (II) the 102
nd
“Scheduled Trading Day” (as defined in the Indenture) prior to the Maturity Date for conversions with a related Conversion Date occurring during the Final Conversion Period (such “Observation Period”, subject to the provisions of this clause (y), the “
Cash Settlement Averaging Period
” for such Relevant Convertible Securities).
|
Settlement Method Election Provisions:
|
In order for the Convertible Security Settlement Method to be the settlement method actually elected by Counterparty under the Indenture in respect of the applicable Relevant Convertible Securities in accordance with “Convertible Security Settlement Method” above, the related Notice of Exercise (or Notice of Final Convertible Security Settlement Method, as the case may be) must contain in writing the following representations, warranties and acknowledgments from Counterparty to Dealer as of such notice delivery date (except that such representations, warranties and acknowledgments will not be required in the case where the Relevant Convertible Securities will be settled by Counterparty by delivery of a combination of cash and Shares with a Specified Dollar Amount equal to USD1,000 where Counterparty has either (x) failed to elect a settlement method under the Indenture in respect of the applicable Relevant Convertible Securities so that Counterparty is deemed to have elected such settlement method by default pursuant to Section 4.03(a)(i) of the Indenture or (y) merely confirmed such deemed election of the default settlement method pursuant to Section 4.03(a)(i) of the Indenture):
|
|
(i) none of Counterparty and its officers or directors, or any person that controls, potentially controls, or otherwise exercises influence over, Counterparty’s decision to elect the Convertible Security Settlement Method is making such election “on the basis of” (within the meaning of
|
|
(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; Counterparty is not electing the settlement method under the Indenture for the Relevant Convertible Securities or the Convertible Security Settlement Method to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for Shares) or otherwise in violation of the Exchange Act; and Counterparty has not entered into or altered any hedging transaction relating to the Shares corresponding to or offsetting the Transaction;
|
|
(iii) Counterparty has the power 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 all necessary action to authorize such election, execution, delivery and performance;
|
|
(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 constitutional documents, any order or judgment of any court or other agency of government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets; and
|
|
(v) any transaction that Dealer makes with respect to the Shares during the period beginning at the time that Counterparty delivers such notice and ending at the close of business on the final day of the Cash Settlement Averaging Period shall be made by Dealer at Dealer’s sole discretion for Dealer’s own account and Counterparty shall not have, and shall not attempt to exercise, any influence over how, when, whether or at what price Dealer effects such transactions, including, without limitation, the prices paid or received by Dealer per Share pursuant to such transactions, or whether such transactions are made on any securities exchange or privately.
|
|
Notice of Delivery Obligation:
|
No later than the Exchange Business Day
|
|
immediately following the last day of the relevant Cash Settlement Averaging Period, Counterparty shall give Dealer notice of the final number of Shares and/or amount of cash comprising the settlement obligation under the Indenture in respect of the Relevant Convertible Securities;
provided
that, with respect to any Exercise Date occurring during the Final Conversion Period, Counterparty may provide Dealer, within the time period set forth above, with a single notice of the aggregate number of Shares and/or amount of cash comprising the settlement obligation under the Indenture in respect of the Relevant Convertible Securities 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 shall not limit Counterparty’s obligations with respect to a Notice of Exercise or Notice of 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, the product of (i) the Applicable Percentage and (ii)(A) the Total Convertible Share Obligation Value of such Relevant Convertible Securities for such Conversion Date
minus
(B) 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 (except that such number of Shares shall be determined without taking into consideration any rounding pursuant to Section 4.03(b) of the Indenture)
multiplied by
(B) the Share Obligation Value Price
plus
(ii) an amount equal to (A) the fractional Shares, if any, that would have resulted but for the rounding under (i)(A) above
multiplied by
(B) the Share Obligation Value Price
plus
(iii) an amount of cash equal to the aggregate amount of cash that Counterparty is obligated to deliver to the holder(s) of Relevant Convertible Securities for such Conversion Date pursuant to the Indenture;
provided
that, the Total Convertible Share Obligation Value shall be determined excluding 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 pursuant to a Fundamental Change Adjustment or a Discretionary Adjustment 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.
|
|
Share Obligation Value Price:
|
The opening price as displayed under the heading “Op” on Bloomberg page “DY.N <Equity>“ (or any successor thereto) on the applicable Settlement Date.
|
|
Other Applicable Provisions:
|
To the extent Dealer is obligated to deliver Shares hereunder, the provisions of Sections 9.8, 9.9, 9.10 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.
|
|
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 Sections 4.04(a) through (e) of the Indenture that the Calculation Agent determines would result in an adjustment under the Indenture by reference to such Section thereof, the Calculation Agent shall 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, subject to “Discretionary Adjustments” below.
|
|
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 or its board of directors (including, without limitation, pursuant to Section 4.05(a) of the Indenture or pursuant to Section 4.07(a) of the Indenture any supplemental indenture entered into
|
|
Merger Events:
|
Notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means any “Merger Event” as defined in Section 4.07(a) of the Indenture.
|
|
Consequences of Merger Events:
|
Notwithstanding Section 12.2 of the Equity Definitions, upon the occurrence of a Merger Event that the Calculation Agent determines by reference to Section 4.07 of the Indenture would result in an adjustment under the Indenture, the Calculation Agent shall 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;
provided
that such adjustment shall be made without regard to any adjustment to the Conversion Rate pursuant to a Fundamental Change Adjustment or a Discretionary
|
|
Adjustment; and
provided further
that the Calculation Agent may limit or alter any such adjustment referenced in this paragraph in a commercially reasonable manner so that the fair value of the Transaction to Dealer is not reduced as a result of such adjustment; and
provided further
that if, with respect to a Merger Event, (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 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 will not be a corporation organized under the laws of the United States, any state thereof or the District of Columbia and/or will not be the Issuer following such Merger Event, in either case, Dealer may elect (in its sole discretion) for Cancellation and Payment (Calculation Agent Determination) to apply.
|
|
Consequences:
|
Upon the occurrence of a Merger Event that causes the Shares to be converted into the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), Counterparty shall reasonably promptly (but in any event prior to the relevant merger date) notify the Calculation Agent of (i) the type and amount of
|
|
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 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 such exchange or quotation system, such exchange or quotation system shall thereafter be deemed to be the Exchange.
|
|
Additional Termination Event(s):
|
Notwithstanding anything to the contrary in the Equity Definitions, if, as a result of an Extraordinary Event, any Transaction would be cancelled or terminated (whether in whole or in part) pursuant to Article 12 of the Equity Definitions, an Additional Termination Event (with such terminated Transaction(s) (or portions thereof) being the Affected Transaction(s) and Counterparty being the sole Affected Party) shall be deemed to occur, and, in lieu of Sections 12.7, 12.8 and 12.9 of the Equity Definitions, Section 6 of the Agreement shall apply to such Affected Transaction(s).
|
|
(a) Change in Law:
|
Applicable;
provided
that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the phrase “the interpretation” in the third line thereof with the phrase “, or public announcement of, the formal or informal interpretation”, (ii) by adding the phrase “and/or Hedge Position” after the word “Shares” in clause (X) thereof and (iii) by immediately following the word “Transaction” in clause (X) thereof, adding the phrase “in the manner contemplated by the Hedging Party on the Trade Date”;
provided
,
further
that (i) any determination as to whether (A) the adoption of or any change in any applicable law or regulation (including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing
|
|
statute) or (B) the promulgation of or any change in the interpretation by any court, tribunal or regulatory authority with competent jurisdiction of any applicable law or regulation (including any action taken by a taxing authority), in each case, constitutes a “Change in Law” shall be made without regard to Section 739 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 or any similar legal certainty provision in any legislation enacted, or rule or regulation promulgated, on or after the Trade Date, and (ii) Section 12.9(a)(ii) of the Equity Definitions is hereby amended by replacing the parenthetical beginning after the word “regulation” in the second line thereof the words “(including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute)”.
|
|
(b) Failure to Deliver:
|
Applicable
|
|
(c) Insolvency Filing:
|
Applicable
|
|
(d) Hedging Disruption:
|
Applicable;
provided
that:
|
|
(i)
|
Section 12.9(a)(v) of the Equity Definitions is hereby modified by:
|
|
(a)
|
inserting the following words at the end of clause (A) thereof: “in the manner contemplated by the Hedging Party on the Trade Date”;
|
|
(b)
|
inserting the following two phrases at the end of such Section:
|
|
(ii)
|
Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line thereof, after the words “to terminate the Transaction”, the words “or a portion of the Transaction affected by such Hedging Disruption”.
|
|
(e) Increased Cost of Hedging:
|
Applicable
|
|
Hedging Party:
|
Dealer
|
|
Determining Party:
|
Dealer
|
|
Non-Reliance:
|
Applicable
|
|
Regarding Hedging Activities:
|
Applicable
|
|
Additional Acknowledgments:
|
Applicable
|
|
3.
Calculation Agent
:
|
Dealer;
provided
that all calculations and determinations made by the Calculation Agent shall be made in good faith and in a commercially reasonable manner;
provided further
that, upon receipt of written request from Counterparty, the Calculation Agent shall promptly provide Counterparty with a written explanation describing in reasonable detail any calculation, adjustment or determination made by it (including any quotations, market data or information from internal or external sources used in making such calculation, adjustment or determination, as the case may be, but without disclosing Dealer’s proprietary models or other information that may be proprietary or subject to contractual, legal or regulatory obligations to not disclose such information), and shall use commercially reasonable efforts to provide such written explanation within five Exchange Business Days from the receipt of such request.
|
|
(a)
|
Address for notices or communications to Counterparty:
|
|
To:
|
Dycom Industries, Inc.
|
|
11780 U.S. Highway 1, Suite 600
|
|
Palm Beach Gardens, Florida 33408
|
|
Attn:
|
General Counsel
|
|
Telephone:
|
(561) 627-7171
|
|
Facsimile:
|
(561) 627-7709
|
|
(b)
|
Address for notices or communications to Dealer:
|
Share Termination Alternative:
|
If applicable, means that Dealer shall deliver to Counterparty the Share Termination Delivery Property on the date on which the Payment Obligation would otherwise be due pursuant to the Transaction, including, without limitation, pursuant to “Consequences of Merger Events” above or Section 12.2, 12.6, 12.7 or 12.9 of the Equity Definitions or Section 6(d)(ii) of the Agreement, as applicable, or such later date or dates as the Calculation Agent may reasonably determine (the “
Share Termination Payment Date
”), in satisfaction of the Payment Obligation.
|
Property:
|
A number of Share Termination Delivery Units, as calculated by the Calculation Agent, equal to the Payment Obligation divided by the Share Termination Unit Price. The Calculation Agent shall adjust the Share Termination Delivery Property by replacing any fractional portion of the aggregate amount of a security therein with an amount of cash equal to the value of such fractional security based on the values used to calculate the Share Termination Unit Price.
|
Share Termination Unit Price:
|
The value of property contained in one Share Termination Delivery Unit on the date such Share Termination Delivery Units are to be
|
Share Termination Delivery Unit:
|
In the case of a Termination Event, Event of Default, Delisting or Additional Disruption Event, one Share or, in the case of an Insolvency, Nationalization or Merger Event, one Share or a unit consisting of the number or amount of each type of property received by a holder of one Share (without consideration of any requirement to pay cash or other consideration in lieu of fractional amounts of any securities) in such Insolvency, Nationalization or Merger Event, as applicable. If such Insolvency, Nationalization or Merger Event involves a choice of consideration to be received by holders, such holder shall be deemed to have elected to receive the maximum possible amount of cash.
|
Failure to Deliver:
|
Applicable
|
Other Applicable Provisions:
|
If Share Termination Alternative is applicable, the provisions of Sections 9.8, 9.9, 9.10 and 9.11 of the Equity Definitions will be applicable as if “Physical Settlement” applied to the Transaction, except that all references to “Shares” shall be read as references to “Share Termination Delivery Units”;
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 as a result of the fact that Counterparty is the issuer of any Share Termination Delivery Units (or any part thereof).
|
WELLS FARGO BANK, NATIONAL ASSOCIATION | ||||
By: | /s/ Thomas Yates | |||
Name: | Thomas Yates | |||
Title: | Managing Director | |||
Agreed and Accepted By: | |||
DYCOM INDUSTRIES , INC. | |||
By: | /s/ H. Andrew DeFerrari | ||
Name: | H. Andrew DeFerrari | ||
Title: | Senior Vice President & Chief Financial Officer | ||
To:
|
Dycom Industries, Inc.
11780 U.S. Highway 1, Suite 600
Palm Beach Gardens, Florida 33408
|
A/C:
|
051130730
|
From:
|
|
Re:
|
Base Issuer Warrant Transaction
|
Ref. No:
|
SDB2502800695
|
Date:
|
|
Trade Date:
|
September 9, 2015
|
|
Effective Date:
|
September 15, 2015, or such other date as agreed between the parties, subject to Section 8(k) below
|
|
Components:
|
The Transaction will be divided into individual Components, each with the terms set forth in this Confirmation, and, in particular, with the Number of Warrants and Expiration Date set forth in this Confirmation. The payments and deliveries to be made upon settlement of the Transaction will be determined separately for each Component as if each Component were a separate Transaction under the Agreement.
|
|
Warrant Style:
|
European
|
|
Warrant Type:
|
Call
|
|
Seller:
|
Counterparty
|
|
Buyer:
|
Dealer
|
|
Shares:
|
The Common Stock of Counterparty, par value USD
0.33 1/3
(Ticker Symbol: “DY”).
|
|
Number of Warrants:
|
For each Component, as provided in Annex A to this Confirmation.
|
|
Warrant Entitlement:
|
One Share per Warrant
|
|
Strike Price:
|
USD130.4275
|
|
Notwithstanding anything to the contrary in the Agreement, this Confirmation or the Equity Definitions, in no event shall the Strike Price be subject to adjustment to the extent that, after giving effect to such adjustment, the Strike Price would be less than USD 74.53, except for any adjustment pursuant to the terms of this Confirmation and the Equity Definitions in connection with stock splits or similar changes to Counterparty’s capitalization.
|
|
Number of Shares:
|
As of any date, a number of Shares equal to the product of the Number of Warrants and the Warrant Entitlement.
|
|
Premium:
|
USD32,340,000.00
|
|
Premium Payment Date:
|
The Effective Date
|
|
Exchange:
|
New York Stock Exchange
|
|
Related Exchange:
|
All Exchanges
|
|
In respect of any Component:
|
|
Expiration Time:
|
Valuation Time
|
|
Expiration Date:
|
As provided in
Annex A
to this Confirmation (or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day that is not already an Expiration Date for another Component);
provided
that if that date is a Disrupted Day, the Expiration Date for such Component shall be the first succeeding Scheduled Trading Day that is not a Disrupted Day and is not or is not deemed to be an Expiration Date in respect of any other Component of the Transaction hereunder; and
provided further
that if the Expiration Date has not occurred pursuant to the preceding proviso as of the Final Disruption Date, the Calculation Agent shall have the right to elect, in its sole discretion, that the Final Disruption Date shall be the Expiration Date (irrespective of whether such date is an Expiration Date in respect of any other Component for the Transaction). Notwithstanding the foregoing and anything to the contrary in the Equity Definitions, if a Market Disruption Event occurs on any Expiration Date, the Calculation Agent may determine that such Expiration Date is a Disrupted Day only in part, in which case the Calculation Agent shall make adjustments to the Number of Warrants for the relevant Component for which such day shall be the Expiration Date, shall designate the Scheduled Trading Day determined in the manner described in the immediately preceding sentence as the Expiration Date for the remaining Warrants for such Component and may determine the VWAP Price based on transactions in the Shares effected before the relevant Market Disruption Event occurred and/or after the relevant Market Disruption Event ended. Any Scheduled Trading Day on which, as of the date hereof, the Exchange is scheduled to close prior to its normal close of trading shall be deemed not to be a Scheduled Trading Day; if a closure of the Exchange prior to its normal close of trading on any Scheduled Trading Day is scheduled following the date hereof, then such Scheduled Trading Day shall be deemed to be a Disrupted Day in full
.
Section 6.6 of the Equity Definitions shall not apply to any Valuation Date occurring on an
|
|
Market Disruption Event:
|
Section 6.3(a) of the Equity Definitions is hereby amended by (A) deleting the words “during the one hour period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be,” in clause (ii) thereof and (B) by replacing the words “or (iii) an Early Closure.” therein with “(iii) an Early Closure, or (iv) a Regulatory Disruption that Dealer has elected, by notice to Counterparty, to deem to be a Market Disruption Event.”
|
|
Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the term “Scheduled Closing Time” in the fourth line thereof.
|
|
Regulatory Disruption:
|
Any event that Dealer, in its good faith and reasonable discretion (based on advice of counsel), determines makes it appropriate, with regard to (x) any legal, regulatory or self-regulatory requirements or (y) related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer generally applicable in similar situations and applied in a non-discriminatory manner), for Dealer to refrain from or decrease any market activity in connection with the Transaction. If Dealer determines in good faith that a Market Disruption Event has occurred on any Scheduled Trading Day solely pursuant to clause (y) above and solely with respect to voluntarily adopted policies and procedures, such Scheduled Trading Day will be a Disrupted Day in full.
|
|
Automatic Exercise:
|
Applicable; and means that the Number of Warrants for the corresponding Expiration Date will be deemed to be automatically exercised at the Expiration Time on such Expiration Date unless Dealer notifies Seller (by telephone or in writing) prior to the Expiration Time on such Expiration Date that it does not wish Automatic Exercise to occur, in which case Automatic Exercise will not apply to such Expiration Date.
|
|
Counterparty’s Telephone Number
|
|
and Telex and/or Facsimile Number
|
|
and Contact Details for purpose of
|
|
Giving Notice:
|
As provided in Section 6(a) below.
|
|
In respect of any Component:
|
|
Settlement Currency:
|
USD
|
|
Net Share Settlement:
|
On each Settlement Date, Counterparty shall deliver to Dealer a number of Shares equal to the Number of
|
|
|
Shares to be Delivered for such Settlement Date to the account specified by Dealer and cash in lieu of any fractional Share valued at the Relevant Price on the Valuation Date corresponding to such Settlement Date. If, in the reasonable opinion of Counterparty or Dealer, based on advice of counsel, for any reason, the Shares deliverable upon Net Share Settlement would not be immediately freely transferable by Dealer under Rule 144 under the Securities Act of 1933, as amended (the “
Securities Act
”), then Dealer may elect to either (x) accept delivery of such Shares notwithstanding any restriction on transfer or (y) accept delivery of such Shares subject to a discount and have the provisions set forth in Section 8(b) below apply.
|
|
The Number of Shares to be Delivered shall be delivered by Counterparty to Dealer no later than 12:00 noon (local time in New York City) on the relevant Settlement Date.
|
Number of Shares to be Delivered:
|
In respect of any Exercise Date, subject to the last sentence of Section 9.5 of the Equity Definitions, the product of (i) the number of Warrants exercised or deemed exercised on such Exercise Date, (ii) the Warrant Entitlement and (iii) (A) the excess of the VWAP Price on the Valuation Date occurring in respect of such Exercise Date over the Strike Price (or, if there is no such excess, zero)
divided by
(B) such VWAP Price.
|
|
VWAP Price:
|
For any Exchange Business Day, as determined by the Calculation Agent based on the New York Volume Weighted Average Price per Share for the regular trading session (including any extensions thereof)
of the Exchange on such Exchange Business Day (without regard to pre-open or after hours trading outside of such regular trading session), as published by Bloomberg at 4:15 P.M., New York City time (or 15 minutes following the end of any extension of the regular trading session), on such Exchange Business Day,
on Bloomberg page “DY.N <Equity> AQR” (or any successor thereto)
(or if such published volume weighted average price is unavailable or is manifestly incorrect, the market value of one Share on such Exchange Business Day,
as determined by the Calculation Agent using a volume weighted method)
.
|
|
Other Applicable Provisions:
|
The provisions of Sections 9.1(c), 9.4, 9.8, 9.9, 9.10, 9.11 and 9.12 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
|
|
In respect of any Component:
|
|
Method of Adjustment:
|
Calculation Agent Adjustment;
provided
that in respect of an Extraordinary Dividend, “Calculation Agent Adjustment” shall be as described in the provision below. For the avoidance of doubt, Calculation Agent Adjustment (including, without limitation, in respect of Extraordinary Dividends) shall continue to apply until the obligations of the parties (including any obligations of Counterparty pursuant to Section 8(e) below) under the Transaction have been satisfied in full.
|
|
Extraordinary Dividend:
|
Any cash dividend or distribution on the Shares with an ex-dividend date occurring on or after the Trade Date and on or prior to the Expiration Date for the Component with the latest Expiration Date (or, if any Deficit Shares are owed pursuant to Section 8(e) below, such later date on which Counterparty’s obligations under this Transaction have been satisfied in full).
