Delaware | ||||||||||||||
(State or Other Jurisdiction of Incorporation) | ||||||||||||||
001-33554 |
76-0168604 |
|||||||||||||
(Commission File Number) |
(IRS Employer Identification No.) |
3200 Kirby Drive, Suite 600 |
Houston | TX |
77098 |
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(Address of Principal Executive Offices) |
(Zip Code) |
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Registrant’s telephone number, including area code |
(713) | 335-5151 | ||||||||||||||||||||||||
(Former Name or Former Address, if Changed Since Last Report) |
☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Title of each class | Trading symbol(s) | Name of each exchange on which registered | ||||||||||||
Common stock $0.001 par value per share | PRO | New York Stock Exchange |
Item 1.01 | Entry into a Material Definitive Agreement |
Item 2.03 | Creating 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 9.01 | Financial Statements and Exhibits. |
Exhibit No. | Exhibit Description | |||||||
PROS HOLDINGS, INC. |
||||||||
August 23, 2023 | /s/ Damian W. Olthoff | |||||||
Damian W. Olthoff | ||||||||
General Counsel and Secretary |
(a) | Generally | |||||||||||||||||||
(b) | The Closing | |||||||||||||||||||
(a) | Due Formation, Valid Existence and Good Standing: Power to Perform Obligations | |||||||||||||||||||
(b) | Deliver Free of Liens | |||||||||||||||||||
(c) | Listing of Common Stock | |||||||||||||||||||
(d) | Securities Act Matters | |||||||||||||||||||
(e) | Enforceability of New Notes | |||||||||||||||||||
(f) | Enforceability of 2027 Notes Indenture | |||||||||||||||||||
(g) | Common Stock Issuable Upon Conversion of 2027 Notes | |||||||||||||||||||
(h) | Trust Indenture Act | |||||||||||||||||||
(i) | Non-Contravention | |||||||||||||||||||
(j) | No Consents | |||||||||||||||||||
(k) | Authorization, Execution and Delivery of This Exchange Agreement | |||||||||||||||||||
(l) | Investment Company Act | |||||||||||||||||||
(m) | Accuracy of Covered SEC Filings | |||||||||||||||||||
(n) | The Closing | |||||||||||||||||||
(a) | Power to Perform Obligations and Bind Accounts; Survival of Authority | |||||||||||||||||||
(b) | Ownership of Existing Notes | |||||||||||||||||||
(c) | Rule 144 Matters | |||||||||||||||||||
(d) | Passage of Good Title: No Liens | |||||||||||||||||||
(e) | Non-Contravention | |||||||||||||||||||
(f) | Jurisdiction of Residence | |||||||||||||||||||
(g) | Compliance with Certain Laws; No Consents | |||||||||||||||||||
(h) | Acknowledgement of Risks; Investment Sophistication | |||||||||||||||||||
(i) | No View to Distribution; No Registration | |||||||||||||||||||
(j) | Information Provided | |||||||||||||||||||
(k) | No Investment, Tax or Other Advice | |||||||||||||||||||
(l) | Investment Decision Matters | |||||||||||||||||||
(m) | Due Diligence | |||||||||||||||||||
(n) | No Regulatory Agency Recommendation or Approval | |||||||||||||||||||
(o) | Qualified Institution Buyer Status | |||||||||||||||||||
(p) | Mutual Negotiation | |||||||||||||||||||
(q) | Financial Adviser Fee | |||||||||||||||||||
(r) | Additional Documentation | |||||||||||||||||||
(s) | Bring-Down of Representations and Warranties |
(t) | New York Stock Exchange Matters | |||||||||||||||||||
(u) | Settlement Instructions | |||||||||||||||||||
(v) | Wall-Cross Matters | |||||||||||||||||||