|
Extraordinary Dividend Adjustment:
|
If at any time during the period from and including the Trade Date, to and including the Expiration Date for the Component with the latest Expiration Date
|
|
(or, if any Deficit Shares are owed pursuant to Section 8(e) below, such later date on which Counterparty’s obligations under this Transaction have been satisfied in full), an ex-dividend date for an Extraordinary Dividend occurs or is deemed to occur, then the Calculation Agent will make adjustments to any one or more of the Strike Price, the Number of Warrants, the Warrant Entitlement and/or any other variable relevant to the exercise, settlement, payment or other terms of the Transaction as it determines appropriate, in its commercially reasonable discretion, to account for the economic effect on the Transaction of such Extraordinary Dividend.
|
|
New Shares:
|
In the definition of New Shares in Section 12.1(i) of the Equity Definitions, the text in clause (i) thereof shall be deleted in its entirety and replaced with “publicly quoted, traded or listed on any of The New York Stock Exchange, The NASDAQ Global Market or The NASDAQ Global Select Market (or their respective successors) and of a corporation that is organized under the laws of the United States, any State thereof or the District of Columbia”.
|
|
Merger Event:
|
Applicable;
provided
that if an event occurs that constitutes both a Merger Event under Section
|
|
|
12.1(b) of the Equity Definitions and an Additional Termination Event under Section 8(j)(iv) of this Confirmation,
Dealer may elect, in its commercially reasonable judgment, whether the provisions of Section 12.2 of the Equity Definitions or Section
8(j)(iv)
will apply
.
|
|
(a)
|
Share-for-Share:
|
Modified Calculation Agent Adjustment
|
|
(b)
|
Share-for-Other:
|
Cancellation and Payment (Calculation Agent Determination)
|
|
(c)
|
Share-for-Combined:
|
Cancellation and Payment (Calculation Agent Determination);
provided
that the Calculation Agent may elect Component Adjustment for all or part of the Transaction.
|
|
Tender Offer:
|
Applicable;
provided
that if an event occurs that constitutes both a Tender Offer under Section 12.1(d) of the Equity Definitions and an Additional Termination Event under Section 8(j)(iii) of this Confirmation,
Dealer may elect, in its commercially reasonable judgment, whether the provisions of Section 12.3 of the Equity Definitions or Section
8(j)(iii)
will apply
.
|
|
Consequences of Tender Offers:
|
|
(a)
|
Share-for-Share:
|
Modified Calculation Agent Adjustment
|
|
(b)
|
Share-for-Other:
|
Modified Calculation Agent Adjustment
|
|
(c)
|
Share-for-Combined:
|
Modified Calculation Agent Adjustment
|
Consequences of Announcement Events:
|
Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions;
provided
that, in respect of an Announcement Event, references to “Tender Offer” shall be replaced by references to “Announcement Event” and references to “Tender Offer Date” shall be replaced by references to “date of such Announcement Event”. An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, to which Article 12 of the Equity Definitions is applicable.
|
|
Announcement Event:
|
(i) The public announcement of any Merger Event or Tender Offer, the intention to enter into a Merger Event or Tender Offer or any transaction or event that, if completed, would constitute a Merger Event or Tender Offer, (ii) the public announcement by Counterparty or any of its subsidiaries of any acquisition where the aggregate consideration exceeds 15% of the market capitalization of Counterparty as of the date of such announcement (an “
Acquisition Transaction
”), (iii) the public announcement by Counterparty of an intention to solicit or enter into, or to explore strategic alternatives or other similar undertaking that may
|
|
|
include, a Merger Event, Tender Offer or Acquisition Transaction or (iv) any subsequent public announcement 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, whether such announcement is made by Counterparty or a third party);
provided
that, 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.
|
|
Announcement Date:
|
The definition of “Announcement Date” in Section 12.1 of the Equity Definitions is hereby amended by (i) replacing the words “a firm” with the word “any” in the second and fourth lines thereof, (ii) replacing the word “leads to the” with the words “, if completed, would lead to a” in the third and the fifth lines thereof, (iii) replacing the words “voting shares” with the word “Shares” in the fifth line thereof, and (iv) inserting the words “by any entity” after the word “announcement” in the second and the fourth lines thereof.
|
|
Modified Calculation
|
|
Agent Adjustment:
|
If, in respect of a Merger Event, the Counterparty under the Transaction following such Merger Event will not be the issuer of the New Shares, the Dealer may elect (in its sole discretion) for Cancellation and Payment (Calculation Agent Determination) to apply. In addition, if, in respect of any Merger Event to which Modified Calculation Agent Adjustment applies, the adjustments to be made in accordance with Section 12.2(e)(i) of the Equity Definitions would result in Counterparty being different from the issuer of the Shares, then with respect to such Merger Event, as a condition precedent to the adjustments contemplated in Section 12.2(e)(i) of the Equity Definitions, Counterparty and the issuer of the Shares shall, prior to the Merger Date, have entered into such documentation containing representations, warranties and agreements relating to securities law and other issues as requested by Dealer that Dealer has determined, in its reasonable discretion, to be reasonably necessary or appropriate to allow Dealer to continue as a party to the Transaction, as adjusted under Section 12.2(e)(i) of the Equity Definitions, and to preserve its hedging or hedge unwind activities in connection with the Transaction in a manner compliant with applicable legal, regulatory or self-regulatory requirements, or with related policies
|
|
|
and procedures applicable to Dealer (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer), and if such conditions are not met or if the Calculation Agent determines that no adjustment that it could make under Section 12.2(e)(i) of the Equity Definitions will produce a commercially reasonable result, then the consequences set forth in Section 12.2(e)(ii) of the Equity Definitions shall apply.
|
|
Nationalization, Insolvency
|
|
or Delisting:
|
Cancellation and Payment (Calculation Agent Determination);
provided
that in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it will also constitute a Delisting if the 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 such exchange or quotation system, such exchange or quotation system shall thereafter be deemed to be the Exchange.
|
|
Additional Termination Event(s):
|
Notwithstanding anything to the contrary in the Equity Definitions, if, as a result of an Extraordinary Event, any Transaction would be cancelled or terminated (whether in whole or in part) pursuant to
|
|
|
Article 12 of the Equity Definitions, an Additional Termination Event (with such terminated Transaction(s) (or portions thereof) being the Affected Transaction(s) and Counterparty being the sole Affected Party) shall be deemed to occur, and, in lieu of Sections 12.7, 12.8 and 12.9 of the Equity Definitions, Section 6 of the Agreement shall apply to such Affected Transaction(s).
|
|
(a)
|
Change in Law:
|
Applicable; provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the phrase “the interpretation” in the third line thereof with the phrase “, or public announcement of, the formal or informal interpretation”, (ii) by adding the phrase “and/or Hedge Position” after the word “Shares” in clause (X) thereof and (iii) by immediately following the word “Transaction” in clause (X) thereof, adding the phrase “in the manner contemplated by the Hedging Party on the Trade Date”; provided, further that (i) any determination as to whether (A) the adoption of or any change in any applicable law or regulation (including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute) or (B) the promulgation of or any change in the interpretation by any court, tribunal or regulatory authority with competent jurisdiction of any applicable law or regulation (including any action taken by a taxing authority), in each case, constitutes a “Change in Law” shall be made without regard to Section 739 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 or any similar legal certainty provision in any legislation enacted, or rule or regulation promulgated, on or after the Trade Date, and (ii) Section 12.9(a)(ii) of the Equity Definitions is hereby amended by replacing the parenthetical beginning after the word “regulation” in the second line thereof with the phrase “(including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute)”.
|
|
(b)
|
Failure to Deliver:
|
Not Applicable
|
|
(c)
|
Insolvency Filing:
|
Applicable
|
|
(d)
|
Hedging Disruption:
|
Applicable;
provided
that
|
|
(i)
|
Section 12.9(a)(v) of the Equity Definitions is hereby modified by:
|
|
(a)
|
inserting the following words at the end of clause (A) thereof: “in the manner
|
|
|
contemplated by the Hedging Party on the Trade Date”;
|
|
(b)
|
inserting the following two phrases at the end of such Section:
|
|
“For the avoidance of doubt, the term “equity price risk” shall be deemed to include, but shall not be limited to, stock price and volatility risk. And, for the further avoidance of doubt, the transactions or assets referred to in phrases (A) or (B) above must be available on commercially reasonable pricing and other terms.”;
|
|
(ii)
|
Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line thereof, after the words “to terminate the Transaction”, the words “or a portion of the Transaction affected by such Hedging Disruption”.
|
|
(e)
|
Increased Cost of Hedging:
|
Applicable
|
|
(f)
|
Loss of Stock Borrow:
|
Applicable
|
|
Maximum Stock Loan Rate:
|
200 basis points per annum
|
|
(g)
|
Increased Cost of Stock Borrow:
|
Applicable
|
|
Initial Stock Loan Rate:
|
Prior to September 16, 2021, zero basis points per annum, and thereafter, 25 basis points per annum.
|
|
Hedging Party:
|
Dealer for all applicable Additional Disruption Events.
|
|
Determining Party:
|
Dealer for all applicable Additional Disruption Events.
|
|
Non-Reliance:
|
Applicable
|
|
Agreements and Acknowledgments
|
|
Regarding Hedging Activities:
|
Applicable
|
|
Additional Acknowledgments:
|
Applicable
|
|
3.
|
Calculation Agent
:
|
Dealer;
provided
that all calculations and determinations made by the Calculation Agent shall be made in good faith and in a commercially reasonable manner;
provided further
that, upon receipt of written request from Counterparty, the Calculation Agent shall promptly provide Counterparty with a written explanation describing in reasonable detail any calculation, adjustment or determination made by it (including any quotations, market data or information from internal or external sources used in making such calculation, adjustment or determination, as the case may be, but without disclosing Dealer’s proprietary models or other information that may be proprietary or subject to contractual, legal or regulatory obligations to not disclose such information), and shall use commercially reasonable efforts to provide such written explanation within five Exchange Business Days from the receipt of such request.
|
4.
|
Account Details
:
|
|
Dealer Payment Instructions:
|
|
Account for delivery of Shares to Dealer: To be provided by Dealer
|
|
Counterparty Payment Instructions: To be provided by Counterparty.
|
5.
|
Offices
:
|
6.
|
Notices
: For purposes of this Confirmation:
|
To:
|
Dycom Industries, Inc.
|
Attn:
|
General Counsel
|
Telephone:
|
(561) 627-7171
|
Facsimile:
|
(561) 627-7709
|
To:
|
Goldman, Sachs & Co.
|
|
200 West Street
|
|
New York, NY 10282-2198
|
|
Attn:
|
Bennett Schachter
|
|
Structured Equity Group
|
|
Telephone:
|
212-902-2568
|
|
Facsimile:
|
212-902-3000
|
|
Email:
|
bennett.schachter@gs.com
|
|
With a copy to:
|
|
Attn:
|
Daniel Josephs
|
|
Structured Equity Group
|
|
Telephone:
|
212-902-8193
|
|
Facsimile:
|
917-977-3943
|
|
Email:
|
daniel.josephs@gs.com
|
Share Termination Alternative:
|
If applicable, means that Counterparty shall deliver to Dealer the Share Termination Delivery Property on the date on which the Payment Obligation would otherwise be due pursuant to the Transaction, including, without limitation, pursuant to Section 12.2, 12.3, 12.6, 12.7 or 12.9 of the Equity Definitions or Section 6(d)(ii) of the Agreement,
|
|
as applicable, or such later date or dates as the Calculation Agent may reasonably determine (the “
Share Termination Payment Date
”), in satisfaction of the Payment Obligation.
|
Property:
|
A number of Share Termination Delivery Units, as calculated by the Calculation Agent, equal to the Payment Obligation divided by the Share Termination Unit Price. The Calculation Agent shall adjust the Share Termination Delivery Property by replacing any fractional portion of the aggregate amount of a security therein with an amount of cash in the Settlement Currency equal to the value of such fractional security based on the values used to calculate the Share Termination Unit Price.
|
Share Termination Unit Price:
|
The value of property contained in one Share Termination Delivery Unit on the date such Share Termination Delivery Units are to be delivered as Share Termination Delivery Property, as determined by the Calculation Agent in its discretion by commercially reasonable means and notified by the Calculation Agent to Counterparty at the time of notification of the Payment Obligation.
|
Share Termination Delivery Unit:
|
In the case of a Termination Event, Event of Default, Delisting or Additional Disruption Event, one Share or, in the case of an Insolvency, Nationalization, Merger Event or Tender Offer, one Share or a unit consisting of the number or amount of each type of property received by a holder of one Share (without consideration of any requirement to pay cash or other consideration in lieu of fractional amounts of any securities) in such Insolvency, Nationalization, Merger Event or Tender Offer. If such Insolvency, Nationalization, Merger Event or Tender Offer involves a choice of consideration to be received by holders, such holder shall be deemed to have elected to receive the maximum possible amount of cash.
|
Failure to Deliver:
|
Not Applicable
|
Other Applicable Provisions:
|
If Share Termination Alternative is applicable, the provisions of Sections 9.1(c), 9.8, 9.9, 9.10, 9.11 and 9.12 of the Equity Definitions will be applicable as if “Physical Settlement” applied to the Transaction, except that all references to “Shares” shall be read as references to “Share Termination Delivery Units”;
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 as a result of the fact that Counterparty is the issuer of any Share Termination Delivery Units (or any security forming a part thereof). If, in the reasonable opinion of Counterparty or Dealer, based on advice of counsel, for any reason, any securities comprising the Share Termination Delivery Units deliverable pursuant to this Section 8(a) would not be immediately freely transferable by Dealer under Rule 144 under the Securities Act, then Dealer may elect to either (x) permit delivery of such securities notwithstanding any restriction on transfer or (y) have the provisions set forth in Section 8(b) below apply.
|
Component Number
|
Number of Warrants
|
Expiration Date
|
1
|
21,674
|
12/15/2021
|
2
|
21,674
|
12/16/2021
|
3
|
21,674
|
12/17/2021
|
4
|
21,674
|
12/20/2021
|
5
|
21,674
|
12/21/2021
|
6
|
21,674
|
12/22/2021
|
7
|
21,674
|
12/23/2021
|
8
|
21,674
|
12/27/2021
|
9
|
21,674
|
12/28/2021
|
10
|
21,674
|
12/29/2021
|
11
|
21,674
|
12/30/2021
|
12
|
21,674
|
12/31/2021
|
13
|
21,674
|
1/3/2022
|
14
|
21,674
|
1/4/2022
|
15
|
21,674
|
1/5/2022
|
16
|
21,674
|
1/6/2022
|
17
|
21,674
|
1/7/2022
|
18
|
21,674
|
1/10/2022
|
19
|
21,674
|
1/11/2022
|
20
|
21,674
|
1/12/2022
|
21
|
21,674
|
1/13/2022
|
22
|
21,674
|
1/14/2022
|
23
|
21,674
|
1/18/2022
|
24
|
21,674
|
1/19/2022
|
25
|
21,674
|
1/20/2022
|
26
|
21,674
|
1/21/2022
|
27
|
21,674
|
1/24/2022
|
28
|
21,674
|
1/25/2022
|
29
|
21,674
|
1/26/2022
|
30
|
21,674
|
1/27/2022
|
31
|
21,674
|
1/28/2022
|
32
|
21,674
|
1/31/2022
|
33
|
21,674
|
2/1/2022
|
34
|
21,674
|
2/2/2022
|
35
|
21,674
|
2/3/2022
|
36
|
21,674
|
2/4/2022
|
37
|
21,674
|
2/7/2022
|
38
|
21,674
|
2/8/2022
|
39
|
21,674
|
2/9/2022
|
40
|
21,674
|
2/10/2022
|
41
|
21,674
|
2/11/2022
|
42
|
21,674
|
2/14/2022
|
43
|
21,674
|
2/15/2022
|
44
|
21,674
|
2/16/2022
|
45
|
21,674
|
2/17/2022
|
46
|
21,674
|
2/18/2022
|
47
|
21,674
|
2/22/2022
|
48
|
21,674
|
2/23/2022
|
49
|
21,674
|
2/24/2022
|
50
|
21,674
|
2/25/2022
|
51
|
21,674
|
2/28/2022
|
52
|
21,674
|
3/1/2022
|
53
|
21,674
|
3/2/2022
|
54
|
21,674
|
3/3/2022
|
55
|
21,674
|
3/4/2022
|
56
|
21,674
|
3/7/2022
|
57
|
21,674
|
3/8/2022
|
58
|
21,674
|
3/9/2022
|
59
|
21,674
|
3/10/2022
|
60
|
21,674
|
3/11/2022
|
61
|
21,674
|
3/14/2022
|
62
|
21,674
|
3/15/2022
|
63
|
21,674
|
3/16/2022
|
64
|
21,674
|
3/17/2022
|
65
|
21,674
|
3/18/2022
|
66
|
21,674
|
3/21/2022
|
67
|
21,674
|
3/22/2022
|
68
|
21,674
|
3/23/2022
|
69
|
21,674
|
3/24/2022
|
70
|
21,675
|
3/25/2022
|
71
|
21,675
|
3/28/2022
|
72
|
21,675
|
3/29/2022
|
73
|
21,675
|
3/30/2022
|
74
|
21,675
|
3/31/2022
|
75
|
21,675
|
4/1/2022
|
76
|
21,675
|
4/4/2022
|
77
|
21,675
|
4/5/2022
|
78
|
21,675
|
4/6/2022
|
79
|
21,675
|
4/7/2022
|
80
|
21,675
|
4/8/2022
|
81
|
21,675
|
4/11/2022
|
82
|
21,675
|
4/12/2022
|
83
|
21,675
|
4/13/2022
|
84
|
21,675
|
4/14/2022
|
85
|
21,675
|
4/18/2022
|
86
|
21,675
|
4/19/2022
|
87
|
21,675
|
4/20/2022
|
88
|
21,675
|
4/21/2022
|
89
|
21,675
|
4/22/2022
|
90
|
21,675
|
4/25/2022
|
91
|
21,675
|
4/26/2022
|
92
|
21,675
|
4/27/2022
|
93
|
21,675
|
4/28/2022
|
94
|
21,675
|
4/29/2022
|
95
|
21,675
|
5/2/2022
|
96
|
21,675
|
5/3/2022
|
97
|
21,675
|
5/4/2022
|
98
|
21,675
|
5/5/2022
|
99
|
21,675
|
5/6/2022
|
100
|
21,675
|
5/9/2022
|
To:
|
Dycom Industries, Inc.
|
|
11780 U.S. Highway 1, Suite 600
|
|
Palm Beach Gardens, Florida 33408
|
From:
|
Bank of America, N.A.
|
Re:
|
Base Issuer Warrant Transaction
|
Date:
|
September 9, 2015
|
|
Trade Date:
|
September 9, 2015
|
|
Effective Date:
|
September 15, 2015, or such other date as agreed between the parties, subject to Section 8(k) below
|
|
Components:
|
The Transaction will be divided into individual Components, each with the terms set forth in this Confirmation, and, in particular, with the Number of Warrants and Expiration Date set forth in this Confirmation. The payments and deliveries to be made upon settlement of the Transaction will be determined separately for each Component as if each Component were a separate Transaction under the Agreement.
|
|
Warrant Style:
|
European
|
|
Warrant Type:
|
Call
|
|
Seller:
|
Counterparty
|
|
Buyer:
|
Dealer
|
|
Shares:
|
The Common Stock of Counterparty, par value USD
0.33 1/3
(Ticker Symbol: “DY”).
|
|
Number of Warrants:
|
For each Component, as provided in Annex A to this Confirmation.
|
|
Warrant Entitlement:
|
One Share per Warrant
|
|
Strike Price:
|
USD130.4275
|
|
Notwithstanding anything to the contrary in the Agreement, this Confirmation or the Equity Definitions, in no event shall the Strike Price be subject to adjustment to the extent that, after giving effect to such adjustment, the Strike Price would be less than USD74.53, except for any adjustment pursuant to the terms of this Confirmation and the Equity Definitions in connection with stock splits or similar changes to Counterparty’s capitalization.
|
|
Number of Shares:
|
As of any date, a number of Shares equal to the product of the Number of Warrants and the Warrant Entitlement.
|
|
Premium:
|
USD19,404,000.00
|
|
Premium Payment Date:
|
The Effective Date
|
|
Exchange:
|
New York Stock Exchange
|
|
Related Exchange:
|
All Exchanges
|
|
Expiration Time:
|
Valuation Time
|
|
Expiration Date:
|
As provided in
Annex A
to this Confirmation (or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day that is not already an Expiration Date for another Component);
provided
that if that date is a Disrupted Day, the Expiration Date for such Component shall be the first succeeding Scheduled Trading Day that is not a Disrupted Day and is not or is not deemed to be an Expiration Date in respect of any other Component of the Transaction hereunder; and
provided further
that if the Expiration Date has not occurred pursuant to the preceding proviso as of the Final Disruption Date, the Calculation Agent shall have the right to elect, in its sole discretion, that the Final Disruption Date shall be the Expiration Date (irrespective of whether such date is an Expiration Date in respect of any other Component for the Transaction). Notwithstanding the foregoing and anything to the contrary in the Equity Definitions, if a Market Disruption Event occurs on any Expiration Date, the Calculation Agent may determine that such Expiration Date is a Disrupted Day only in part, in which case the Calculation Agent shall make adjustments to the Number of Warrants for the relevant Component for which such day shall be the Expiration Date, shall designate the Scheduled Trading Day determined in the manner described in the immediately preceding sentence as the Expiration Date for the remaining Warrants for such Component and may determine the VWAP Price based on transactions in the Shares effected before the relevant Market Disruption Event occurred and/or after the relevant Market Disruption Event ended. Any Scheduled Trading Day on which, as of the date hereof, the Exchange is scheduled to close prior to its normal close of trading shall be deemed not to be a Scheduled Trading Day; if a closure of the Exchange prior to its normal close of trading on any Scheduled Trading Day is scheduled following the date hereof, then such Scheduled Trading Day shall be deemed to be a Disrupted Day in full
.