(w) | No Reliance on Matthews South | |||||||||||||||||||
(x) | Concurrent Private Placement | |||||||||||||||||||
(a) | Conditions to the Company's Obligations | |||||||||||||||||||
(b) | Conditions to the Investor's Obligations | |||||||||||||||||||
(a) | Waiver; Amendments | |||||||||||||||||||
(b) | Assignability | |||||||||||||||||||
(c) | Further Instruments and Acts | |||||||||||||||||||
(d) | Waiver of Jury Trial | |||||||||||||||||||
(e) | Governing Law | |||||||||||||||||||
(f) | Section and Other Headings | |||||||||||||||||||
(g) | Counterparts | |||||||||||||||||||
(h) | Notices | |||||||||||||||||||
(i) | Binding Effect | |||||||||||||||||||
(j) | Notification of Changes | |||||||||||||||||||
(k) | Severability | |||||||||||||||||||
(l) | Entire Agreement | |||||||||||||||||||
(m) | Reliance by Matthews South | |||||||||||||||||||
EXHIBITS | ||||||||||||||||||||
Exhibit A: | Exchanging Investor Information | A-1 | ||||||||||||||||||
Exhibit B: | Exchange Procedures | B-1 | ||||||||||||||||||
Exhibit C: | Tax Matters | C-1 |
Investor: | |||||||||||||||||
Legal Name | |||||||||||||||||
By: | |||||||||||||||||
Name: | |||||||||||||||||
Title | |||||||||||||||||
Investor Address: | Taxpayer Identification Number: | ||||||||||||||||
Telephone Number: | |||||||||||||||||
Country (and, if applicable, State) of Residence: | |||||||||||||||||
Aggregate Principal Amount of Existing Notes to be Exchanged by All Exchanging Investors
(must be an integral multiple of $1,000):
| |||||||||||||||||
$ | ,000 |
PROS HOLDINGS, INC. | |||||||||||||||||
By: | |||||||||||||||||
Name: | |||||||||||||||||
Title: |
Daily 10b-18 VWAP | Daily Exchange Ratio | ||||
$45.00 | 0.02700 | ||||
$44.00 | 0.02739 | ||||
$43.00 | 0.02780 | ||||
$42.00 | 0.02821 | ||||
$41.00 | 0.02864 | ||||
$40.00 | 0.02909 | ||||
$39.00 | 0.02954 | ||||
$38.00 | 0.03002 | ||||
$37.00 | 0.03050 | ||||
$36.00 | 0.03101 | ||||
$34.97 | 0.03154 | ||||
$34.00 | 0.03207 | ||||
$33.00 | 0.03262 | ||||
$32.00 | 0.03320 | ||||
$31.00 | 0.03380 | ||||
$30.00 | 0.03442 | ||||
$29.00 | 0.03506 | ||||
$28.00 | 0.03573 | ||||
$27.00 | 0.03642 | ||||
$26.00 | 0.03714 | ||||
$25.00 | 0.03789 |
Exchanging Investor Information | ||||||||||||||||||||
(Complete the Following Form for Each Exchanging Investor) | ||||||||||||||||||||
Legal Name of Exchanging Holder: | ||||||||||||||||||||
Aggregate principal amount of Existing Notes to be exchanged | ||||||||||||||||||||
(must be an integral multiple of $1,000): | $ | ,000 | ||||||||||||||||||
Exchanging Holder's Address: | ||||||||||||||||||||
Telephone: | ||||||||||||||||||||
Country (and, if applicable, State) of Residence: |
||||||||||||||||||||
Taxpayer Identification Number: | ||||||||||||||||||||
Account for Existing Notes | Account for New 2027 Notes | Wire Instructions for Interest Amount | ||||||||||||||||||
DTC Participant Number: | DTC Participant Number | Bank Routing #: | ||||||||||||||||||
DTC Participant Name: | DTC Participant Name: | SWIFT Code: | ||||||||||||||||||
DTC Participant Phone Number: | DTC Participant Phone Number: | Bank address: | ||||||||||||||||||
DTC Participant Contact Email: | DTC Participant Contact Email: | Account Number: | ||||||||||||||||||
Account # at DTC Participant: | Account Name: | |||||||||||||||||||
To: |
PROS Holdings, Inc.
3200 Kirby Dr., Suite 600
Houston, Texas 77098
|
||||
From: | [Dealer] | ||||
Re: | Capped Call Transaction | ||||
Ref. No: | [__________]1 | ||||
Date: | [•], 2023 |
Trade Date: | [•] | ||||
Effective Date: | [•], or such other date as agreed by the parties in writing. | ||||
Components: | The Transaction will be divided into individual Components, each with the terms set forth in this Confirmation, and, in particular, with the Expiration Date set forth in Schedule A to this Confirmation and the Number of Options set forth in Schedule A to this Confirmation. The exercise, valuation and settlement of the Transaction will be effected separately for each Component as if each Component were a separate Transaction under the Agreement. | ||||
Option Style: | “European”, as described under “Procedures for Exercise” below. | ||||
Option Type: | Call | ||||
Seller: | Dealer | ||||
Buyer: | Counterparty | ||||
Shares: | Common Stock of Counterparty, par value USD$0.001 (Ticker Symbol: “PRO”). | ||||
Number of Options: | For each Component, as provided in Schedule A to this Confirmation.4 | ||||
Option Entitlement: | One Share Per Option | ||||
Strike Price: | USD 41.817 | ||||
Cap Price: | USD 78.90; provided that in no event shall the Cap Price be reduced to an amount less than the Strike Price in connection with any adjustment by the Calculation Agent under this Confirmation. |
||||
Number of Shares: | As of any date, a number of Shares equal to the product of (i) the Number of Options and (ii) the Option Entitlement. | ||||
Initial Premium: | [ ] |
Initial Premium Payment Date: | The Currency Business Day one Settlement Cycle after the Trade Date. On the Initial Premium Payment Date, Counterparty shall pay the Initial Premium to Dealer. | ||||
Final Premium: | An amount in USD as set forth in the Trade Notification, to be equal to the Premium minus the Initial Premium. If the Final Premium is positive, Counterparty shall pay the Final Premium to Dealer on the Final Premium Date. If the Final Premium is negative, Dealer shall pay the absolute value of the Final Premium to Counterparty on the Final Premium Payment Date. Dealer and Counterparty hereby agree that notwithstanding anything to the contrary herein or in the Agreement, following the payment of the Final Premium, no Early Termination Amount or amount determined pursuant to Sections 12.2, 12.3, 12.6, 12.7, 12.8 or 12.9 of the Equity Definitions, or otherwise under the Equity Definitions, shall be payable by Counterparty to Dealer |
||||
Premium: | An amount in USD as set forth in the Trade Notification, to be equal to the product of (i) the Average Per-Share Premium and (ii) the sum of the Number of Options for all Components. Notwithstanding anything to the contrary in the Equity Definitions, the obligation of Counterparty to pay the Premium to Dealer on the Premium Payment Date shall be fully satisfied by the payment of the Initial Premium and, if applicable, the Final Premium on the Initial Premium Payment Date and Final Premium Payment Date, as applicable. |
||||
Per-Share Premium: | For each Relevant Date during the Hedge Period, the “Per-Share Premium” set forth in the grid in Schedule B hereto corresponding to the 10b-18 VWAP Price; provided that (i) if the 10b-18 VWAP Price is between “10b-18 VWAP Prices” set forth in such grid, the “Per-Share Premium” shall be determined by linear interpolation between the “Per-Share Premium” set forth in such grid corresponding to such “10b-18 VWAP Prices” and (ii) if the 10b-18 VWAP Price is less than the lowest “10b-18 VWAP Price” or greater than the highest “10b-18 VWAP Price”, as applicable, set forth in such grid, the Per-Share Premium will be determined by the Calculation Agent in a commercially reasonable manner consistent with the methodology used in creating such grid. |
||||
Average Per-Share Premium: | An amount in USD as set forth in the Trade Notification, to be equal to the arithmetic average of the Per-Share Premiums for each Relevant Date during the Hedge Period. | ||||
Final Premium Payment Date: | The Currency Business Day immediately following the Hedge Period End Date. | ||||
Exchange: | The New York Stock Exchange | ||||
Related Exchange: | All Exchanges; provided that Section 1.26 of the Equity Definitions shall be amended to add the words “United States” before the word “exchange” in the tenth line of such Section. | ||||
Initial Hedging: | |||||
Hedge Period: | The period from and including the Hedge Period Start Date to and including the Hedge Period End Date. Promptly following the Hedge Period End Date, Dealer shall deliver the Trade Notification to Counterparty. | ||||
Hedge Period Start Date: | [ ] |
||||
Hedge Period End Date: | [ ] |
||||
Relevant Scheduled Trading Day: | Each Scheduled Trading Day set forth in Schedule C, and each [___] Scheduled Trading Day thereafter. |
Relevant Dates: | Any date that is both an Exchange Business Day and a Relevant Scheduled Trading Day. | ||||
10b-18 VWAP Price: | For any Exchange Business Day, the composite volume weighted average price per Share of Rule 10b-18 eligible trades for the regular trading session (including any extensions thereof) of the Exchange on the Exchange Business Day (without regard to pre-open or after hours trading outside of such regular trading session for such Exchange Business Day) 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 “PRO <Equity> AQR_SEC” (or any successor thereto), or if such price is not so reported on such Exchange Business Day for any reason or the Calculation Agent determines that such price is clearly erroneous, such 10b-18 VWAP Price shall be as determined by the Calculation Agent. |
Valuation Disruption: |
For purposes of the Hedge Period, the definition of “Market Disruption Event” in Section 6.3(a) of the Equity Definitions is hereby amended by deleting the words “at any time 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” and inserting the words “at any time on any Scheduled Trading Day during the Hedge Period” after the word “material,” in the third line thereof.