Section 6.6 of the Equity Definitions shall not apply to any Valuation Date occurring on an
|
|
Expiration Date. “
Final Disruption Date
” means May 19, 2022.
|
|
Market Disruption Event:
|
Section 6.3(a) of the Equity Definitions is hereby amended by (A) deleting the words “during the one hour period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be,” in clause (ii) thereof and (B) by replacing the words “or (iii) an Early Closure.” therein with “(iii) an Early Closure, or (iv) a Regulatory Disruption that Dealer has elected, by notice to Counterparty, to deem to be a Market Disruption Event.”
|
|
Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the term “Scheduled Closing Time” in the fourth line thereof.
|
|
Regulatory Disruption:
|
Any event that Dealer, in its good faith and reasonable discretion (based on advice of counsel), determines makes it appropriate, with regard to (x) any legal, regulatory or self-regulatory requirements or (y) related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer generally applicable in similar situations and applied in a non-discriminatory manner), for Dealer to refrain from or decrease any market activity in connection with the Transaction. If Dealer determines in good faith that a Market Disruption Event has occurred on any Scheduled Trading Day solely pursuant to clause (y) above and solely with respect to voluntarily adopted policies and procedures, such Scheduled Trading Day will be a Disrupted Day in full.
|
|
Automatic Exercise:
|
Applicable; and means that the Number of Warrants for the corresponding Expiration Date will be deemed to be automatically exercised at the Expiration Time on such Expiration Date unless Dealer notifies Seller (by telephone or in writing) prior to the Expiration Time on such Expiration Date that it does not wish Automatic Exercise to occur, in which case Automatic Exercise will not apply to such Expiration Date.
|
|
Giving Notice:
|
As provided in Section 6(a) below.
|
|
Settlement Currency:
|
USD
|
|
Net Share Settlement:
|
On each Settlement Date, Counterparty shall deliver to Dealer a number of Shares equal to the Number of
|
|
|
Shares to be Delivered for such Settlement Date to the account specified by Dealer and cash in lieu of any fractional Share valued at the Relevant Price on the Valuation Date corresponding to such Settlement Date. If, in the reasonable opinion of Counterparty or Dealer, based on advice of counsel, for any reason, the Shares deliverable upon Net Share Settlement would not be immediately freely transferable by Dealer under Rule 144 under the Securities Act of 1933, as amended (the “
Securities Act
”), then Dealer may elect to either (x) accept delivery of such Shares notwithstanding any restriction on transfer or (y) accept delivery of such Shares subject to a discount and have the provisions set forth in Section 8(b) below apply.
|
|
The Number of Shares to be Delivered shall be delivered by Counterparty to Dealer no later than 12:00 noon (local time in New York City) on the relevant Settlement Date.
|
Number of Shares to be Delivered:
|
In respect of any Exercise Date, subject to the last sentence of Section 9.5 of the Equity Definitions, the product of (i) the number of Warrants exercised or deemed exercised on such Exercise Date, (ii) the Warrant Entitlement and (iii) (A) the excess of the VWAP Price on the Valuation Date occurring in respect of such Exercise Date over the Strike Price (or, if there is no such excess, zero)
divided by
(B) such VWAP Price.
|
|
VWAP Price:
|
For any Exchange Business Day, as determined by the Calculation Agent based on the New York Volume Weighted Average Price per Share for the regular trading session (including any extensions thereof)
of the Exchange on such Exchange Business Day (without regard to pre-open or after hours trading outside of such regular trading session), as published by Bloomberg at 4:15 P.M., New York City time (or 15 minutes following the end of any extension of the regular trading session), on such Exchange Business Day,
on Bloomberg page “DY.N <Equity> AQR” (or any successor thereto)
(or if such published volume weighted average price is unavailable or is manifestly incorrect, the market value of one Share on such Exchange Business Day,
as determined by the Calculation Agent using a volume weighted method)
.
|
|
Other Applicable Provisions:
|
The provisions of Sections 9.1(c), 9.4, 9.8, 9.9, 9.10, 9.11 and 9.12 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
|
|
Method of Adjustment:
|
Calculation Agent Adjustment;
provided
that in respect of an Extraordinary Dividend, “Calculation Agent Adjustment” shall be as described in the provision below. For the avoidance of doubt, Calculation Agent Adjustment (including, without limitation, in respect of Extraordinary Dividends) shall continue to apply until the obligations of the parties (including any obligations of Counterparty pursuant to Section 8(e) below) under the Transaction have been satisfied in full.
|
|
Extraordinary Dividend:
|
Any cash dividend or distribution on the Shares with an ex-dividend date occurring on or after the Trade Date and on or prior to the Expiration Date for the Component with the latest Expiration Date (or, if any Deficit Shares are owed pursuant to Section 8(e) below, such later date on which Counterparty’s obligations under this Transaction have been satisfied in full).
|
Extraordinary Dividend Adjustment:
|
If at any time during the period from and including the Trade Date, to and including the Expiration Date for the Component with the latest Expiration Date
|
|
(or, if any Deficit Shares are owed pursuant to Section 8(e) below, such later date on which Counterparty’s obligations under this Transaction have been satisfied in full), an ex-dividend date for an Extraordinary Dividend occurs or is deemed to occur, then the Calculation Agent will make adjustments to any one or more of the Strike Price, the Number of Warrants, the Warrant Entitlement and/or any other variable relevant to the exercise, settlement, payment or other terms of the Transaction as it determines appropriate, in its commercially reasonable discretion, to account for the economic effect on the Transaction of such Extraordinary Dividend.
|
|
New Shares:
|
In the definition of New Shares in Section 12.1(i) of the Equity Definitions, the text in clause (i) thereof shall be deleted in its entirety and replaced with “publicly quoted, traded or listed on any of The New York Stock Exchange, The NASDAQ Global Market or The NASDAQ Global Select Market (or their respective successors) and of a corporation that is organized under the laws of the United States, any State thereof or the District of Columbia”.
|
|
Merger Event:
|
Applicable;
provided
that if an event occurs that constitutes both a Merger Event under Section
|
|
|
12.1(b) of the Equity Definitions and an Additional Termination Event under Section 8(j)(iv) of this Confirmation,
Dealer may elect, in its commercially reasonable judgment, whether the provisions of Section 12.2 of the Equity Definitions or Section
8(j)(iv)
will apply
.
|
|
(a) Share-for-Share:
|
Modified Calculation Agent Adjustment
|
|
(b) Share-for-Other:
|
Cancellation and Payment (Calculation Agent Determination)
|
|
(c) Share-for-Combined:
|
Cancellation and Payment (Calculation Agent Determination);
provided
that the Calculation Agent may elect Component Adjustment for all or part of the Transaction.
|
|
Tender Offer:
|
Applicable;
provided
that if an event occurs that constitutes both a Tender Offer under Section 12.1(d) of the Equity Definitions and an Additional Termination Event under Section 8(j)(iii) of this Confirmation,
Dealer may elect, in its commercially reasonable judgment, whether the provisions of Section 12.3 of the Equity Definitions or Section
8(j)(iii)
will apply
.
|
|
(a) Share-for-Share:
|
Modified Calculation Agent Adjustment
|
|
(b) Share-for-Other:
|
Modified Calculation Agent Adjustment
|
|
(c) Share-for-Combined:
|
Modified Calculation Agent Adjustment
|
Consequences of Announcement Events:
|
Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions;
provided
that, in respect of an Announcement Event, references to “Tender Offer” shall be replaced by references to “Announcement Event” and references to “Tender Offer Date” shall be replaced by references to “date of such Announcement Event”. An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, to which Article 12 of the Equity Definitions is applicable.
|
|
Announcement Event:
|
(i) The public announcement of any Merger Event or Tender Offer, the intention to enter into a Merger Event or Tender Offer or any transaction or event that, if completed, would constitute a Merger Event or Tender Offer, (ii) the public announcement by Counterparty or any of its subsidiaries of any acquisition where the aggregate consideration exceeds 15% of the market capitalization of Counterparty as of the date of such announcement (an “
Acquisition Transaction
”), (iii) the public announcement by Counterparty of an intention to solicit or enter into, or to explore strategic alternatives or other similar undertaking that may
|
|
include, a Merger Event, Tender Offer or Acquisition Transaction or (iv) any subsequent public announcement 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, whether such announcement is made by Counterparty or a third party);
provided
that, 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.
|
|
Announcement Date:
|
The definition of “Announcement Date” in Section 12.1 of the Equity Definitions is hereby amended by (i) replacing the words “a firm” with the word “any” in the second and fourth lines thereof, (ii) replacing the word “leads to the” with the words “, if completed, would lead to a” in the third and the fifth lines thereof, (iii) replacing the words “voting shares” with the word “Shares” in the fifth line thereof, and (iv) inserting the words “by any entity” after the word “announcement” in the second and the fourth lines thereof.
|
|
Agent Adjustment:
|
If, in respect of a Merger Event, the Counterparty under the Transaction following such Merger Event will not be the issuer of the New Shares, the Dealer may elect (in its sole discretion) for Cancellation and Payment (Calculation Agent Determination) to apply. In addition, if, in respect of any Merger Event to which Modified Calculation Agent Adjustment applies, the adjustments to be made in accordance with Section 12.2(e)(i) of the Equity Definitions would result in Counterparty being different from the issuer of the Shares, then with respect to such Merger Event, as a condition precedent to the adjustments contemplated in Section 12.2(e)(i) of the Equity Definitions, Counterparty and the issuer of the Shares shall, prior to the Merger Date, have entered into such documentation containing representations, warranties and agreements relating to securities law and other issues as requested by Dealer that Dealer has determined, in its reasonable discretion, to be reasonably necessary or appropriate to allow Dealer to continue as a party to the Transaction, as adjusted under Section 12.2(e)(i) of the Equity Definitions, and to preserve its hedging or hedge unwind activities in connection with the Transaction in a manner compliant with applicable legal, regulatory or self-regulatory requirements, or with related policies
|
|
|
and procedures applicable to Dealer (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer), and if such conditions are not met or if the Calculation Agent determines that no adjustment that it could make under Section 12.2(e)(i) of the Equity Definitions will produce a commercially reasonable result, then the consequences set forth in Section 12.2(e)(ii) of the Equity Definitions shall apply.
|
|
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 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 such exchange or quotation system, such exchange or quotation system shall thereafter be deemed to be the Exchange.
|
|
Additional Termination Event(s):
|
Notwithstanding anything to the contrary in the Equity Definitions, if, as a result of an Extraordinary Event, any Transaction would be cancelled or terminated (whether in whole or in part) pursuant to
|
|
(a) Change in Law:
|
Applicable; provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the phrase “the interpretation” in the third line thereof with the phrase “, or public announcement of, the formal or informal interpretation”, (ii) by adding the phrase “and/or Hedge Position” after the word “Shares” in clause (X) thereof and (iii) by immediately following the word “Transaction” in clause (X) thereof, adding the phrase “in the manner contemplated by the Hedging Party on the Trade Date”; provided, further that (i) any determination as to whether (A) the adoption of or any change in any applicable law or regulation (including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute) or (B) the promulgation of or any change in the interpretation by any court, tribunal or regulatory authority with competent jurisdiction of any applicable law or regulation (including any action taken by a taxing authority), in each case, constitutes a “Change in Law” shall be made without regard to Section 739 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 or any similar legal certainty provision in any legislation enacted, or rule or regulation promulgated, on or after the Trade Date, and (ii) Section 12.9(a)(ii) of the Equity Definitions is hereby amended by replacing the parenthetical beginning after the word “regulation” in the second line thereof with the phrase “(including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute)”.
|
|
(b) Failure to Deliver:
|
Not Applicable
|
|
(c) Insolvency Filing:
|
Applicable
|
|
(d) Hedging Disruption:
|
Applicable;
provided
that
|
|
(i)
|
Section 12.9(a)(v) of the Equity Definitions is hereby modified by:
|
|
(a)
|
inserting the following words at the end of clause (A) thereof: “in the manner
|
|
(b)
|
inserting the following two phrases at the end of such Section:
|
|
“For the avoidance of doubt, the term “equity price risk” shall be deemed to include, but shall not be limited to, stock price and volatility risk. And, for the further avoidance of doubt, the transactions or assets referred to in phrases (A) or (B) above must be available on commercially reasonable pricing and other terms.”;
|
|
(ii)
|
Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line thereof, after the words “to terminate the Transaction”, the words “or a portion of the Transaction affected by such Hedging Disruption”.
|
|
(e) Increased Cost of Hedging:
|
Applicable
|
|
(f) Loss of Stock Borrow:
|
Applicable
|
|
Maximum Stock Loan Rate:
|
200 basis points per annum
|
|
(g) Increased Cost of Stock Borrow:
|
Applicable
|
|
Initial Stock Loan Rate:
|
Prior to September 16, 2021, zero basis points per annum, and thereafter, 25 basis points per annum.
|
|
Hedging Party:
|
Dealer for all applicable Additional Disruption Events.
|
|
Determining Party:
|
Dealer for all applicable Additional Disruption Events.
|
|
Non-Reliance:
|
Applicable
|
|
Regarding Hedging Activities:
|
Applicable
|
|
Additional Acknowledgments:
|
Applicable
|
|
3.
Calculation Agent
:
|
Dealer;
provided
that all calculations and determinations made by the Calculation Agent shall be made in good faith and in a commercially reasonable manner;
provided further
that, upon receipt of written request from Counterparty, the Calculation Agent shall promptly provide Counterparty with a written explanation describing in reasonable detail any calculation, adjustment or determination made by it (including any quotations, market data or information from internal or external sources used in making such calculation, adjustment or determination, as the case may be, but without disclosing Dealer’s proprietary models or other information that may be proprietary or subject to contractual, legal or regulatory obligations to not disclose such information), and shall use commercially reasonable efforts to provide such written explanation within five Exchange Business Days from the receipt of such request.
|
|
(a)
|
Address for notices or communications to Counterparty:
|
|
To:
|
Dycom Industries, Inc.
|
|
11780 U.S. Highway 1, Suite 600
|
|
Palm Beach Gardens, FL 33408
|
|
Attn:
|
General Counsel
|
|
Telephone:
|
(561) 627-7171
|
|
Facsimile:
|
(561) 627-7709
|
|
(b)
|
Address for notices or communications to Dealer:
|
|
To:
|
Bank of America, N.A.
|
|
c/o Merrill Lynch, Pierce, Fenner & Smith Incorporated
|
|
One Bryant Park
|
|
New York, NY 10036
|
|
Attn:
|
Peter Tucker, Assistant General Counsel
|
|
Telephone:
|
646-855-5821
|
|
Facsimile:
|
646-822-5633
|
Share Termination Alternative:
|
If applicable, means that Counterparty shall deliver to Dealer the Share Termination Delivery Property on the date on which the Payment Obligation would otherwise be due pursuant to the Transaction, including, without limitation, pursuant to Section 12.2, 12.3, 12.6, 12.7 or 12.9 of the Equity Definitions or Section 6(d)(ii) of the Agreement, as applicable, or such later date or dates as the Calculation Agent may reasonably determine (the “
Share Termination Payment Date
”), in satisfaction of the Payment Obligation.
|
Property:
|
A number of Share Termination Delivery Units, as calculated by the Calculation Agent, equal to the Payment Obligation divided by the Share Termination Unit Price. The Calculation Agent shall adjust the
|
|
Share Termination Delivery Property by replacing any fractional portion of the aggregate amount of a security therein with an amount of cash in the Settlement Currency equal to the value of such fractional security based on the values used to calculate the Share Termination Unit Price.
|
Share Termination Unit Price:
|
The value of property contained in one Share Termination Delivery Unit on the date such Share Termination Delivery Units are to be delivered as Share Termination Delivery Property, as determined by the Calculation Agent in its discretion by commercially reasonable means and notified by the Calculation Agent to Counterparty at the time of notification of the Payment Obligation.
|
Share Termination Delivery Unit:
|
In the case of a Termination Event, Event of Default, Delisting or Additional Disruption Event, one Share or, in the case of an Insolvency, Nationalization, Merger Event or Tender Offer, one Share or a unit consisting of the number or amount of each type of property received by a holder of one Share (without consideration of any requirement to pay cash or other consideration in lieu of fractional amounts of any securities) in such Insolvency, Nationalization, Merger Event or Tender Offer. If such Insolvency, Nationalization, Merger Event or Tender Offer involves a choice of consideration to be received by holders, such holder shall be deemed to have elected to receive the maximum possible amount of cash.
|
Failure to Deliver:
|
Not Applicable
|
Other Applicable Provisions:
|
If Share Termination Alternative is applicable, the provisions of Sections 9.1(c), 9.8, 9.9, 9.10, 9.11 and 9.12 of the Equity Definitions will be applicable as if “Physical Settlement” applied to the Transaction, except that all references to “Shares” shall be read as references to “Share Termination Delivery Units”;
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 as a result of the fact that Counterparty is the issuer of any Share Termination Delivery Units (or any security forming a part thereof). If, in the reasonable opinion of Counterparty or Dealer, based on advice of counsel, for any reason, any securities comprising the Share Termination Delivery Units deliverable pursuant to this Section 8(a) would not be immediately freely transferable by Dealer under Rule 144 under the Securities Act, then Dealer may elect to either (x) permit delivery of such securities notwithstanding any restriction on transfer or (y) have the provisions set forth in Section 8(b) below apply.