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.
In the event that Dealer concludes, in its reasonable discretion based on the advice of counsel, that it is appropriate with respect to any legal, regulatory or self-regulatory requirements or related policies and procedures generally applied by Dealer to transactions similar to the Transaction, for it to refrain from or decrease any Hedging Activities relating to the Transaction on any Relevant Scheduled Trading Day or Days during the Hedge Period, Dealer may by written notice to Counterparty, elect to deem that a Market Disruption Event has occurred and will be continuing on such Relevant Scheduled Trading Day or Days.
If any such Disrupted Day is a Disrupted Day because of a Market Disruption Event (or a deemed Market Disruption Event as provided herein), the Calculation Agent shall determine whether (i) such Disrupted Day is a Disrupted Day in full, in which case the Per-Share Premium for such Disrupted Day shall not be included for purposes of determining the Average Per-Share Premium or (ii) such Disrupted Day is a Disrupted Day only in part, in which case the Per-Share Premium for such Disrupted Day shall be determined by the Calculation Agent based on, in lieu of the 10b-18 VWAP Price for such day, Rule 10b-18 eligible transactions in the Shares on such Disrupted Day taking into account the nature and duration of such Market Disruption Event, and the weighting of the Per-Share Premium for the Relevant Scheduled Trading Days during the Hedge Period shall be adjusted by the Calculation Agent for purposes of determining the Average Per-Share Premium with such adjustments based on, among other factors, the duration of any Market Disruption Event and the volume, historical trading patterns and price of the Shares. Any Exchange Business 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 an Exchange Business Day or Relevant Scheduled Trading Day; if a closure of the Exchange prior to its normal close of trading on any Relevant Scheduled Trading Day is scheduled following the date hereof, then such Relevant Scheduled Trading Day shall be deemed to be a Disrupted Day in full.
In addition, notwithstanding anything to the contrary in this Confirmation, if a Disrupted Day (whether a Disrupted Day in full, a Disrupted Day in part and/or a Disrupted Day as a result of a deemed Market Disruption Event as provided herein) occurs and Dealer is unable to establish its initial commercially reasonable Hedge Position for the full number of Shares in respect of which Dealer expected to establish its initial commercially reasonable Hedge Position on the date hereof, the Calculation Agent may extent the Initial Hedge Period by one Relevant Scheduled Trading Day for each such Disrupted Day.