|
Yours faithfully, | ||||
BANK OF AMERICA, N.A. | ||||
By: | /s/ Christopher A. Hutmaker | |||
Name: | Christopher A. Hutmaker | |||
Title: | Managing Director | |||
Agreed and Accepted By: | |||
DYCOM INDUSTRIES, INC. | |||
By: | /s/ H. Andrew DeFerrari | ||
Name: | H. Andrew DeFerrari | ||
Title: | Senior Vice President & Chief Financial Officer | ||
Component Number
|
Number of Warrants
|
Expiration Date
|
||
1
|
13,004
|
12/15/2021
|
||
2
|
13,004
|
12/16/2021
|
||
3
|
13,004
|
12/17/2021
|
||
4
|
13,004
|
12/20/2021
|
||
5
|
13,004
|
12/21/2021
|
||
6
|
13,004
|
12/22/2021
|
||
7
|
13,004
|
12/23/2021
|
||
8
|
13,004
|
12/27/2021
|
||
9
|
13,004
|
12/28/2021
|
||
10
|
13,004
|
12/29/2021
|
||
11
|
13,004
|
12/30/2021
|
||
12
|
13,004
|
12/31/2021
|
||
13
|
13,004
|
1/3/2022
|
||
14
|
13,004
|
1/4/2022
|
||
15
|
13,004
|
1/5/2022
|
||
16
|
13,004
|
1/6/2022
|
||
17
|
13,004
|
1/7/2022
|
||
18
|
13,004
|
1/10/2022
|
||
19
|
13,004
|
1/11/2022
|
||
20
|
13,004
|
1/12/2022
|
||
21
|
13,004
|
1/13/2022
|
||
22
|
13,004
|
1/14/2022
|
||
23
|
13,004
|
1/18/2022
|
||
24
|
13,004
|
1/19/2022
|
||
25
|
13,004
|
1/20/2022
|
||
26
|
13,004
|
1/21/2022
|
||
27
|
13,004
|
1/24/2022
|
||
28
|
13,004
|
1/25/2022
|
||
29
|
13,004
|
1/26/2022
|
||
30
|
13,004
|
1/27/2022
|
||
31
|
13,004
|
1/28/2022
|
||
32
|
13,004
|
1/31/2022
|
||
33
|
13,004
|
2/1/2022
|
||
34
|
13,004
|
2/2/2022
|
||
35
|
13,004
|
2/3/2022
|
||
36
|
13,004
|
2/4/2022
|
||
37
|
13,004
|
2/7/2022
|
||
38
|
13,004
|
2/8/2022
|
||
39
|
13,004
|
2/9/2022
|
||
40
|
13,004
|
2/10/2022
|
||
41
|
13,004
|
2/11/2022
|
||
42
|
13,005
|
2/14/2022
|
||
43
|
13,005
|
2/15/2022
|
||
44
|
13,005
|
2/16/2022
|
||
45
|
13,005
|
2/17/2022
|
||
46
|
13,005
|
2/18/2022
|
47
|
13,005
|
2/22/2022
|
||
48
|
13,005
|
2/23/2022
|
||
49
|
13,005
|
2/24/2022
|
||
50
|
13,005
|
2/25/2022
|
||
51
|
13,005
|
2/28/2022
|
||
52
|
13,005
|
3/1/2022
|
||
53
|
13,005
|
3/2/2022
|
||
54
|
13,005
|
3/3/2022
|
||
55
|
13,005
|
3/4/2022
|
||
56
|
13,005
|
3/7/2022
|
||
57
|
13,005
|
3/8/2022
|
||
58
|
13,005
|
3/9/2022
|
||
59
|
13,005
|
3/10/2022
|
||
60
|
13,005
|
3/11/2022
|
||
61
|
13,005
|
3/14/2022
|
||
62
|
13,005
|
3/15/2022
|
||
63
|
13,005
|
3/16/2022
|
||
64
|
13,005
|
3/17/2022
|
||
65
|
13,005
|
3/18/2022
|
||
66
|
13,005
|
3/21/2022
|
||
67
|
13,005
|
3/22/2022
|
||
68
|
13,005
|
3/23/2022
|
||
69
|
13,005
|
3/24/2022
|
||
70
|
13,005
|
3/25/2022
|
||
71
|
13,005
|
3/28/2022
|
||
72
|
13,005
|
3/29/2022
|
||
73
|
13,005
|
3/30/2022
|
||
74
|
13,005
|
3/31/2022
|
||
75
|
13,005
|
4/1/2022
|
||
76
|
13,005
|
4/4/2022
|
||
77
|
13,005
|
4/5/2022
|
||
78
|
13,005
|
4/6/2022
|
||
79
|
13,005
|
4/7/2022
|
||
80
|
13,005
|
4/8/2022
|
||
81
|
13,005
|
4/11/2022
|
||
82
|
13,005
|
4/12/2022
|
||
83
|
13,005
|
4/13/2022
|
||
84
|
13,005
|
4/14/2022
|
||
85
|
13,005
|
4/18/2022
|
||
86
|
13,005
|
4/19/2022
|
||
87
|
13,005
|
4/20/2022
|
||
88
|
13,005
|
4/21/2022
|
||
89
|
13,005
|
4/22/2022
|
||
90
|
13,005
|
4/25/2022
|
||
91
|
13,005
|
4/26/2022
|
||
92
|
13,005
|
4/27/2022
|
||
93
|
13,005
|
4/28/2022
|
||
94
|
13,005
|
4/29/2022
|
||
95
|
13,005
|
5/2/2022
|
||
96
|
13,005
|
5/3/2022
|
||
97
|
13,005
|
5/4/2022
|
||
98
|
13,005
|
5/5/2022
|
||
99
|
13,005
|
5/6/2022
|
100
|
13,005
|
5/9/2022
|
To:
|
Dycom Industries, Inc.
11780 U.S. Highway 1, Suite 600
Palm Beach Gardens, Florida 33408
|
From:
|
|
Re:
|
Base Issuer Warrant Transaction
|
Date:
|
|
Trade Date:
|
September 9, 2015
|
|
Effective Date:
|
September 15, 2015, or such other date as agreed between the parties, subject to Section 8(k) below
|
|
Components:
|
The Transaction will be divided into individual Components, each with the terms set forth in this Confirmation, and, in particular, with the Number of Warrants and Expiration Date set forth in this Confirmation. The payments and deliveries to be made upon settlement of the Transaction will be determined separately for each Component as if each Component were a separate Transaction under the Agreement.
|
|
Warrant Style:
|
European
|
|
Warrant Type:
|
Call
|
|
Seller:
|
Counterparty
|
|
Buyer:
|
Dealer
|
|
Shares:
|
The Common Stock of Counterparty, par value USD
0.33 1/3
(Ticker Symbol: “DY”).
|
|
Number of Warrants:
|
For each Component, as provided in Annex A to this Confirmation.
|
|
Warrant Entitlement:
|
One Share per Warrant
|
|
Strike Price:
|
USD130.4275
|
|
Notwithstanding anything to the contrary in the Agreement, this Confirmation or the Equity Definitions, in no event shall the Strike Price be subject to adjustment to the extent that, after giving effect to such adjustment, the Strike Price would be less than USD 74.53, except for any adjustment pursuant to the terms of this Confirmation and the Equity Definitions in connection with stock splits or similar changes to Counterparty’s capitalization.
|
|
Number of Shares:
|
As of any date, a number of Shares equal to the product of the Number of Warrants and the Warrant Entitlement.
|
|
Premium:
|
USD12,936,000.00
|
|
Premium Payment Date:
|
The Effective Date
|
|
Exchange:
|
New York Stock Exchange
|
|
Related Exchange:
|
All Exchanges
|
|
In respect of any Component:
|
|
Expiration Time:
|
Valuation Time
|
|
Expiration Date:
|
As provided in
Annex A
to this Confirmation (or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day that is not already an Expiration Date for another Component);
provided
that if that date is a Disrupted Day, the Expiration Date for such Component shall be the first succeeding Scheduled Trading Day that is not a Disrupted Day and is not or is not deemed to be an Expiration Date in respect of any other Component of the Transaction hereunder; and
provided further
that if the Expiration Date has not occurred pursuant to the preceding proviso as of the Final Disruption Date, the Calculation Agent shall have the right to elect, in its sole discretion, that the Final Disruption Date shall be the Expiration Date (irrespective of whether such date is an Expiration Date in respect of any other Component for the Transaction). Notwithstanding the foregoing and anything to the contrary in the Equity Definitions, if a Market Disruption Event occurs on any Expiration Date, the Calculation Agent may determine that such Expiration Date is a Disrupted Day only in part, in which case the Calculation Agent shall make adjustments to the Number of Warrants for the relevant Component for which such day shall be the Expiration Date, shall designate the Scheduled Trading Day determined in the manner described in the immediately preceding sentence as the Expiration Date for the remaining Warrants for such Component and may determine the VWAP Price based on transactions in the Shares effected before the relevant Market Disruption Event occurred and/or after the relevant Market Disruption Event ended. Any Scheduled Trading Day on which, as of the date hereof, the Exchange is scheduled to close prior to its normal close of trading shall be deemed not to be a Scheduled Trading Day; if a closure of the Exchange prior to its normal close of trading on any Scheduled Trading Day is scheduled following the date hereof, then such Scheduled Trading Day shall be deemed to be a Disrupted Day in full
.
Section 6.6 of the Equity Definitions shall not apply to any Valuation Date occurring on an
|
|
Expiration Date. “
Final Disruption Date
” means May 19, 2022.
|
|
Market Disruption Event:
|
Section 6.3(a) of the Equity Definitions is hereby amended by (A) deleting the words “during the one hour period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be,” in clause (ii) thereof and (B) by replacing the words “or (iii) an Early Closure.” therein with “(iii) an Early Closure, or (iv) a Regulatory Disruption that Dealer has elected, by notice to Counterparty, to deem to be a Market Disruption Event.”
|
|
Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the term “Scheduled Closing Time” in the fourth line thereof.
|
|
Regulatory Disruption:
|
Any event that Dealer, in its good faith and reasonable discretion (based on advice of counsel), determines makes it appropriate, with regard to (x) any legal, regulatory or self-regulatory requirements or (y) related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer generally applicable in similar situations and applied in a non-discriminatory manner), for Dealer to refrain from or decrease any market activity in connection with the Transaction. If Dealer determines in good faith that a Market Disruption Event has occurred on any Scheduled Trading Day solely pursuant to clause (y) above and solely with respect to voluntarily adopted policies and procedures, such Scheduled Trading Day will be a Disrupted Day in full.
|
|
Automatic Exercise:
|
Applicable; and means that the Number of Warrants for the corresponding Expiration Date will be deemed to be automatically exercised at the Expiration Time on such Expiration Date unless Dealer notifies Seller (by telephone or in writing) prior to the Expiration Time on such Expiration Date that it does not wish Automatic Exercise to occur, in which case Automatic Exercise will not apply to such Expiration Date.
|
|
Counterparty’s Telephone Number
|
|
and Telex and/or Facsimile Number
|
|
and Contact Details for purpose of
|
|
Giving Notice:
|
As provided in Section 6(a) below.
|
|
In respect of any Component:
|
|
Settlement Currency:
|
USD
|
|
Net Share Settlement:
|
On each Settlement Date, Counterparty shall deliver to Dealer a number of Shares equal to the Number of
|
|
|
Shares to be Delivered for such Settlement Date to the account specified by Dealer and cash in lieu of any fractional Share valued at the Relevant Price on the Valuation Date corresponding to such Settlement Date. If, in the reasonable opinion of Counterparty or Dealer, based on advice of counsel, for any reason, the Shares deliverable upon Net Share Settlement would not be immediately freely transferable by Dealer under Rule 144 under the Securities Act of 1933, as amended (the “
Securities Act
”), then Dealer may elect to either (x) accept delivery of such Shares notwithstanding any restriction on transfer or (y) accept delivery of such Shares subject to a discount and have the provisions set forth in Section 8(b) below apply.
|
|
The Number of Shares to be Delivered shall be delivered by Counterparty to Dealer no later than 12:00 noon (local time in New York City) on the relevant Settlement Date.
|
Number of Shares to be Delivered:
|
In respect of any Exercise Date, subject to the last sentence of Section 9.5 of the Equity Definitions, the product of (i) the number of Warrants exercised or deemed exercised on such Exercise Date, (ii) the Warrant Entitlement and (iii) (A) the excess of the VWAP Price on the Valuation Date occurring in respect of such Exercise Date over the Strike Price (or, if there is no such excess, zero)
divided by
(B) such VWAP Price.
|
|
VWAP Price:
|
For any Exchange Business Day, as determined by the Calculation Agent based on the New York Volume Weighted Average Price per Share for the regular trading session (including any extensions thereof)
of the Exchange on such Exchange Business Day (without regard to pre-open or after hours trading outside of such regular trading session), as published by Bloomberg at 4:15 P.M., New York City time (or 15 minutes following the end of any extension of the regular trading session), on such Exchange Business Day,
on Bloomberg page “DY.N <Equity> AQR” (or any successor thereto)
(or if such published volume weighted average price is unavailable or is manifestly incorrect, the market value of one Share on such Exchange Business Day,
as determined by the Calculation Agent using a volume weighted method)
.
|
|
Other Applicable Provisions:
|
The provisions of Sections 9.1(c), 9.4, 9.8, 9.9, 9.10, 9.11 and 9.12 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.
|
|
In respect of any Component:
|
|
Method of Adjustment:
|
Calculation Agent Adjustment;
provided
that in respect of an Extraordinary Dividend, “Calculation Agent Adjustment” shall be as described in the provision below. For the avoidance of doubt, Calculation Agent Adjustment (including, without limitation, in respect of Extraordinary Dividends) shall continue to apply until the obligations of the parties (including any obligations of Counterparty pursuant to Section 8(e) below) under the Transaction have been satisfied in full.
|
|
Extraordinary Dividend:
|
Any cash dividend or distribution on the Shares with an ex-dividend date occurring on or after the Trade Date and on or prior to the Expiration Date for the Component with the latest Expiration Date (or, if any Deficit Shares are owed pursuant to Section 8(e) below, such later date on which Counterparty’s obligations under this Transaction have been satisfied in full).
|
Extraordinary Dividend Adjustment:
|
If at any time during the period from and including the Trade Date, to and including the Expiration Date for the Component with the latest Expiration Date
|
|
(or, if any Deficit Shares are owed pursuant to Section 8(e) below, such later date on which Counterparty’s obligations under this Transaction have been satisfied in full), an ex-dividend date for an Extraordinary Dividend occurs or is deemed to occur, then the Calculation Agent will make adjustments to any one or more of the Strike Price, the Number of Warrants, the Warrant Entitlement and/or any other variable relevant to the exercise, settlement, payment or other terms of the Transaction as it determines appropriate, in its commercially reasonable discretion, to account for the economic effect on the Transaction of such Extraordinary Dividend.
|
|
New Shares:
|
In the definition of New Shares in Section 12.1(i) of the Equity Definitions, the text in clause (i) thereof shall be deleted in its entirety and replaced with “publicly quoted, traded or listed on any of The New York Stock Exchange, The NASDAQ Global Market or The NASDAQ Global Select Market (or their respective successors) and of a corporation that is organized under the laws of the United States, any State thereof or the District of Columbia”.
|
|
Merger Event:
|
Applicable;
provided
that if an event occurs that constitutes both a Merger Event under Section
|
|
|
12.1(b) of the Equity Definitions and an Additional Termination Event under Section 8(j)(iv) of this Confirmation,
Dealer may elect, in its commercially reasonable judgment, whether the provisions of Section 12.2 of the Equity Definitions or Section
8(j)(iv)
will apply
.
|
|
Consequences of Merger Events:
|
|
(a)
|
Share-for-Share:
|
Modified Calculation Agent Adjustment
|
|
(b)
|
Share-for-Other:
|
Cancellation and Payment (Calculation Agent Determination)
|
|
(c)
|
Share-for-Combined:
|
Cancellation and Payment (Calculation Agent Determination);
provided
that the Calculation Agent may elect Component Adjustment for all or part of the Transaction.
|
|
Tender Offer:
|
Applicable;
provided
that if an event occurs that constitutes both a Tender Offer under Section 12.1(d) of the Equity Definitions and an Additional Termination Event under Section 8(j)(iii) of this Confirmation,
Dealer may elect, in its commercially reasonable judgment, whether the provisions of Section 12.3 of the Equity Definitions or Section
8(j)(iii)
will apply
.
|
|
Consequences of Tender Offers:
|
|
(a)
|
Share-for-Share:
|
Modified Calculation Agent Adjustment
|
|
(b)
|
Share-for-Other:
|
Modified Calculation Agent Adjustment
|
|
(c)
|
Share-for-Combined:
|
Modified Calculation Agent Adjustment
|
Consequences of Announcement Events:
|
Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions;
provided
that, in respect of an Announcement Event, references to “Tender Offer” shall be replaced by references to “Announcement Event” and references to “Tender Offer Date” shall be replaced by references to “date of such Announcement Event”. An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, to which Article 12 of the Equity Definitions is applicable.
|
|
Announcement Event:
|
(i) The public announcement of any Merger Event or Tender Offer, the intention to enter into a Merger Event or Tender Offer or any transaction or event that, if completed, would constitute a Merger Event or Tender Offer, (ii) the public announcement by Counterparty or any of its subsidiaries of any acquisition where the aggregate consideration exceeds 15% of the market capitalization of Counterparty as of the date of such announcement (an “
Acquisition Transaction
”), (iii) the public announcement by Counterparty of an intention to solicit or enter into, or to explore strategic alternatives or other similar undertaking that may
|
|
|
include, a Merger Event, Tender Offer or Acquisition Transaction or (iv) any subsequent public announcement 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, whether such announcement is made by Counterparty or a third party);
provided
that, 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.
|
|
Announcement Date:
|
The definition of “Announcement Date” in Section 12.1 of the Equity Definitions is hereby amended by (i) replacing the words “a firm” with the word “any” in the second and fourth lines thereof, (ii) replacing the word “leads to the” with the words “, if completed, would lead to a” in the third and the fifth lines thereof, (iii) replacing the words “voting shares” with the word “Shares” in the fifth line thereof, and (iv) inserting the words “by any entity” after the word “announcement” in the second and the fourth lines thereof.
|
|
Modified Calculation
|
|
Agent Adjustment:
|
If, in respect of a Merger Event, the Counterparty under the Transaction following such Merger Event will not be the issuer of the New Shares, the Dealer may elect (in its sole discretion) for Cancellation and Payment (Calculation Agent Determination) to apply. In addition, if, in respect of any Merger Event to which Modified Calculation Agent Adjustment applies, the adjustments to be made in accordance with Section 12.2(e)(i) of the Equity Definitions would result in Counterparty being different from the issuer of the Shares, then with respect to such Merger Event, as a condition precedent to the adjustments contemplated in Section 12.2(e)(i) of the Equity Definitions, Counterparty and the issuer of the Shares shall, prior to the Merger Date, have entered into such documentation containing representations, warranties and agreements relating to securities law and other issues as requested by Dealer that Dealer has determined, in its reasonable discretion, to be reasonably necessary or appropriate to allow Dealer to continue as a party to the Transaction, as adjusted under Section 12.2(e)(i) of the Equity Definitions, and to preserve its hedging or hedge unwind activities in connection with the Transaction in a manner compliant with applicable legal, regulatory or self-regulatory requirements, or with related policies
|
|
|
and procedures applicable to Dealer (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer), and if such conditions are not met or if the Calculation Agent determines that no adjustment that it could make under Section 12.2(e)(i) of the Equity Definitions will produce a commercially reasonable result, then the consequences set forth in Section 12.2(e)(ii) of the Equity Definitions shall apply.
|
|
Nationalization, Insolvency
|
|
or Delisting:
|
Cancellation and Payment (Calculation Agent Determination);
provided
that in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it will also constitute a Delisting if the 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 such exchange or quotation system, such exchange or quotation system shall thereafter be deemed to be the Exchange.
|
|
Additional Termination Event(s):
|
Notwithstanding anything to the contrary in the Equity Definitions, if, as a result of an Extraordinary Event, any Transaction would be cancelled or terminated (whether in whole or in part) pursuant to
|
|
|
Article 12 of the Equity Definitions, an Additional Termination Event (with such terminated Transaction(s) (or portions thereof) being the Affected Transaction(s) and Counterparty being the sole Affected Party) shall be deemed to occur, and, in lieu of Sections 12.7, 12.8 and 12.9 of the Equity Definitions, Section 6 of the Agreement shall apply to such Affected Transaction(s).
|
|
(a)
|
Change in Law:
|
Applicable; provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the phrase “the interpretation” in the third line thereof with the phrase “, or public announcement of, the formal or informal interpretation”, (ii) by adding the phrase “and/or Hedge Position” after the word “Shares” in clause (X) thereof and (iii) by immediately following the word “Transaction” in clause (X) thereof, adding the phrase “in the manner contemplated by the Hedging Party on the Trade Date”; provided, further that (i) any determination as to whether (A) the adoption of or any change in any applicable law or regulation (including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute) or (B) the promulgation of or any change in the interpretation by any court, tribunal or regulatory authority with competent jurisdiction of any applicable law or regulation (including any action taken by a taxing authority), in each case, constitutes a “Change in Law” shall be made without regard to Section 739 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 or any similar legal certainty provision in any legislation enacted, or rule or regulation promulgated, on or after the Trade Date, and (ii) Section 12.9(a)(ii) of the Equity Definitions is hereby amended by replacing the parenthetical beginning after the word “regulation” in the second line thereof with the phrase “(including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute)”.
|
|
(b)
|
Failure to Deliver:
|
Not Applicable
|
|
(c)
|
Insolvency Filing:
|
Applicable
|
|
(d)
|
Hedging Disruption:
|
Applicable;
provided
that
|
|
(i)
|
Section 12.9(a)(v) of the Equity Definitions is hereby modified by:
|
|
(a)
|
inserting the following words at the end of clause (A) thereof: “in the manner
|
|
|
contemplated by the Hedging Party on the Trade Date”;
|
|
(b)
|
inserting the following two phrases at the end of such Section:
|
|
“For the avoidance of doubt, the term “equity price risk” shall be deemed to include, but shall not be limited to, stock price and volatility risk. And, for the further avoidance of doubt, the transactions or assets referred to in phrases (A) or (B) above must be available on commercially reasonable pricing and other terms.”;
|
|
(ii)
|
Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line thereof, after the words “to terminate the Transaction”, the words “or a portion of the Transaction affected by such Hedging Disruption”.
|
|
(e)
|
Increased Cost of Hedging:
|
Applicable
|
|
(f)
|
Loss of Stock Borrow:
|
Applicable
|
|
Maximum Stock Loan Rate:
|
200 basis points per annum
|
|
(g)
|
Increased Cost of Stock Borrow:
|
Applicable
|
|
Initial Stock Loan Rate:
|
Prior to September 16, 2021, zero basis points per annum, and thereafter, 25 basis points per annum.