|
||||
Procedures for Exercise: | |||||
Expiration Time: | The Valuation Time |
Expiration Date: | For any Component, as provided in Schedule A to this Confirmation (or, if such date is not a Scheduled Valid Day, the next following Scheduled Valid 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 Valid 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 in no event shall the Expiration Date be postponed to a date later than the Final Termination Date and, notwithstanding anything to the contrary in this Confirmation or the Equity Definitions, if the Expiration Date is a Disrupted Day that occurs on the Final Termination Date, the Relevant Price for such Expiration Date shall be the prevailing market value per Share determined by the Calculation Agent in a good faith and commercially reasonable manner. 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 in a good faith and commercially reasonable manner that such Expiration Date is a Disrupted Day only in part, in which case the Calculation Agent shall make commercially reasonable adjustments to the Number of Options for the relevant Component for which such day shall be the Expiration Date, shall designate the Scheduled Valid Day determined in the manner described in the immediately preceding sentence as the Expiration Date for the remaining Options for such Component and may determine the Relevant Price based on transactions in the Shares on such Disrupted Day taking into account the nature and duration of such Market Disruption Event on such day. Any Scheduled Valid 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 Valid Day; if a closure of the Exchange prior to its normal close of trading on any Scheduled Valid Day is scheduled following the date hereof, then such Scheduled Valid 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 Termination Date: | September 23, 2027 | ||||
Automatic Exercise: | Applicable; and means that the Number of Options for the relevant Component will be deemed to be automatically exercised at the Expiration Time on the Expiration Date for such Component if at such time such Component is In-the-Money, unless Buyer notifies Seller (in writing) prior to the Expiration Time on such Expiration Date that it does not wish Automatic Exercise to occur with respect to such Component, in which case Automatic Exercise will not apply with respect to such Component. “In-the-Money” means, in respect of any Component, that the Relevant Price on the Expiration Date for such Component is greater than the Strike Price for such Component. |
||||
Valuation Time: | At the close of trading of the regular trading session on the Exchange; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in a good faith and commercially reasonable manner. |
||||
Valuation Date: | For any Component, the Expiration Date therefor. | ||||
Market Disruption Event: |
Section 6.3(a) of the Equity Definitions is hereby amended by 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.
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.
|
||||
Settlement Terms: |
Settlement Method Election: |
Applicable; provided that (a) Section 7.1 of the Equity Definitions is hereby amended by replacing the term “Physical Settlement” with the term “Net Share Settlement”, (b) Counterparty must make a single irrevocable election for all Components and (c) if Counterparty is electing Cash Settlement, such Settlement Method Election would be effective only if Counterparty represents and warrants to Dealer in writing on the date of such Settlement Method Election that (i) Counterparty is not in possession of any material non-public information regarding Counterparty or the Shares, and (ii) such election is being made in good faith and not as part of a plan or scheme to evade compliance with the federal securities laws.
Without limiting the generality of the foregoing, Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Sections 9 and 10(b) of the Exchange Act and the rules and regulations promulgated thereunder in respect of such election.
|
||||
Electing Party: | Counterparty | ||||
Settlement Method Election Date: | The second Scheduled Valid Day prior to the scheduled Expiration Date for the Component with the earliest scheduled Expiration Date. | ||||
Default Settlement Method: | Net Share Settlement | ||||
Net Share Settlement: |
With respect to any Component, if Net Share Settlement is applicable to the Options exercised or deemed exercised hereunder, Dealer will deliver to Counterparty, on the relevant Settlement Date for such Component, a number of Shares (the “Net Share Settlement Amount”) equal to (i) the Daily Option Value on the Expiration Date of such Component divided by (ii) the Relevant Price on such Expiration Date.
Dealer will deliver cash in lieu of any fractional Shares to be delivered with respect to any Net Share Settlement Amount valued at the Relevant Price for the Expiration Date of such Component.