|
|
Hedging Party:
|
Dealer for all applicable Additional Disruption Events.
|
|
Determining Party:
|
Dealer for all applicable Additional Disruption Events.
|
|
Non-Reliance:
|
Applicable
|
|
Agreements and Acknowledgments
|
|
Regarding Hedging Activities:
|
Applicable
|
|
Additional Acknowledgments:
|
Applicable
|
|
3.
|
Calculation Agent
:
|
Dealer;
provided
that all calculations and determinations made by the Calculation Agent shall be made in good faith and in a commercially reasonable manner;
provided further
that, upon receipt of written request from Counterparty, the Calculation Agent shall promptly provide Counterparty with a written explanation describing in reasonable detail any calculation, adjustment or determination made by it (including any quotations, market data or information from internal or external sources used in making such calculation, adjustment or determination, as the case may be, but without disclosing Dealer’s proprietary models or other information that may be proprietary or subject to contractual, legal or regulatory obligations to not disclose such information), and shall use commercially reasonable efforts to provide such written explanation within five Exchange Business Days from the receipt of such request.
|
4.
|
Account Details
:
|
|
Dealer Payment Instructions:
|
|
Account for delivery of Shares to Dealer: To be provided by Dealer
|
|
Counterparty Payment Instructions: To be provided by Counterparty.
|
5.
|
Offices
:
|
6.
|
Notices
: For purposes of this Confirmation:
|
To:
|
Dycom Industries, Inc.
|
Attn:
|
General Counsel
|
Telephone:
|
(561) 627-7171
|
Facsimile:
|
(561) 627-7709
|
Share Termination Alternative:
|
If applicable, means that Counterparty shall deliver to Dealer the Share Termination Delivery Property on the date on which the Payment Obligation would otherwise be due pursuant to the Transaction, including, without limitation, pursuant to Section 12.2, 12.3, 12.6, 12.7 or 12.9 of the Equity Definitions or Section 6(d)(ii) of the Agreement, as applicable, or such later date or dates as the Calculation Agent may reasonably determine (the “
Share Termination Payment Date
”), in satisfaction of the Payment Obligation.
|
Property:
|
A number of Share Termination Delivery Units, as calculated by the Calculation Agent, equal to the Payment Obligation divided by the Share Termination Unit Price. The Calculation Agent shall adjust the
|
|
Share Termination Delivery Property by replacing any fractional portion of the aggregate amount of a security therein with an amount of cash in the Settlement Currency equal to the value of such fractional security based on the values used to calculate the Share Termination Unit Price.
|
Share Termination Unit Price:
|
The value of property contained in one Share Termination Delivery Unit on the date such Share Termination Delivery Units are to be delivered as Share Termination Delivery Property, as determined by the Calculation Agent in its discretion by commercially reasonable means and notified by the Calculation Agent to Counterparty at the time of notification of the Payment Obligation.
|
Share Termination Delivery Unit:
|
In the case of a Termination Event, Event of Default, Delisting or Additional Disruption Event, one Share or, in the case of an Insolvency, Nationalization, Merger Event or Tender Offer, one Share or a unit consisting of the number or amount of each type of property received by a holder of one Share (without consideration of any requirement to pay cash or other consideration in lieu of fractional amounts of any securities) in such Insolvency, Nationalization, Merger Event or Tender Offer. If such Insolvency, Nationalization, Merger Event or Tender Offer involves a choice of consideration to be received by holders, such holder shall be deemed to have elected to receive the maximum possible amount of cash.
|
Failure to Deliver:
|
Not Applicable
|
Other Applicable Provisions:
|
If Share Termination Alternative is applicable, the provisions of Sections 9.1(c), 9.8, 9.9, 9.10, 9.11 and 9.12 of the Equity Definitions will be applicable as if “Physical Settlement” applied to the Transaction, except that all references to “Shares” shall be read as references to “Share Termination Delivery Units”;
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 as a result of the fact that Counterparty is the issuer of any Share Termination Delivery Units (or any security forming a part thereof). If, in the reasonable opinion of Counterparty or Dealer, based on advice of counsel, for any reason, any securities comprising the Share Termination Delivery Units deliverable pursuant to this Section 8(a) would not be immediately freely transferable by Dealer under Rule 144 under the Securities Act, then Dealer may elect to either (x) permit delivery of such securities notwithstanding any restriction on transfer or (y) have the provisions set forth in Section 8(b) below apply.
|
Yours faithfully, | ||||
WELLS FARGO BANK, NATIONAL ASSOCIATION | ||||
By: | /s/ Thomas Yates | |||
Name: | Thomas Yates | |||
Title: | Managing Director | |||
Component Number
|
Number of Warrants
|
Expiration Date
|
1
|
8,669
|
12/15/2021
|
2
|
8,669
|
12/16/2021
|
3
|
8,669
|
12/17/2021
|
4
|
8,669
|
12/20/2021
|
5
|
8,669
|
12/21/2021
|
6
|
8,669
|
12/22/2021
|
7
|
8,669
|
12/23/2021
|
8
|
8,669
|
12/27/2021
|
9
|
8,669
|
12/28/2021
|
10
|
8,669
|
12/29/2021
|
11
|
8,669
|
12/30/2021
|
12
|
8,669
|
12/31/2021
|
13
|
8,669
|
1/3/2022
|
14
|
8,669
|
1/4/2022
|
15
|
8,669
|
1/5/2022
|
16
|
8,669
|
1/6/2022
|
17
|
8,669
|
1/7/2022
|
18
|
8,669
|
1/10/2022
|
19
|
8,669
|
1/11/2022
|
20
|
8,669
|
1/12/2022
|
21
|
8,669
|
1/13/2022
|
22
|
8,669
|
1/14/2022
|
23
|
8,669
|
1/18/2022
|
24
|
8,669
|
1/19/2022
|
25
|
8,669
|
1/20/2022
|
26
|
8,669
|
1/21/2022
|
27
|
8,669
|
1/24/2022
|
28
|
8,669
|
1/25/2022
|
29
|
8,670
|
1/26/2022
|
30
|
8,670
|
1/27/2022
|
31
|
8,670
|
1/28/2022
|
32
|
8,670
|
1/31/2022
|
33
|
8,670
|
2/1/2022
|
34
|
8,670
|
2/2/2022
|
35
|
8,670
|
2/3/2022
|
36
|
8,670
|
2/4/2022
|
37
|
8,670
|
2/7/2022
|
38
|
8,670
|
2/8/2022
|
39
|
8,670
|
2/9/2022
|
40
|
8,670
|
2/10/2022
|
41
|
8,670
|
2/11/2022
|
42
|
8,670
|
2/14/2022
|
43
|
8,670
|
2/15/2022
|
44
|
8,670
|
2/16/2022
|
45
|
8,670
|
2/17/2022
|
46
|
8,670
|
2/18/2022
|
47
|
8,670
|
2/22/2022
|
48
|
8,670
|
2/23/2022
|
49
|
8,670
|
2/24/2022
|
50
|
8,670
|
2/25/2022
|
51
|
8,670
|
2/28/2022
|
52
|
8,670
|
3/1/2022
|
53
|
8,670
|
3/2/2022
|
54
|
8,670
|
3/3/2022
|
55
|
8,670
|
3/4/2022
|
56
|
8,670
|
3/7/2022
|
57
|
8,670
|
3/8/2022
|
58
|
8,670
|
3/9/2022
|
59
|
8,670
|
3/10/2022
|
60
|
8,670
|
3/11/2022
|
61
|
8,670
|
3/14/2022
|
62
|
8,670
|
3/15/2022
|
63
|
8,670
|
3/16/2022
|
64
|
8,670
|
3/17/2022
|
65
|
8,670
|
3/18/2022
|
66
|
8,670
|
3/21/2022
|
67
|
8,670
|
3/22/2022
|
68
|
8,670
|
3/23/2022
|
69
|
8,670
|
3/24/2022
|
70
|
8,670
|
3/25/2022
|
71
|
8,670
|
3/28/2022
|
72
|
8,670
|
3/29/2022
|
73
|
8,670
|
3/30/2022
|
74
|
8,670
|
3/31/2022
|
75
|
8,670
|
4/1/2022
|
76
|
8,670
|
4/4/2022
|
77
|
8,670
|
4/5/2022
|
78
|
8,670
|
4/6/2022
|
79
|
8,670
|
4/7/2022
|
80
|
8,670
|
4/8/2022
|
81
|
8,670
|
4/11/2022
|
82
|
8,670
|
4/12/2022
|
83
|
8,670
|
4/13/2022
|
84
|
8,670
|
4/14/2022
|
85
|
8,670
|
4/18/2022
|
86
|
8,670
|
4/19/2022
|
87
|
8,670
|
4/20/2022
|
88
|
8,670
|
4/21/2022
|
89
|
8,670
|
4/22/2022
|
90
|
8,670
|
4/25/2022
|
91
|
8,670
|
4/26/2022
|
92
|
8,670
|
4/27/2022
|
93
|
8,670
|
4/28/2022
|
94
|
8,670
|
4/29/2022
|
95
|
8,670
|
5/2/2022
|
96
|
8,670
|
5/3/2022
|
97
|
8,670
|
5/4/2022
|
98
|
8,670
|
5/5/2022
|
99
|
8,670
|
5/6/2022
|
100
|
8,670
|
5/9/2022
|
To:
|
Dycom Industries, Inc.
11780 U.S. Highway 1, Suite 600
Palm Beach Gardens, Florida 33408
|
A/C:
|
051130730
|
From:
|
|
Re:
|
Additional Issuer Warrant Transaction
|
Ref. No:
|
SDB2502801719
|
Date:
|
|
Trade Date:
|
September 10, 2015
|
|
Effective Date:
|
September 15, 2015, or such other date as agreed between the parties, subject to Section 8(k) below
|
|
Components:
|
The Transaction will be divided into individual Components, each with the terms set forth in this Confirmation, and, in particular, with the Number of Warrants and Expiration Date set forth in this Confirmation. The payments and deliveries to be made upon settlement of the Transaction will be determined separately for each Component as if each Component were a separate Transaction under the Agreement.
|
|
Warrant Style:
|
European
|
|
Warrant Type:
|
Call
|
|
Seller:
|
Counterparty
|
|
Buyer:
|
Dealer
|
|
Shares:
|
The Common Stock of Counterparty, par value USD
0.33 1/3
(Ticker Symbol: “DY”).
|
|
Number of Warrants:
|
For each Component, as provided in Annex A to this Confirmation.
|
|
Warrant Entitlement:
|
One Share per Warrant
|
|
Strike Price:
|
USD130.4275
|
|
Notwithstanding anything to the contrary in the Agreement, this Confirmation or the Equity Definitions, in no event shall the Strike Price be subject to adjustment to the extent that, after giving effect to such adjustment, the Strike Price would be less than USD 74.53, except for any adjustment pursuant to the terms of this Confirmation and the Equity Definitions in connection with stock splits or similar changes to Counterparty’s capitalization.
|
|
Number of Shares:
|
As of any date, a number of Shares equal to the product of the Number of Warrants and the Warrant Entitlement.
|
|
Premium:
|
USD5,005,000.00
|
|
Premium Payment Date:
|
The Effective Date
|
|
Exchange:
|
New York Stock Exchange
|
|
Related Exchange:
|
All Exchanges
|
|
In respect of any Component:
|
|
Expiration Time:
|
Valuation Time
|
|
Expiration Date:
|
As provided in
Annex A
to this Confirmation (or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day that is not already an Expiration Date for another Component);
provided
that if that date is a Disrupted Day, the Expiration Date for such Component shall be the first succeeding Scheduled Trading Day that is not a Disrupted Day and is not or is not deemed to be an Expiration Date in respect of any other Component of the Transaction hereunder; and
provided further
that if the Expiration Date has not occurred pursuant to the preceding proviso as of the Final Disruption Date, the Calculation Agent shall have the right to elect, in its sole discretion, that the Final Disruption Date shall be the Expiration Date (irrespective of whether such date is an Expiration Date in respect of any other Component for the Transaction). Notwithstanding the foregoing and anything to the contrary in the Equity Definitions, if a Market Disruption Event occurs on any Expiration Date, the Calculation Agent may determine that such Expiration Date is a Disrupted Day only in part, in which case the Calculation Agent shall make adjustments to the Number of Warrants for the relevant Component for which such day shall be the Expiration Date, shall designate the Scheduled Trading Day determined in the manner described in the immediately preceding sentence as the Expiration Date for the remaining Warrants for such Component and may determine the VWAP Price based on transactions in the Shares effected before the relevant Market Disruption Event occurred and/or after the relevant Market Disruption Event ended. Any Scheduled Trading Day on which, as of the date hereof, the Exchange is scheduled to close prior to its normal close of trading shall be deemed not to be a Scheduled Trading Day; if a closure of the Exchange prior to its normal close of trading on any Scheduled Trading Day is scheduled following the date hereof, then such Scheduled Trading Day shall be deemed to be a Disrupted Day in full
.
Section 6.6 of the Equity Definitions shall not apply to any Valuation Date occurring on an
|
|
Market Disruption Event:
|
Section 6.3(a) of the Equity Definitions is hereby amended by (A) deleting the words “during the one hour period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be,” in clause (ii) thereof and (B) by replacing the words “or (iii) an Early Closure.” therein with “(iii) an Early Closure, or (iv) a Regulatory Disruption that Dealer has elected, by notice to Counterparty, to deem to be a Market Disruption Event.”
|
|
Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the term “Scheduled Closing Time” in the fourth line thereof.
|
|
Regulatory Disruption:
|
Any event that Dealer, in its good faith and reasonable discretion (based on advice of counsel), determines makes it appropriate, with regard to (x) any legal, regulatory or self-regulatory requirements or (y) related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer generally applicable in similar situations and applied in a non-discriminatory manner), for Dealer to refrain from or decrease any market activity in connection with the Transaction. If Dealer determines in good faith that a Market Disruption Event has occurred on any Scheduled Trading Day solely pursuant to clause (y) above and solely with respect to voluntarily adopted policies and procedures, such Scheduled Trading Day will be a Disrupted Day in full.
|
|
Automatic Exercise:
|
Applicable; and means that the Number of Warrants for the corresponding Expiration Date will be deemed to be automatically exercised at the Expiration Time on such Expiration Date unless Dealer notifies Seller (by telephone or in writing) prior to the Expiration Time on such Expiration Date that it does not wish Automatic Exercise to occur, in which case Automatic Exercise will not apply to such Expiration Date.
|
|
Giving Notice:
|
As provided in Section 6(a) below.
|
|
Settlement Currency:
|
USD
|
|
Net Share Settlement:
|
On each Settlement Date, Counterparty shall deliver to Dealer a number of Shares equal to the Number of
|
|
The Number of Shares to be Delivered shall be delivered by Counterparty to Dealer no later than 12:00 noon (local time in New York City) on the relevant Settlement Date.
|
Number of Shares to be Delivered:
|
In respect of any Exercise Date, subject to the last sentence of Section 9.5 of the Equity Definitions, the product of (i) the number of Warrants exercised or deemed exercised on such Exercise Date, (ii) the Warrant Entitlement and (iii) (A) the excess of the VWAP Price on the Valuation Date occurring in respect of such Exercise Date over the Strike Price (or, if there is no such excess, zero)
divided by
(B) such VWAP Price.
|
|
VWAP Price:
|
For any Exchange Business Day, as determined by the Calculation Agent based on the New York Volume Weighted Average Price per Share for the regular trading session (including any extensions thereof)
of the Exchange on such Exchange Business Day (without regard to pre-open or after hours trading outside of such regular trading session), as published by Bloomberg at 4:15 P.M., New York City time (or 15 minutes following the end of any extension of the regular trading session), on such Exchange Business Day,
on Bloomberg page “DY.N <Equity> AQR” (or any successor thereto)
(or if such published volume weighted average price is unavailable or is manifestly incorrect, the market value of one Share on such Exchange Business Day,
as determined by the Calculation Agent using a volume weighted method)
.
|
|
Other Applicable Provisions:
|
The provisions of Sections 9.1(c), 9.4, 9.8, 9.9, 9.10, 9.11 and 9.12 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
|
|
Method of Adjustment:
|
Calculation Agent Adjustment;
provided
that in respect of an Extraordinary Dividend, “Calculation Agent Adjustment” shall be as described in the provision below. For the avoidance of doubt, Calculation Agent Adjustment (including, without limitation, in respect of Extraordinary Dividends) shall continue to apply until the obligations of the parties (including any obligations of Counterparty pursuant to Section 8(e) below) under the Transaction have been satisfied in full.
|
|
Extraordinary Dividend:
|
Any cash dividend or distribution on the Shares with an ex-dividend date occurring on or after the Trade Date and on or prior to the Expiration Date for the Component with the latest Expiration Date (or, if any Deficit Shares are owed pursuant to Section 8(e) below, such later date on which Counterparty’s obligations under this Transaction have been satisfied in full).
|
Extraordinary Dividend Adjustment:
|
If at any time during the period from and including the Trade Date, to and including the Expiration Date for the Component with the latest Expiration Date
|
|
New Shares:
|
In the definition of New Shares in Section 12.1(i) of the Equity Definitions, the text in clause (i) thereof shall be deleted in its entirety and replaced with “publicly quoted, traded or listed on any of The New York Stock Exchange, The NASDAQ Global Market or The NASDAQ Global Select Market (or their respective successors) and of a corporation that is organized under the laws of the United States, any State thereof or the District of Columbia”.
|
|
Merger Event:
|
Applicable;
provided
that if an event occurs that constitutes both a Merger Event under Section
|
|
(a)
|
Share-for-Share:
|
Modified Calculation Agent Adjustment
|
|
(b)
|
Share-for-Other:
|
Cancellation and Payment (Calculation Agent Determination)
|
|
(c)
|
Share-for-Combined:
|
Cancellation and Payment (Calculation Agent Determination);
provided
that the Calculation Agent may elect Component Adjustment for all or part of the Transaction.
|
|
Tender Offer:
|
Applicable;
provided
that if an event occurs that constitutes both a Tender Offer under Section 12.1(d) of the Equity Definitions and an Additional Termination Event under Section 8(j)(iii) of this Confirmation,
Dealer may elect, in its commercially reasonable judgment, whether the provisions of Section 12.3 of the Equity Definitions or Section
8(j)(iii)
will apply
.
|
|
Consequences of Tender Offers:
|
|
(a)
|
Share-for-Share:
|
Modified Calculation Agent Adjustment
|
|
(b)
|
Share-for-Other:
|
Modified Calculation Agent Adjustment
|
|
(c)
|
Share-for-Combined:
|
Modified Calculation Agent Adjustment
|
Consequences of Announcement Events:
|
Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions;
provided
that, in respect of an Announcement Event, references to “Tender Offer” shall be replaced by references to “Announcement Event” and references to “Tender Offer Date” shall be replaced by references to “date of such Announcement Event”. An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, to which Article 12 of the Equity Definitions is applicable.
|
|
Announcement Event:
|
(i) The public announcement of any Merger Event or Tender Offer, the intention to enter into a Merger Event or Tender Offer or any transaction or event that, if completed, would constitute a Merger Event or Tender Offer, (ii) the public announcement by Counterparty or any of its subsidiaries of any acquisition where the aggregate consideration exceeds 15% of the market capitalization of Counterparty as of the date of such announcement (an “
Acquisition Transaction
”), (iii) the public announcement by Counterparty of an intention to solicit or enter into, or to explore strategic alternatives or other similar undertaking that may
|
|
Announcement Date:
|
The definition of “Announcement Date” in Section 12.1 of the Equity Definitions is hereby amended by (i) replacing the words “a firm” with the word “any” in the second and fourth lines thereof, (ii) replacing the word “leads to the” with the words “, if completed, would lead to a” in the third and the fifth lines thereof, (iii) replacing the words “voting shares” with the word “Shares” in the fifth line thereof, and (iv) inserting the words “by any entity” after the word “announcement” in the second and the fourth lines thereof.
|
|
Modified Calculation
|
|
Agent Adjustment:
|
If, in respect of a Merger Event, the Counterparty under the Transaction following such Merger Event will not be the issuer of the New Shares, the Dealer may elect (in its sole discretion) for Cancellation and Payment (Calculation Agent Determination) to apply. In addition, if, in respect of any Merger Event to which Modified Calculation Agent Adjustment applies, the adjustments to be made in accordance with Section 12.2(e)(i) of the Equity Definitions would result in Counterparty being different from the issuer of the Shares, then with respect to such Merger Event, as a condition precedent to the adjustments contemplated in Section 12.2(e)(i) of the Equity Definitions, Counterparty and the issuer of the Shares shall, prior to the Merger Date, have entered into such documentation containing representations, warranties and agreements relating to securities law and other issues as requested by Dealer that Dealer has determined, in its reasonable discretion, to be reasonably necessary or appropriate to allow Dealer to continue as a party to the Transaction, as adjusted under Section 12.2(e)(i) of the Equity Definitions, and to preserve its hedging or hedge unwind activities in connection with the Transaction in a manner compliant with applicable legal, regulatory or self-regulatory requirements, or with related policies
|
|
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 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 such exchange or quotation system, such exchange or quotation system shall thereafter be deemed to be the Exchange.
|
|
Additional Termination Event(s):
|
Notwithstanding anything to the contrary in the Equity Definitions, if, as a result of an Extraordinary Event, any Transaction would be cancelled or terminated (whether in whole or in part) pursuant to
|
|
(a)
|
Change in Law:
|
Applicable; provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the phrase “the interpretation” in the third line thereof with the phrase “, or public announcement of, the formal or informal interpretation”, (ii) by adding the phrase “and/or Hedge Position” after the word “Shares” in clause (X) thereof and (iii) by immediately following the word “Transaction” in clause (X) thereof, adding the phrase “in the manner contemplated by the Hedging Party on the Trade Date”; provided, further that (i) any determination as to whether (A) the adoption of or any change in any applicable law or regulation (including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute) or (B) the promulgation of or any change in the interpretation by any court, tribunal or regulatory authority with competent jurisdiction of any applicable law or regulation (including any action taken by a taxing authority), in each case, constitutes a “Change in Law” shall be made without regard to Section 739 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 or any similar legal certainty provision in any legislation enacted, or rule or regulation promulgated, on or after the Trade Date, and (ii) Section 12.9(a)(ii) of the Equity Definitions is hereby amended by replacing the parenthetical beginning after the word “regulation” in the second line thereof with the phrase “(including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute)”.
|
|
(b)
|
Failure to Deliver:
|
Not Applicable
|
|
(c)
|
Insolvency Filing:
|
Applicable
|
|
(d)
|
Hedging Disruption:
|
Applicable;
provided
that
|
|
(i)
|
Section 12.9(a)(v) of the Equity Definitions is hereby modified by:
|
|
(a)
|
inserting the following words at the end of clause (A) thereof: “in the manner
|
|
(b)
|
inserting the following two phrases at the end of such Section:
|
|
“For the avoidance of doubt, the term “equity price risk” shall be deemed to include, but shall not be limited to, stock price and volatility risk. And, for the further avoidance of doubt, the transactions or assets referred to in phrases (A) or (B) above must be available on commercially reasonable pricing and other terms.”;
|
|
(ii)
|
Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line thereof, after the words “to terminate the Transaction”, the words “or a portion of the Transaction affected by such Hedging Disruption”.
|
|
(e)
|
Increased Cost of Hedging:
|
Applicable
|
|
(f)
|
Loss of Stock Borrow:
|
Applicable
|
|
Maximum Stock Loan Rate:
|
200 basis points per annum
|
|
(g)
|
Increased Cost of Stock Borrow:
|
Applicable
|
|
Initial Stock Loan Rate:
|
Prior to September 16, 2021, zero basis points per annum, and thereafter, 25 basis points per annum.
|
|
Hedging Party:
|
Dealer for all applicable Additional Disruption Events.
|
|
Determining Party:
|
Dealer for all applicable Additional Disruption Events.
|
|
Non-Reliance:
|
Applicable
|
|
Regarding Hedging Activities:
|
Applicable
|
|
Additional Acknowledgments:
|
Applicable
|
|
3.
|
Calculation Agent
:
|
Dealer;
provided
that all calculations and determinations made by the Calculation Agent shall be made in good faith and in a commercially reasonable manner;
provided further
that, upon receipt of written request from Counterparty, the Calculation Agent shall promptly provide Counterparty with a written explanation describing in reasonable detail any calculation, adjustment or determination made by it (including any quotations, market data or information from internal or external sources used in making such calculation, adjustment or determination, as the case may be, but without disclosing Dealer’s proprietary models or other information that may be proprietary or subject to contractual, legal or regulatory obligations to not disclose such information), and shall use commercially reasonable efforts to provide such written explanation within five Exchange Business Days from the receipt of such request.
|
4.
|
Account Details
:
|
5.
|
Offices
:
|
6.
|
Notices
: For purposes of this Confirmation:
|
To:
|
Dycom Industries, Inc.
|
Attn:
|
General Counsel
|
Telephone:
|
(561) 627-7171
|
Facsimile:
|
(561) 627-7709
|
To:
|
Goldman, Sachs & Co.
|
|
200 West Street
|
|
New York, NY 10282-2198
|
|
Attn:
|
Bennett Schachter
|
|
Structured Equity Group
|
|
Telephone:
|
212-902-2568
|
|
Facsimile:
|
212-902-3000
|
|
Email:
|
bennett.schachter@gs.com
|
|
With a copy to:
|
|
Attn:
|
Daniel Josephs
|
|
Structured Equity Group
|
|
Telephone:
|
212-902-8193
|
|
Facsimile:
|
917-977-3943
|
|
Email:
|
daniel.josephs@gs.com
|
Share Termination Alternative:
|
If applicable, means that Counterparty shall deliver to Dealer the Share Termination Delivery Property on the date on which the Payment Obligation would otherwise be due pursuant to the Transaction, including, without limitation, pursuant to Section 12.2, 12.3, 12.6, 12.7 or 12.9 of the Equity Definitions or Section 6(d)(ii) of the Agreement,
|
Property:
|
A number of Share Termination Delivery Units, as calculated by the Calculation Agent, equal to the Payment Obligation divided by the Share Termination Unit Price. The Calculation Agent shall adjust the Share Termination Delivery Property by replacing any fractional portion of the aggregate amount of a security therein with an amount of cash in the Settlement Currency equal to the value of such fractional security based on the values used to calculate the Share Termination Unit Price.
|
Share Termination Unit Price:
|
The value of property contained in one Share Termination Delivery Unit on the date such Share Termination Delivery Units are to be delivered as Share Termination Delivery Property, as determined by the Calculation Agent in its discretion by commercially reasonable means and notified by the Calculation Agent to Counterparty at the time of notification of the Payment Obligation.
|
Share Termination Delivery Unit:
|
In the case of a Termination Event, Event of Default, Delisting or Additional Disruption Event, one Share or, in the case of an Insolvency, Nationalization, Merger Event or Tender Offer, one Share or a unit consisting of the number or amount of each type of property received by a holder of one Share (without consideration of any requirement to pay cash or other consideration in lieu of fractional amounts of any securities) in such Insolvency, Nationalization, Merger Event or Tender Offer. If such Insolvency, Nationalization, Merger Event or Tender Offer involves a choice of consideration to be received by holders, such holder shall be deemed to have elected to receive the maximum possible amount of cash.
|
Failure to Deliver:
|
Not Applicable
|
Other Applicable Provisions:
|
If Share Termination Alternative is applicable, the provisions of Sections 9.1(c), 9.8, 9.9, 9.10, 9.11 and 9.12 of the Equity Definitions will be applicable as if “Physical Settlement” applied to the Transaction, except that all references to “Shares” shall be read as references to “Share Termination Delivery Units”;
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 as a result of the fact that Counterparty is the issuer of any Share Termination Delivery Units (or any security forming a part thereof). If, in the reasonable opinion of Counterparty or Dealer, based on advice of counsel, for any reason, any securities comprising the Share Termination Delivery Units deliverable pursuant to this Section 8(a) would not be immediately freely transferable by Dealer under Rule 144 under the Securities Act, then Dealer may elect to either (x) permit delivery of such securities notwithstanding any restriction on transfer or (y) have the provisions set forth in Section 8(b) below apply.
|
Yours faithfully, | ||||
GOLDMAN, SACHS & CO. | ||||
By: | /s/ Eugene Parloff | |||
Name: | Eugene Parloff | |||
Title: | Vice President | |||
Agreed and Accepted By: | |||
DYCOM INDUSTRIES , INC. | |||
By: | /s/ H. Andrew DeFerrari | ||
Name: | H. Andrew DeFerrari | ||
Title: | Senior Vice President & Chief Financial Officer | ||
Component Number
|
Number of Warrants
|
Expiration Date
|
1
|
3,354
|
12/15/2021
|
2
|
3,354
|
12/16/2021
|
3
|
3,354
|
12/17/2021
|
4
|
3,354
|
12/20/2021
|
5
|
3,354
|
12/21/2021
|
6
|
3,354
|
12/22/2021
|
7
|
3,354
|
12/23/2021
|
8
|
3,354
|
12/27/2021
|
9
|
3,354
|
12/28/2021
|
10
|
3,354
|
12/29/2021
|
11
|
3,354
|
12/30/2021
|
12
|
3,354
|
12/31/2021
|
13
|
3,354
|
1/3/2022
|
14
|
3,354
|
1/4/2022
|
15
|
3,354
|
1/5/2022
|
16
|
3,354
|
1/6/2022
|
17
|
3,354
|
1/7/2022
|
18
|
3,354
|
1/10/2022
|
19
|
3,354
|
1/11/2022
|
20
|
3,354
|
1/12/2022
|
21
|
3,354
|
1/13/2022
|
22
|
3,354
|
1/14/2022
|
23
|
3,354
|
1/18/2022
|
24
|
3,354
|
1/19/2022
|
25
|
3,354
|
1/20/2022
|
26
|
3,354
|
1/21/2022
|
27
|
3,354
|
1/24/2022
|
28
|
3,354
|
1/25/2022
|
29
|
3,354
|
1/26/2022
|
30
|
3,354
|
1/27/2022
|
31
|
3,354
|
1/28/2022
|
32
|
3,354
|
1/31/2022
|
33
|
3,354
|
2/1/2022
|
34
|
3,354
|
2/2/2022
|
35
|
3,354
|
2/3/2022
|
36
|
3,354
|
2/4/2022
|
37
|
3,354
|
2/7/2022
|
38
|
3,354
|
2/8/2022
|
39
|
3,354
|
2/9/2022
|
40
|
3,354
|
2/10/2022
|
41
|
3,354
|
2/11/2022
|
42
|
3,354
|
2/14/2022
|
43
|
3,354
|
2/15/2022
|
44
|
3,354
|
2/16/2022
|
45
|
3,354
|
2/17/2022
|
46
|
3,354
|
2/18/2022
|
47
|
3,354
|
2/22/2022
|
48
|
3,354
|
2/23/2022
|
49
|
3,354
|
2/24/2022
|
50
|
3,354
|
2/25/2022
|
51
|
3,354
|
2/28/2022
|
52
|
3,354
|
3/1/2022
|
53
|
3,354
|
3/2/2022
|
54
|
3,354
|
3/3/2022
|
55
|
3,354
|
3/4/2022
|
56
|
3,354
|
3/7/2022
|
57
|
3,354
|
3/8/2022
|
58
|
3,354
|
3/9/2022
|
59
|
3,354
|
3/10/2022
|
60
|
3,354
|
3/11/2022
|
61
|
3,354
|
3/14/2022
|
62
|
3,354
|
3/15/2022
|
63
|
3,354
|
3/16/2022
|
64
|
3,354
|
3/17/2022
|
65
|
3,355
|
3/18/2022
|
66
|
3,355
|
3/21/2022
|
67
|
3,355
|
3/22/2022
|
68
|
3,355
|
3/23/2022
|
69
|
3,355
|
3/24/2022
|
70
|
3,355
|
3/25/2022
|
71
|
3,355
|
3/28/2022
|
72
|
3,355
|
3/29/2022
|
73
|
3,355
|
3/30/2022
|
74
|
3,355
|
3/31/2022
|
75
|
3,355
|
4/1/2022
|
76
|
3,355
|
4/4/2022
|
77
|
3,355
|
4/5/2022
|
78
|
3,355
|
4/6/2022
|
79
|
3,355
|
4/7/2022
|
80
|
3,355
|
4/8/2022
|
81
|
3,355
|
4/11/2022
|
82
|
3,355
|
4/12/2022
|
83
|
3,355
|
4/13/2022
|
84
|
3,355
|
4/14/2022
|
85
|
3,355
|
4/18/2022
|
86
|
3,355
|
4/19/2022
|
87
|
3,355
|
4/20/2022
|
88
|
3,355
|
4/21/2022
|
89
|
3,355
|
4/22/2022
|
90
|
3,355
|
4/25/2022
|
91
|
3,355
|
4/26/2022
|
92
|
3,355
|
4/27/2022
|
93
|
3,355
|
4/28/2022
|
94
|
3,355
|
4/29/2022
|
95
|
3,355
|
5/2/2022
|
96
|
3,355
|
5/3/2022
|
97
|
3,355
|
5/4/2022
|
98
|
3,355
|
5/5/2022
|
99
|
3,355
|
5/6/2022
|
100
|
3,355
|
5/9/2022
|
To:
|
11780 U.S. Highway 1, Suite 600
Palm Beach Gardens, Florida 33408
|
From:
|
|
Re:
|
Additional Issuer Warrant Transaction
|
Date:
|
|
Trade Date:
|
September 10, 2015
|
|
Effective Date:
|
September 15, 2015, or such other date as agreed between the parties, subject to Section 8(k) below
|
|
Components:
|
The Transaction will be divided into individual Components, each with the terms set forth in this Confirmation, and, in particular, with the Number of Warrants and Expiration Date set forth in this Confirmation. The payments and deliveries to be made upon settlement of the Transaction will be determined separately for each Component as if each Component were a separate Transaction under the Agreement.
|
|
Warrant Style:
|
European
|
|
Warrant Type:
|
Call
|
|
Seller:
|
Counterparty
|
|
Buyer:
|
Dealer
|
|
Shares:
|
The Common Stock of Counterparty, par value USD
0.33 1/3
(Ticker Symbol: “DY”).
|
|
Number of Warrants:
|
For each Component, as provided in Annex A to this Confirmation.
|
|
Warrant Entitlement:
|
One Share per Warrant
|
|
Strike Price:
|
USD130.4275
|
|
Notwithstanding anything to the contrary in the Agreement, this Confirmation or the Equity Definitions, in no event shall the Strike Price be subject to adjustment to the extent that, after giving effect to such adjustment, the Strike Price would be less than USD74.53, except for any adjustment pursuant to the terms of this Confirmation and the Equity Definitions in connection with stock splits or similar changes to Counterparty’s capitalization.
|
|
Number of Shares:
|
As of any date, a number of Shares equal to the product of the Number of Warrants and the Warrant Entitlement.
|
|
Premium:
|
USD3,003,000.00
|
|
Premium Payment Date:
|
The Effective Date
|
|
Exchange:
|
New York Stock Exchange
|
|
Related Exchange:
|
All Exchanges
|
|
Expiration Time:
|
Valuation Time
|
|
Expiration Date:
|
As provided in
Annex A
to this Confirmation (or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day that is not already an Expiration Date for another Component);
provided
that if that date is a Disrupted Day, the Expiration Date for such Component shall be the first succeeding Scheduled Trading Day that is not a Disrupted Day and is not or is not deemed to be an Expiration Date in respect of any other Component of the Transaction hereunder; and
provided further
that if the Expiration Date has not occurred pursuant to the preceding proviso as of the Final Disruption Date, the Calculation Agent shall have the right to elect, in its sole discretion, that the Final Disruption Date shall be the Expiration Date (irrespective of whether such date is an Expiration Date in respect of any other Component for the Transaction). Notwithstanding the foregoing and anything to the contrary in the Equity Definitions, if a Market Disruption Event occurs on any Expiration Date, the Calculation Agent may determine that such Expiration Date is a Disrupted Day only in part, in which case the Calculation Agent shall make adjustments to the Number of Warrants for the relevant Component for which such day shall be the Expiration Date, shall designate the Scheduled Trading Day determined in the manner described in the immediately preceding sentence as the Expiration Date for the remaining Warrants for such Component and may determine the VWAP Price based on transactions in the Shares effected before the relevant Market Disruption Event occurred and/or after the relevant Market Disruption Event ended. Any Scheduled Trading Day on which, as of the date hereof, the Exchange is scheduled to close prior to its normal close of trading shall be deemed not to be a Scheduled Trading Day; if a closure of the Exchange prior to its normal close of trading on any Scheduled Trading Day is scheduled following the date hereof, then such Scheduled Trading Day shall be deemed to be a Disrupted Day in full
.
Section 6.6 of the Equity Definitions shall not apply to any Valuation Date occurring on an
|
|
Market Disruption Event:
|
Section 6.3(a) of the Equity Definitions is hereby amended by (A) deleting the words “during the one hour period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be,” in clause (ii) thereof and (B) by replacing the words “or (iii) an Early Closure.” therein with “(iii) an Early Closure, or (iv) a Regulatory Disruption that Dealer has elected, by notice to Counterparty, to deem to be a Market Disruption Event.”
|
|
Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the term “Scheduled Closing Time” in the fourth line thereof.
|
|
Regulatory Disruption:
|
Any event that Dealer, in its good faith and reasonable discretion (based on advice of counsel), determines makes it appropriate, with regard to (x) any legal, regulatory or self-regulatory requirements or (y) related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer generally applicable in similar situations and applied in a non-discriminatory manner), for Dealer to refrain from or decrease any market activity in connection with the Transaction. If Dealer determines in good faith that a Market Disruption Event has occurred on any Scheduled Trading Day solely pursuant to clause (y) above and solely with respect to voluntarily adopted policies and procedures, such Scheduled Trading Day will be a Disrupted Day in full.
|
|
Automatic Exercise:
|
Applicable; and means that the Number of Warrants for the corresponding Expiration Date will be deemed to be automatically exercised at the Expiration Time on such Expiration Date unless Dealer notifies Seller (by telephone or in writing) prior to the Expiration Time on such Expiration Date that it does not wish Automatic Exercise to occur, in which case Automatic Exercise will not apply to such Expiration Date.
|
|
Giving Notice:
|
As provided in Section 6(a) below.
|
|
Settlement Currency:
|
USD
|
|
Net Share Settlement:
|
On each Settlement Date, Counterparty shall deliver to Dealer a number of Shares equal to the Number of
|
|
The Number of Shares to be Delivered shall be delivered by Counterparty to Dealer no later than 12:00 noon (local time in New York City) on the relevant Settlement Date.
|
Number of Shares to be Delivered:
|
In respect of any Exercise Date, subject to the last sentence of Section 9.5 of the Equity Definitions, the product of (i) the number of Warrants exercised or deemed exercised on such Exercise Date, (ii) the Warrant Entitlement and (iii) (A) the excess of the VWAP Price on the Valuation Date occurring in respect of such Exercise Date over the Strike Price (or, if there is no such excess, zero)
divided by
(B) such VWAP Price.
|
|
VWAP Price:
|
For any Exchange Business Day, as determined by the Calculation Agent based on the New York Volume Weighted Average Price per Share for the regular trading session (including any extensions thereof)
of the Exchange on such Exchange Business Day (without regard to pre-open or after hours trading outside of such regular trading session), as published by Bloomberg at 4:15 P.M., New York City time (or 15 minutes following the end of any extension of the regular trading session), on such Exchange Business Day,
on Bloomberg page “DY.N <Equity> AQR” (or any successor thereto)
(or if such published volume weighted average price is unavailable or is manifestly incorrect, the market value of one Share on such Exchange Business Day,
as determined by the Calculation Agent using a volume weighted method)
.
|
|
Other Applicable Provisions:
|
The provisions of Sections 9.1(c), 9.4, 9.8, 9.9, 9.10, 9.11 and 9.12 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
|
|
Method of Adjustment:
|
Calculation Agent Adjustment;
provided
that in respect of an Extraordinary Dividend, “Calculation Agent Adjustment” shall be as described in the provision below. For the avoidance of doubt, Calculation Agent Adjustment (including, without limitation, in respect of Extraordinary Dividends) shall continue to apply until the obligations of the parties (including any obligations of Counterparty pursuant to Section 8(e) below) under the Transaction have been satisfied in full.
|
|
Extraordinary Dividend:
|
Any cash dividend or distribution on the Shares with an ex-dividend date occurring on or after the Trade Date and on or prior to the Expiration Date for the Component with the latest Expiration Date (or, if any Deficit Shares are owed pursuant to Section 8(e) below, such later date on which Counterparty’s obligations under this Transaction have been satisfied in full).
|
Extraordinary Dividend Adjustment:
|
If at any time during the period from and including the Trade Date, to and including the Expiration Date for the Component with the latest Expiration Date
|
|
New Shares:
|
In the definition of New Shares in Section 12.1(i) of the Equity Definitions, the text in clause (i) thereof shall be deleted in its entirety and replaced with “publicly quoted, traded or listed on any of The New York Stock Exchange, The NASDAQ Global Market or The NASDAQ Global Select Market (or their respective successors) and of a corporation that is organized under the laws of the United States, any State thereof or the District of Columbia”.
|
|
Merger Event:
|
Applicable;
provided
that if an event occurs that constitutes both a Merger Event under Section
|
|
(a)
|
Share-for-Share:
|
Modified Calculation Agent Adjustment
|
|
(b)
|
Share-for-Other:
|
Cancellation and Payment (Calculation Agent Determination)
|
|
(c)
|
Share-for-Combined:
|
Cancellation and Payment (Calculation Agent Determination);
provided
that the Calculation Agent may elect Component Adjustment for all or part of the Transaction.
|
|
Tender Offer:
|
Applicable;
provided
that if an event occurs that constitutes both a Tender Offer under Section 12.1(d) of the Equity Definitions and an Additional Termination Event under Section 8(j)(iii) of this Confirmation,
Dealer may elect, in its commercially reasonable judgment, whether the provisions of Section 12.3 of the Equity Definitions or Section
8(j)(iii)
will apply
.
|
|
(a)
|
Share-for-Share:
|
Modified Calculation Agent Adjustment
|
|
(b)
|
Share-for-Other:
|
Modified Calculation Agent Adjustment
|
|
(c)
|
Share-for-Combined:
|
Modified Calculation Agent Adjustment
|
Consequences of Announcement Events:
|
Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions;
provided
that, in respect of an Announcement Event, references to “Tender Offer” shall be replaced by references to “Announcement Event” and references to “Tender Offer Date” shall be replaced by references to “date of such Announcement Event”. An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, to which Article 12 of the Equity Definitions is applicable.
|
|
Announcement Event:
|
(i) The public announcement of any Merger Event or Tender Offer, the intention to enter into a Merger Event or Tender Offer or any transaction or event that, if completed, would constitute a Merger Event or Tender Offer, (ii) the public announcement by Counterparty or any of its subsidiaries of any acquisition where the aggregate consideration exceeds 15% of the market capitalization of Counterparty as of the date of such announcement (an “
Acquisition Transaction
”), (iii) the public announcement by Counterparty of an intention to solicit or enter into, or to explore strategic alternatives or other similar undertaking that may
|
|
Announcement Date:
|
The definition of “Announcement Date” in Section 12.1 of the Equity Definitions is hereby amended by (i) replacing the words “a firm” with the word “any” in the second and fourth lines thereof, (ii) replacing the word “leads to the” with the words “, if completed, would lead to a” in the third and the fifth lines thereof, (iii) replacing the words “voting shares” with the word “Shares” in the fifth line thereof, and (iv) inserting the words “by any entity” after the word “announcement” in the second and the fourth lines thereof.
|
|
Agent Adjustment:
|
If, in respect of a Merger Event, the Counterparty under the Transaction following such Merger Event will not be the issuer of the New Shares, the Dealer may elect (in its sole discretion) for Cancellation and Payment (Calculation Agent Determination) to apply. In addition, if, in respect of any Merger Event to which Modified Calculation Agent Adjustment applies, the adjustments to be made in accordance with Section 12.2(e)(i) of the Equity Definitions would result in Counterparty being different from the issuer of the Shares, then with respect to such Merger Event, as a condition precedent to the adjustments contemplated in Section 12.2(e)(i) of the Equity Definitions, Counterparty and the issuer of the Shares shall, prior to the Merger Date, have entered into such documentation containing representations, warranties and agreements relating to securities law and other issues as requested by Dealer that Dealer has determined, in its reasonable discretion, to be reasonably necessary or appropriate to allow Dealer to continue as a party to the Transaction, as adjusted under Section 12.2(e)(i) of the Equity Definitions, and to preserve its hedging or hedge unwind activities in connection with the Transaction in a manner compliant with applicable legal, regulatory or self-regulatory requirements, or with related policies
|
|
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 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 such exchange or quotation system, such exchange or quotation system shall thereafter be deemed to be the Exchange.
|
|
Additional Termination Event(s):
|
Notwithstanding anything to the contrary in the Equity Definitions, if, as a result of an Extraordinary Event, any Transaction would be cancelled or terminated (whether in whole or in part) pursuant to
|
|
(a)
|
Change in Law:
|
Applicable; provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the phrase “the interpretation” in the third line thereof with the phrase “, or public announcement of, the formal or informal interpretation”, (ii) by adding the phrase “and/or Hedge Position” after the word “Shares” in clause (X) thereof and (iii) by immediately following the word “Transaction” in clause (X) thereof, adding the phrase “in the manner contemplated by the Hedging Party on the Trade Date”; provided, further that (i) any determination as to whether (A) the adoption of or any change in any applicable law or regulation (including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute) or (B) the promulgation of or any change in the interpretation by any court, tribunal or regulatory authority with competent jurisdiction of any applicable law or regulation (including any action taken by a taxing authority), in each case, constitutes a “Change in Law” shall be made without regard to Section 739 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 or any similar legal certainty provision in any legislation enacted, or rule or regulation promulgated, on or after the Trade Date, and (ii) Section 12.9(a)(ii) of the Equity Definitions is hereby amended by replacing the parenthetical beginning after the word “regulation” in the second line thereof with the phrase “(including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute)”.
|
|
(b)
|
Failure to Deliver:
|
Not Applicable
|
|
(c)
|
Insolvency Filing:
|
Applicable
|
|
(d)
|
Hedging Disruption:
|
Applicable;
provided
that
|
|
(i)
|
Section 12.9(a)(v) of the Equity Definitions is hereby modified by:
|
|
(a)
|
inserting the following words at the end of clause (A) thereof: “in the manner
|
|
(b)
|
inserting the following two phrases at the end of such Section:
|
|
“For the avoidance of doubt, the term “equity price risk” shall be deemed to include, but shall not be limited to, stock price and volatility risk. And, for the further avoidance of doubt, the transactions or assets referred to in phrases (A) or (B) above must be available on commercially reasonable pricing and other terms.”;
|
|
(ii)
|
Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line thereof, after the words “to terminate the Transaction”, the words “or a portion of the Transaction affected by such Hedging Disruption”.
|
|
(e)
|
Increased Cost of Hedging:
|
Applicable
|
|
(f)
|
Loss of Stock Borrow:
|
Applicable
|
|
Maximum Stock Loan Rate:
|
200 basis points per annum
|
|
(g)
|
Increased Cost of Stock Borrow:
|
Applicable
|
|
Initial Stock Loan Rate:
|
Prior to September 16, 2021, zero basis points per annum, and thereafter, 25 basis points per annum.
|
|
Hedging Party:
|
Dealer for all applicable Additional Disruption Events.
|
|
Determining Party:
|
Dealer for all applicable Additional Disruption Events.
|
|
Non-Reliance:
|
Applicable
|
|
Regarding Hedging Activities:
|
Applicable
|
|
Additional Acknowledgments:
|
Applicable
|
|
3.
|
Calculation Agent
:
|
Dealer;
provided
that all calculations and determinations made by the Calculation Agent shall be made in good faith and in a commercially reasonable manner;
provided further
that, upon receipt of written request from Counterparty, the Calculation Agent shall promptly provide Counterparty with a written explanation describing in reasonable detail any calculation, adjustment or determination made by it (including any quotations, market data or information from internal or external sources used in making such calculation, adjustment or determination, as the case may be, but without disclosing Dealer’s proprietary models or other information that may be proprietary or subject to contractual, legal or regulatory obligations to not disclose such information), and shall use commercially reasonable efforts to provide such written explanation within five Exchange Business Days from the receipt of such request.
|
4.
|
Account Details
:
|
|
Dealer Payment Instructions:
|
|
Account for delivery of Shares to Dealer: To be provided by Dealer
|
|
Counterparty Payment Instructions: To be provided by Counterparty.
|
5.
|
Offices
:
|
6.
|
Notices
: For purposes of this Confirmation:
|
To:
|
Dycom Industries, Inc.
|
Attn:
|
General Counsel
|
Telephone:
|
(561) 627-7171
|
Facsimile:
|
(561) 627-7709
|
|
To:
|
Bank of America, N.A.
|
|
c/o Merrill Lynch, Pierce, Fenner & Smith Incorporated
|
|
One Bryant Park
|
|
New York, NY 10036
|
|
Attn:
|
Peter Tucker, Assistant General Counsel
|
Telephone:
|
646-855-5821
|
Facsimile:
|
646-822-5633
|
Share Termination Alternative:
|
If applicable, means that Counterparty shall deliver to Dealer the Share Termination Delivery Property on the date on which the Payment Obligation would otherwise be due pursuant to the Transaction, including, without limitation, pursuant to Section 12.2, 12.3, 12.6, 12.7 or 12.9 of the Equity Definitions or Section 6(d)(ii) of the Agreement, as applicable, or such later date or dates as the Calculation Agent may reasonably determine (the “
Share Termination Payment Date
”), in satisfaction of the Payment Obligation.
|
Property:
|
A number of Share Termination Delivery Units, as calculated by the Calculation Agent, equal to the Payment Obligation divided by the Share Termination Unit Price. The Calculation Agent shall adjust the
|
Share Termination Unit Price:
|
The value of property contained in one Share Termination Delivery Unit on the date such Share Termination Delivery Units are to be delivered as Share Termination Delivery Property, as determined by the Calculation Agent in its discretion by commercially reasonable means and notified by the Calculation Agent to Counterparty at the time of notification of the Payment Obligation.
|
Share Termination Delivery Unit:
|
In the case of a Termination Event, Event of Default, Delisting or Additional Disruption Event, one Share or, in the case of an Insolvency, Nationalization, Merger Event or Tender Offer, one Share or a unit consisting of the number or amount of each type of property received by a holder of one Share (without consideration of any requirement to pay cash or other consideration in lieu of fractional amounts of any securities) in such Insolvency, Nationalization, Merger Event or Tender Offer. If such Insolvency, Nationalization, Merger Event or Tender Offer involves a choice of consideration to be received by holders, such holder shall be deemed to have elected to receive the maximum possible amount of cash.
|
Failure to Deliver:
|
Not Applicable
|
Other Applicable Provisions:
|
If Share Termination Alternative is applicable, the provisions of Sections 9.1(c), 9.8, 9.9, 9.10, 9.11 and 9.12 of the Equity Definitions will be applicable as if “Physical Settlement” applied to the Transaction, except that all references to “Shares” shall be read as references to “Share Termination Delivery Units”;
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 as a result of the fact that Counterparty is the issuer of any Share Termination Delivery Units (or any security forming a part thereof). If, in the reasonable opinion of Counterparty or Dealer, based on advice of counsel, for any reason, any securities comprising the Share Termination Delivery Units deliverable pursuant to this Section 8(a) would not be immediately freely transferable by Dealer under Rule 144 under the Securities Act, then Dealer may elect to either (x) permit delivery of such securities notwithstanding any restriction on transfer or (y) have the provisions set forth in Section 8(b) below apply.
|
Yours faithfully, | ||||
BANK OF AMERICA, N.A. | ||||
By: | /s/ Christopher A. Hutmaker | |||
Name: | Christopher A. Hutmaker | |||
Title: | Managing Director | |||
Agreed and Accepted By: | |||
DYCOM INDUSTRIES , INC. | |||
By: | /s/ H. Andrew DeFerrari | ||
Name: | H. Andrew DeFerrari | ||
Title: | Senior Vice President & Chief Financial Officer | ||
Component Number
|
Number of Warrants
|
Expiration Date
|
1
|
2,012
|
12/15/2021
|
2
|
2,012
|
12/16/2021
|
3
|
2,012
|
12/17/2021
|
4
|
2,012
|
12/20/2021
|
5
|
2,012
|
12/21/2021
|
6
|
2,012
|
12/22/2021
|
7
|
2,012
|
12/23/2021
|
8
|
2,012
|
12/27/2021
|
9
|
2,012
|
12/28/2021
|
10
|
2,012
|
12/29/2021
|
11
|
2,012
|
12/30/2021
|
12
|
2,012
|
12/31/2021
|
13
|
2,012
|
1/3/2022
|
14
|
2,012
|
1/4/2022
|
15
|
2,012
|
1/5/2022
|
16
|
2,012
|
1/6/2022
|
17
|
2,012
|
1/7/2022
|
18
|
2,012
|
1/10/2022
|
19
|
2,012
|
1/11/2022
|
20
|
2,012
|
1/12/2022
|
21
|
2,012
|
1/13/2022
|
22
|
2,012
|
1/14/2022
|
23
|
2,012
|
1/18/2022
|
24
|
2,012
|
1/19/2022
|
25
|
2,012
|
1/20/2022
|
26
|
2,012
|
1/21/2022
|
27
|
2,012
|
1/24/2022
|
28
|
2,012
|
1/25/2022
|
29
|
2,012
|
1/26/2022
|
30
|
2,012
|
1/27/2022
|
31
|
2,012
|
1/28/2022
|
32
|
2,012
|
1/31/2022
|
33
|
2,012
|
2/1/2022
|
34
|
2,012
|
2/2/2022
|
35
|
2,012
|
2/3/2022
|
36
|
2,012
|
2/4/2022
|
37
|
2,012
|
2/7/2022
|
38
|
2,012
|
2/8/2022
|
39
|
2,013
|
2/9/2022
|
40
|
2,013
|
2/10/2022
|
41
|
2,013
|
2/11/2022
|
42
|
2,013
|
2/14/2022
|
43
|
2,013
|
2/15/2022
|
44
|
2,013
|
2/16/2022
|
45
|
2,013
|
2/17/2022
|
46
|
2,013
|
2/18/2022
|
47
|
2,013
|
2/22/2022
|
48
|
2,013
|
2/23/2022
|
49
|
2,013
|
2/24/2022
|
50
|
2,013
|
2/25/2022
|
51
|
2,013
|
2/28/2022
|
52
|
2,013
|
3/1/2022
|
53
|
2,013
|
3/2/2022
|
54
|
2,013
|
3/3/2022
|
55
|
2,013
|
3/4/2022
|
56
|
2,013
|
3/7/2022
|
57
|
2,013
|
3/8/2022
|
58
|
2,013
|
3/9/2022
|
59
|
2,013
|
3/10/2022
|
60
|
2,013
|
3/11/2022
|
61
|
2,013
|
3/14/2022
|
62
|
2,013
|
3/15/2022
|
63
|
2,013
|
3/16/2022
|
64
|
2,013
|
3/17/2022
|
65
|
2,013
|
3/18/2022
|
66
|
2,013
|
3/21/2022
|
67
|
2,013
|
3/22/2022
|
68
|
2,013
|
3/23/2022
|
69
|
2,013
|
3/24/2022
|
70
|
2,013
|
3/25/2022
|
71
|
2,013
|
3/28/2022
|
72
|
2,013
|
3/29/2022
|
73
|
2,013
|
3/30/2022
|
74
|
2,013
|
3/31/2022
|
75
|
2,013
|
4/1/2022
|
76
|
2,013
|
4/4/2022
|
77
|
2,013
|
4/5/2022
|
78
|
2,013
|
4/6/2022
|
79
|
2,013
|
4/7/2022
|
80
|
2,013
|
4/8/2022
|
81
|
2,013
|
4/11/2022
|
82
|
2,013
|
4/12/2022
|
83
|
2,013
|
4/13/2022
|
84
|
2,013
|
4/14/2022
|
85
|
2,013
|
4/18/2022
|
86
|
2,013
|
4/19/2022
|
87
|
2,013
|
4/20/2022
|
88
|
2,013
|
4/21/2022
|
89
|
2,013
|
4/22/2022
|
90
|
2,013
|
4/25/2022
|
91
|
2,013
|
4/26/2022
|
92
|
2,013
|
4/27/2022
|
93
|
2,013
|
4/28/2022
|
94
|
2,013
|
4/29/2022
|
95
|
2,013
|
5/2/2022
|
96
|
2,013
|
5/3/2022
|
97
|
2,013
|
5/4/2022
|
98
|
2,013
|
5/5/2022
|
99
|
2,013
|
5/6/2022
|
100
|
2,013
|
5/9/2022
|
To:
|
11780 U.S. Highway 1, Suite 600
Palm Beach Gardens, Florida 33408
|
From:
|
|
Re:
|
Additional Issuer Warrant Transaction
|
Date:
|
|
Trade Date:
|
September 10, 2015
|
|
Effective Date:
|
September 15, 2015, or such other date as agreed between the parties, subject to Section 8(k) below
|
|
Components:
|
The Transaction will be divided into individual Components, each with the terms set forth in this Confirmation, and, in particular, with the Number of Warrants and Expiration Date set forth in this Confirmation. The payments and deliveries to be made upon settlement of the Transaction will be determined separately for each Component as if each Component were a separate Transaction under the Agreement.
|
|
Warrant Style:
|
European
|
|
Warrant Type:
|
Call
|
|
Seller:
|
Counterparty
|
|
Buyer:
|
Dealer
|
|
Shares:
|
The Common Stock of Counterparty, par value USD
0.33 1/3
(Ticker Symbol: “DY”).
|
|
Number of Warrants:
|
For each Component, as provided in Annex A to this Confirmation.
|
|
Warrant Entitlement:
|
One Share per Warrant
|
|
Strike Price:
|
USD130.4275
|
|
Notwithstanding anything to the contrary in the Agreement, this Confirmation or the Equity Definitions, in no event shall the Strike Price be subject to adjustment to the extent that, after giving effect to such adjustment, the Strike Price would be less than USD 74.53, except for any adjustment pursuant to the terms of this Confirmation and the
|
|
Number of Shares:
|
As of any date, a number of Shares equal to the product of the Number of Warrants and the Warrant Entitlement.
|
|
Premium:
|
USD2,002,000.00
|
|
Premium Payment Date:
|
The Effective Date
|
|
Exchange:
|
New York Stock Exchange
|
|
Related Exchange:
|
All Exchanges
|
|
Expiration Time:
|
Valuation Time
|
|
Expiration Date:
|
As provided in
Annex A
to this Confirmation (or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day that is not already an Expiration Date for another Component);
provided
that if that date is a Disrupted Day, the Expiration Date for such Component shall be the first succeeding Scheduled Trading Day that is not a Disrupted Day and is not or is not deemed to be an Expiration Date in respect of any other Component of the Transaction hereunder; and
provided further
that if the Expiration Date has not occurred pursuant to the preceding proviso as of the Final Disruption Date, the Calculation Agent shall have the right to elect, in its sole discretion, that the Final Disruption Date shall be the Expiration Date (irrespective of whether such date is an Expiration Date in respect of any other Component for the Transaction). Notwithstanding the foregoing and anything to the contrary in the Equity Definitions, if a Market Disruption Event occurs on any Expiration Date, the Calculation Agent may determine that such Expiration Date is a Disrupted Day only in part, in which case the Calculation Agent shall make adjustments to the Number of Warrants for the relevant Component for which such day shall be the Expiration Date, shall designate the Scheduled Trading Day determined in the manner described in the immediately preceding sentence as the Expiration Date for the remaining Warrants for such Component and may determine the VWAP Price based on transactions in the Shares effected before the relevant Market Disruption Event occurred and/or after the relevant Market Disruption Event ended. Any Scheduled Trading Day on which, as of the date hereof, the Exchange is scheduled to close prior to its normal close of trading shall be deemed not to be a Scheduled Trading Day; if a closure of the Exchange prior to its normal close of trading on any Scheduled Trading Day is scheduled following the date hereof, then such Scheduled
|
|
Market Disruption Event:
|
Section 6.3(a) of the Equity Definitions is hereby amended by (A) deleting the words “during the one hour period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be,” in clause (ii) thereof and (B) by replacing the words “or (iii) an Early Closure.” therein with “(iii) an Early Closure, or (iv) a Regulatory Disruption that Dealer has elected, by notice to Counterparty, to deem to be a Market Disruption Event.”
|
|
Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the term “Scheduled Closing Time” in the fourth line thereof.
|
|
Regulatory Disruption:
|
Any event that Dealer, in its good faith and reasonable discretion (based on advice of counsel), determines makes it appropriate, with regard to (x) any legal, regulatory or self-regulatory requirements or (y) related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer generally applicable in similar situations and applied in a non-discriminatory manner), for Dealer to refrain from or decrease any market activity in connection with the Transaction. If Dealer determines in good faith that a Market Disruption Event has occurred on any Scheduled Trading Day solely pursuant to clause (y) above and solely with respect to voluntarily adopted policies and procedures, such Scheduled Trading Day will be a Disrupted Day in full.
|
|
Automatic Exercise:
|
Applicable; and means that the Number of Warrants for the corresponding Expiration Date will be deemed to be automatically exercised at the Expiration Time on such Expiration Date unless Dealer notifies Seller (by telephone or in writing) prior to the Expiration Time on such Expiration Date that it does not wish Automatic Exercise to occur, in which case Automatic Exercise will not apply to such Expiration Date.
|
|
Giving Notice:
|
As provided in Section 6(a) below.
|
|
Settlement Currency:
|
USD
|
|
Net Share Settlement:
|
On each Settlement Date, Counterparty shall deliver to Dealer a number of Shares equal to the Number of Shares to be Delivered for such Settlement Date to the account specified by Dealer and cash in lieu of any fractional Share valued at the Relevant Price on the Valuation Date corresponding to such Settlement Date. If, in the reasonable opinion of Counterparty or Dealer, based on advice of counsel, for any reason, the Shares deliverable upon Net Share Settlement would not be immediately freely transferable by Dealer under Rule 144 under the Securities Act of 1933, as amended (the “
Securities Act
”), then Dealer may elect to either (x) accept delivery of such Shares notwithstanding any restriction on transfer or (y) accept delivery of such Shares subject to a discount and have the provisions set forth in Section 8(b) below apply.
|
|
The Number of Shares to be Delivered shall be delivered by Counterparty to Dealer no later than 12:00 noon (local time in New York City) on the relevant Settlement Date.
|
Number of Shares to be Delivered:
|
In respect of any Exercise Date, subject to the last sentence of Section 9.5 of the Equity Definitions, the product of (i) the number of Warrants exercised or deemed exercised on such Exercise Date, (ii) the Warrant Entitlement and (iii) (A) the excess of the VWAP Price on the Valuation Date occurring in respect of such Exercise Date over the Strike Price (or, if there is no such excess, zero)
divided by
(B) such VWAP Price.
|
|
VWAP Price:
|
For any Exchange Business Day, as determined by the Calculation Agent based on the New York Volume Weighted Average Price per Share for the regular trading session (including any extensions thereof)
of the Exchange on such Exchange Business Day (without regard to pre-open or after hours trading outside of such regular trading session), as published by Bloomberg at 4:15 P.M., New York City time (or 15 minutes following the end of any extension of the regular trading session), on such Exchange Business Day,
on Bloomberg page “DY.N <Equity> AQR” (or any successor thereto)
(or if such published volume weighted average price is unavailable or is manifestly incorrect, the market value of one Share on such Exchange Business Day,
as determined by the Calculation Agent using a volume weighted method)
.
|
|
Other Applicable Provisions:
|
The provisions of Sections 9.1(c), 9.4, 9.8, 9.9, 9.10, 9.11 and 9.12 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
|
|
Method of Adjustment:
|
Calculation Agent Adjustment;
provided
that in respect of an Extraordinary Dividend, “Calculation Agent Adjustment” shall be as described in the provision below. For the avoidance of doubt, Calculation Agent Adjustment (including, without limitation, in respect of Extraordinary Dividends) shall continue to apply until the obligations of the parties (including any obligations of Counterparty pursuant to Section 8(e) below) under the Transaction have been satisfied in full.
|
|
Extraordinary Dividend:
|
Any cash dividend or distribution on the Shares with an ex-dividend date occurring on or after the Trade Date and on or prior to the Expiration Date for the Component with the latest Expiration Date (or, if any Deficit Shares are owed pursuant to Section 8(e) below, such later date on which Counterparty’s obligations under this Transaction have been satisfied in full).
|
Extraordinary Dividend Adjustment:
|
If at any time during the period from and including the Trade Date, to and including the Expiration Date for the Component with the latest Expiration Date (or, if any Deficit Shares are owed pursuant to Section 8(e) below, such later date on which Counterparty’s obligations under this Transaction have been satisfied in full), an ex-dividend date for an Extraordinary Dividend occurs or is deemed to occur, then the Calculation Agent will make adjustments to any one or more of the Strike Price, the Number of Warrants, the Warrant Entitlement and/or any other variable relevant to the exercise, settlement, payment or other terms of the Transaction as it determines appropriate, in its commercially reasonable discretion, to account for the economic effect on the Transaction of such Extraordinary Dividend.
|
|
New Shares:
|
In the definition of New Shares in Section 12.1(i) of the Equity Definitions, the text in clause (i) thereof shall be deleted in its entirety and replaced with “publicly quoted, traded or listed on any of The New York Stock Exchange, The NASDAQ Global Market or The NASDAQ Global Select Market (or their respective successors) and of a corporation that is
|
|
Merger Event:
|
Applicable;
provided
that if an event occurs that constitutes both a Merger Event under Section 12.1(b) of the Equity Definitions and an Additional Termination Event under Section 8(j)(iv) of this Confirmation,
Dealer may elect, in its commercially reasonable judgment, whether the provisions of Section 12.2 of the Equity Definitions or Section
8(j)(iv)
will apply
.
|
|
Consequences of Merger Events:
|
|
(a)
|
Share-for-Share:
|
Modified Calculation Agent Adjustment
|
|
(b)
|
Share-for-Other:
|
Cancellation and Payment (Calculation Agent Determination)
|
|
(c)
|
Share-for-Combined:
|
Cancellation and Payment (Calculation Agent Determination);
provided
that the Calculation Agent may elect Component Adjustment for all or part of the Transaction.
|
|
Tender Offer:
|
Applicable;
provided
that if an event occurs that constitutes both a Tender Offer under Section 12.1(d) of the Equity Definitions and an Additional Termination Event under Section 8(j)(iii) of this Confirmation,
Dealer may elect, in its commercially reasonable judgment, whether the provisions of Section 12.3 of the Equity Definitions or Section
8(j)(iii)
will apply
.
|
|
Consequences of Tender Offers:
|
|
(a)
|
Share-for-Share:
|
Modified Calculation Agent Adjustment
|
|
(b)
|
Share-for-Other:
|
Modified Calculation Agent Adjustment
|
|
(c)
|
Share-for-Combined:
|
Modified Calculation Agent Adjustment
|
Consequences of Announcement Events:
|
Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions;
provided
that, in respect of an Announcement Event, references to “Tender Offer” shall be replaced by references to “Announcement Event” and references to “Tender Offer Date” shall be replaced by references to “date of such Announcement Event”. An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, to which Article 12 of the Equity Definitions is applicable.
|
|
Announcement Event:
|
(i) The public announcement of any Merger Event or Tender Offer, the intention to enter into a Merger Event or Tender Offer or any transaction or event that, if completed, would constitute a Merger Event or Tender Offer, (ii) the public announcement by Counterparty or any of its subsidiaries of any acquisition where the aggregate consideration exceeds 15% of the market capitalization of Counterparty as of the date of such announcement
|
|
|
(an “
Acquisition Transaction
”), (iii) the public announcement by Counterparty of an intention to solicit or enter into, or to explore strategic alternatives or other similar undertaking that may include, a Merger Event, Tender Offer or Acquisition Transaction or (iv) any subsequent public announcement 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, whether such announcement is made by Counterparty or a third party);
provided
that, 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.
|
|
Announcement Date:
|
The definition of “Announcement Date” in Section 12.1 of the Equity Definitions is hereby amended by (i) replacing the words “a firm” with the word “any” in the second and fourth lines thereof, (ii) replacing the word “leads to the” with the words “, if completed, would lead to a” in the third and the fifth lines thereof, (iii) replacing the words “voting shares” with the word “Shares” in the fifth line thereof, and (iv) inserting the words “by any entity” after the word “announcement” in the second and the fourth lines thereof.
|
|
Agent Adjustment:
|
If, in respect of a Merger Event, the Counterparty under the Transaction following such Merger Event will not be the issuer of the New Shares, the Dealer may elect (in its sole discretion) for Cancellation and Payment (Calculation Agent Determination) to apply. In addition, if, in respect of any Merger Event to which Modified Calculation Agent Adjustment applies, the adjustments to be made in accordance with Section 12.2(e)(i) of the Equity Definitions would result in Counterparty being different from the issuer of the Shares, then with respect to such Merger Event, as a condition precedent to the adjustments contemplated in Section 12.2(e)(i) of the Equity Definitions, Counterparty and the issuer of the Shares shall, prior to the Merger Date, have entered into such documentation containing representations, warranties and agreements relating to securities law and other issues as requested by Dealer that Dealer has determined, in its reasonable discretion, to be reasonably necessary or appropriate to allow Dealer to continue as a party to the Transaction, as adjusted under Section 12.2(e)(i) of the Equity Definitions,
|
|
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 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 such exchange or quotation system, such exchange or quotation system shall thereafter be deemed to be the Exchange.
|
|
Additional Termination Event(s):
|
Notwithstanding anything to the contrary in the Equity Definitions, if, as a result of an Extraordinary Event, any Transaction would be cancelled or terminated (whether in whole or in part) pursuant to Article 12 of the Equity Definitions, an Additional Termination Event (with such terminated Transaction(s) (or portions thereof) being the Affected Transaction(s) and Counterparty being the sole Affected Party) shall be deemed to occur, and, in lieu of Sections 12.7, 12.8 and 12.9 of the Equity Definitions, Section 6 of the Agreement shall apply to such Affected Transaction(s).
|
|
(a)
|
Change in Law:
|
Applicable; provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the phrase “the interpretation” in the third line thereof with the phrase “, or public announcement of, the formal or informal interpretation”, (ii) by adding the phrase “and/or Hedge Position” after the word “Shares” in clause (X) thereof and (iii) by immediately following the word “Transaction” in clause (X) thereof, adding the phrase “in the manner contemplated by the Hedging Party on the Trade Date”; provided, further that (i) any determination as to whether (A) the adoption of or any change in any applicable law or regulation (including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute) or (B) the promulgation of or any change in the interpretation by any court, tribunal or regulatory authority with competent jurisdiction of any applicable law or regulation (including any action taken by a taxing authority), in each case, constitutes a “Change in Law” shall be made without regard to Section 739 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 or any similar legal certainty provision in any legislation enacted, or rule or regulation promulgated, on or after the Trade Date, and (ii) Section 12.9(a)(ii) of the Equity Definitions is hereby amended by replacing the parenthetical beginning after the word “regulation” in the second line thereof with the phrase “(including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute)”.
|
|
(b)
|
Failure to Deliver:
|
Not Applicable
|
|
(c)
|
Insolvency Filing:
|
Applicable
|
|
(d)
|
Hedging Disruption:
|
Applicable;
provided
that
|
|
(i)
|
Section 12.9(a)(v) of the Equity Definitions is hereby modified by:
|
|
(a)
|
inserting the following words at the end of clause (A) thereof: “in the manner contemplated by the Hedging Party on the Trade Date”;
|
|
(b)
|
inserting the following two phrases at the end of such Section:
|
|
“For the avoidance of doubt, the term “equity price risk” shall be deemed to include, but shall not be limited to, stock price and volatility risk. And, for the further avoidance of doubt, the transactions or assets referred to in phrases (A) or (B) above must be available on commercially reasonable pricing and other terms.”;
|
|
(ii)
|
Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line thereof, after the words “to terminate the Transaction”, the words “or a portion of the Transaction affected by such Hedging Disruption”.
|
|
(e)
|
Increased Cost of Hedging:
|
Applicable
|
|
(f)
|
Loss of Stock Borrow:
|
Applicable
|
|
Maximum Stock Loan Rate:
|
200 basis points per annum
|
|
(g)
|
Increased Cost of Stock Borrow:
|
Applicable
|
|
Initial Stock Loan Rate:
|
Prior to September 16, 2021, zero basis points per annum, and thereafter, 25 basis points per annum.
|
|
Hedging Party:
|
Dealer for all applicable Additional Disruption Events.
|
|
Determining Party:
|
Dealer for all applicable Additional Disruption Events.
|
|
Non-Reliance:
|
Applicable
|
|
Regarding Hedging Activities:
|
Applicable
|
|
Additional Acknowledgments:
|
Applicable
|
|
3.
|
Calculation Agent
:
|
Dealer;
provided
that all calculations and determinations made by the Calculation Agent shall be made in good faith and in a commercially reasonable manner;
provided further
that, upon receipt of written request from Counterparty, the Calculation Agent shall promptly provide Counterparty with a written explanation describing in reasonable detail any calculation, adjustment or determination made by it (including any quotations, market data or information from internal or external sources used in making such calculation, adjustment or determination, as the case may be, but without disclosing Dealer’s proprietary models or other information that may be proprietary or subject to contractual, legal or regulatory obligations to not disclose such information), and shall use commercially reasonable efforts to provide such written explanation within five Exchange Business Days from the receipt of such request.
|
4.
|
Account Details
:
|
|
Dealer Payment Instructions:
|
|
Account for delivery of Shares to Dealer: To be provided by Dealer
|
|
Counterparty Payment Instructions: To be provided by Counterparty.
|
5.
|
Offices
:
|
6.
|
Notices
: For purposes of this Confirmation:
|
To:
|
Dycom Industries, Inc.
11780 U.S. Highway 1, Suite 600
Palm Beach Gardens, Florida 33408
|
Attn:
Telephone:
Facsimile:
|
General Counsel
(561) 627-7171
(561) 627-7709
|
Share Termination Alternative:
|
If applicable, means that Counterparty shall deliver to Dealer the Share Termination Delivery Property on the date on which the Payment Obligation would otherwise be due pursuant to the Transaction, including, without limitation, pursuant to Section 12.2, 12.3, 12.6, 12.7 or 12.9 of the Equity Definitions or Section 6(d)(ii) of the Agreement, as applicable, or such later date or dates as the Calculation Agent may reasonably determine (the “
Share Termination Payment Date
”), in satisfaction of the Payment Obligation.
|
Property:
|
A number of Share Termination Delivery Units, as calculated by the Calculation Agent, equal to the Payment Obligation divided by the Share Termination Unit Price. The Calculation Agent shall adjust the Share Termination Delivery Property by replacing any fractional portion of the aggregate amount of a security therein with an amount of
|
Share Termination Unit Price:
|
The value of property contained in one Share Termination Delivery Unit on the date such Share Termination Delivery Units are to be delivered as Share Termination Delivery Property, as determined by the Calculation Agent in its discretion by commercially reasonable means and notified by the Calculation Agent to Counterparty at the time of notification of the Payment Obligation.
|
Share Termination Delivery Unit:
|
In the case of a Termination Event, Event of Default, Delisting or Additional Disruption Event, one Share or, in the case of an Insolvency, Nationalization, Merger Event or Tender Offer, one Share or a unit consisting of the number or amount of each type of property received by a holder of one Share (without consideration of any requirement to pay cash or other consideration in lieu of fractional amounts of any securities) in such Insolvency, Nationalization, Merger Event or Tender Offer. If such Insolvency, Nationalization, Merger Event or Tender Offer involves a choice of consideration to be received by holders, such holder shall be deemed to have elected to receive the maximum possible amount of cash.
|
Failure to Deliver:
|
Not Applicable
|
Other Applicable Provisions:
|
If Share Termination Alternative is applicable, the provisions of Sections 9.1(c), 9.8, 9.9, 9.10, 9.11 and 9.12 of the Equity Definitions will be applicable as if “Physical Settlement” applied to the Transaction, except that all references to “Shares” shall be read as references to “Share Termination Delivery Units”;
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 as a result of the fact that Counterparty is the issuer of any Share Termination Delivery Units (or any security forming a part thereof). If, in the reasonable opinion of Counterparty or Dealer, based on advice of counsel, for any reason, any securities comprising the Share Termination Delivery Units deliverable pursuant to this Section 8(a) would not be immediately freely transferable by Dealer under Rule 144 under the Securities Act, then Dealer may elect to either (x) permit delivery of such securities notwithstanding any restriction on transfer or (y) have the provisions set forth in Section 8(b) below apply.
|
Yours faithfully, | ||||
WELLS FARGO BANK, NATIONAL ASSOCIATION | ||||
By: | /s/ Thomas Yates | |||
Name: | Thomas Yates | |||
Title: | Managing Director | |||
Agreed and Accepted By: | |||
DYCOM INDUSTRIES , INC. | |||
By: | /s/ H. Andrew DeFerrari | ||
Name: | H. Andrew DeFerrari | ||
Title: | Senior Vice President & Chief Financial Officer | ||
Component Number
|
Number of Warrants
|
Expiration Date
|
1
|
1,341
|
12/15/2021
|
2
|
1,341
|
12/16/2021
|
3
|
1,341
|
12/17/2021
|
4
|
1,341
|
12/20/2021
|
5
|
1,341
|
12/21/2021
|
6
|
1,341
|
12/22/2021
|
7
|
1,341
|
12/23/2021
|
8
|
1,341
|
12/27/2021
|
9
|
1,341
|
12/28/2021
|
10
|
1,341
|
12/29/2021
|
11
|
1,341
|
12/30/2021
|
12
|
1,341
|
12/31/2021
|
13
|
1,341
|
1/3/2022
|
14
|
1,341
|
1/4/2022
|
15
|
1,341
|
1/5/2022
|
16
|
1,341
|
1/6/2022
|
17
|
1,341
|
1/7/2022
|
18
|
1,341
|
1/10/2022
|
19
|
1,341
|
1/11/2022
|
20
|
1,341
|
1/12/2022
|
21
|
1,341
|
1/13/2022
|
22
|
1,341
|
1/14/2022
|
23
|
1,341
|
1/18/2022
|
24
|
1,341
|
1/19/2022
|
25
|
1,341
|
1/20/2022
|
26
|
1,342
|
1/21/2022
|
27
|
1,342
|
1/24/2022
|
28
|
1,342
|
1/25/2022
|
29
|
1,342
|
1/26/2022
|
30
|
1,342
|
1/27/2022
|
31
|
1,342
|
1/28/2022
|
32
|
1,342
|
1/31/2022
|
33
|
1,342
|
2/1/2022
|
34
|
1,342
|
2/2/2022
|
35
|
1,342
|
2/3/2022
|
36
|
1,342
|
2/4/2022
|
37
|
1,342
|
2/7/2022
|
38
|
1,342
|
2/8/2022
|
39
|
1,342
|
2/9/2022
|
40
|
1,342
|
2/10/2022
|
41
|
1,342
|
2/11/2022
|
42
|
1,342
|
2/14/2022
|
43
|
1,342
|
2/15/2022
|
44
|
1,342
|
2/16/2022
|
45
|
1,342
|
2/17/2022
|
46
|
1,342
|
2/18/2022
|
47
|
1,342
|
2/22/2022
|
48
|
1,342
|
2/23/2022
|
49
|
1,342
|
2/24/2022
|
50
|
1,342
|
2/25/2022
|
51
|
1,342
|
2/28/2022
|
52
|
1,342
|
3/1/2022
|
53
|
1,342
|
3/2/2022
|
54
|
1,342
|
3/3/2022
|
55
|
1,342
|
3/4/2022
|
56
|
1,342
|
3/7/2022
|
57
|
1,342
|
3/8/2022
|
58
|
1,342
|
3/9/2022
|
59
|
1,342
|
3/10/2022
|
60
|
1,342
|
3/11/2022
|
61
|
1,342
|
3/14/2022
|
62
|
1,342
|
3/15/2022
|
63
|
1,342
|
3/16/2022
|
64
|
1,342
|
3/17/2022
|
65
|
1,342
|
3/18/2022
|
66
|
1,342
|
3/21/2022
|
67
|
1,342
|
3/22/2022
|
68
|
1,342
|
3/23/2022
|
69
|
1,342
|
3/24/2022
|
70
|
1,342
|
3/25/2022
|
71
|
1,342
|
3/28/2022
|
72
|
1,342
|
3/29/2022
|
73
|
1,342
|
3/30/2022
|
74
|
1,342
|
3/31/2022
|
75
|
1,342
|
4/1/2022
|
76
|
1,342
|
4/4/2022
|
77
|
1,342
|
4/5/2022
|
78
|
1,342
|
4/6/2022
|
79
|
1,342
|
4/7/2022
|
80
|
1,342
|
4/8/2022
|
81
|
1,342
|
4/11/2022
|
82
|
1,342
|
4/12/2022
|
83
|
1,342
|
4/13/2022
|
84
|
1,342
|
4/14/2022
|
85
|
1,342
|
4/18/2022
|
86
|
1,342
|
4/19/2022
|
87
|
1,342
|
4/20/2022
|
88
|
1,342
|
4/21/2022
|
89
|
1,342
|
4/22/2022
|
90
|
1,342
|
4/25/2022
|
91
|
1,342
|
4/26/2022
|
92
|
1,342
|
4/27/2022
|
93
|
1,342
|
4/28/2022
|
94
|
1,342
|
4/29/2022
|
95
|
1,342
|
5/2/2022
|
96
|
1,342
|
5/3/2022
|
97
|
1,342
|
5/4/2022
|
98
|
1,342
|
5/5/2022
|
99
|
1,342
|
5/6/2022
|
100
|
1,342
|
5/9/2022
|
FOR IMMEDIATE RELEASE
|
Contact:
|
Steven E. Nielsen, President and CEO
|
H. Andrew DeFerrari, Senior Vice President and CFO
|
||
(561) 627-7171
|
Palm Beach Gardens, Florida
|
September 15, 2015
|