|
||||
Cash Settlement: | With respect to any Component, if Cash Settlement is applicable to the Options exercised or deemed exercised hereunder, in lieu of Section 8.1 of the Equity Definitions, Dealer will pay to Counterparty, on the relevant Settlement Date for each such Option, an amount of cash (the “Cash Settlement Amount”) equal to the Daily Option Value on the Expiration Date of such Component. |
||||
Delivery Obligation: | For any Settlement Date, the Net Share Settlement Amount or the Cash Settlement Amount payable or deliverable on such Settlement Date. | ||||
Daily Option Value: | For any Component, an amount equal to (i) the Number of Options in such Component, multiplied by (ii) the Option Entitlement multiplied by (iii) (A) the lesser of the Relevant Price on the Expiration Date of such Component and the Cap Price, minus (B) the Strike Price on such Expiration Date; provided that if the calculation above results in a negative number, the Daily Option Value for such Component shall be deemed to be zero. In no event will the Daily Option Value be less than zero. |
||||
Valid Day: | A day on which (i) there is no Market Disruption Event and (ii) trading in the Shares generally occurs on the Exchange. If the Shares are not listed, quoted or traded on any U.S. securities exchange or any other market, “Valid Day” means a Business Day. |
||||
Scheduled Valid Day: | A day that is scheduled to be a Valid Day on the Exchange. If the Shares are not listed, quoted or traded on any U.S. securities exchange or any other market, “Scheduled Valid Day” means a Business Day. |
Business Day: | Any day other than a Saturday, a Sunday or other day on which banking institutions are authorized or required by law, regulation or executive order to close or be closed in the State of New York. | ||||
Relevant Price: | On any Valid Day, the per Share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page “PRO <equity> AQR” (or its equivalent successor if such page is not available) (the “VWAP”) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on the Exchange on such Valid Day (or if such volume-weighted average price is unavailable at such time, the market value of one Share on such Valid Day, as determined by the Calculation Agent in a good faith and commercially reasonable manner using, if practicable, a volume-weighted average method substantially similar to the method for determining the VWAP). The Relevant Price will be determined without regard to after-hours trading or any other trading outside of the regular trading session trading hours. |
||||
Settlement Date: | For all Components of the Transaction, the date one Settlement Cycle immediately following the Expiration Date for the Component with the latest scheduled Expiration Date. | ||||
Settlement Currency: | USD | ||||
Other Applicable Provisions: | To the extent Dealer is obligated to deliver Shares hereunder, the provisions of Sections 9.1(c), 9.8, 9.9, 9.11 and 9.12 of the Equity Definitions will be applicable, except that all references in such provisions to “Physically-settled” shall be read as references to “Net Share Settlement.” | ||||
Representation and Agreement: | Notwithstanding anything to the contrary in Equity Definitions (including, but not limited to, Section 9.11 thereof), the parties acknowledge that (i) any Shares delivered to Counterparty shall be, upon delivery, subject to restrictions and limitations arising from Counterparty’s status as issuer of the Shares under applicable securities laws, (ii) Dealer may deliver any Shares required to be delivered hereunder in certificated form in lieu of delivery through the Clearance System and (iii) any Shares delivered to Counterparty may be “restricted securities” (as defined in Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”)). |
||||
Adjustments: | |||||
Method of Adjustment: | Calculation Agent Adjustment; provided that the parties agree that (x) open market Share repurchases at prevailing market price and (y) Share repurchases through a dealer pursuant to accelerated share repurchases, forward contracts or similar transactions (including without limitation any discount to average VWAP prices) that are entered into at prevailing market prices and in accordance with customary market terms for transactions of such type to repurchase the Shares shall not be considered Potential Adjustment Events so long as, in the case of clause (y) after giving effect to such transaction, the aggregate number of Shares repurchased during the term of the Transaction pursuant to all such transactions described in clause (y) would not exceed 25% of the number of Shares outstanding as of the Trade Date, as determined by the Calculation Agent and as adjusted by the Calculation Agent in a commercially reasonable manner to account for any subdivision or combination with respect to the Shares. |
||||
Extraordinary Events: | |||||
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 an entity or person organized under the laws of the United States, any State thereof or the District of Columbia”. |
Merger Events: | Applicable | ||||
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: | Component Adjustment; provided that the Calculation Agent may elect Cancellation and Payment for all or part of the Transaction if Component Adjustment would not produce a commercially reasonable result. | ||||
Tender Offer: |
Applicable; provided that the definition of “Tender Offer” in Section 12.1 of the Equity Definitions will be amended by replacing the phrase “greater than 10% and less than 100% of the outstanding voting shares of the Counterparty” in the third and fourth line thereof with “greater than 20% and less than 100% of the outstanding Shares of the Counterparty”. |
||||
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: |
Upon an Announcement Event (as defined below), the Calculation Agent shall make a Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions; provided that, in respect of an Announcement Event, (x) 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”; (y) the phrase “exercise, settlement, payment or any other terms of the Transaction including, without limitation, the spread)” shall be replaced with the phrase “exercise, settlement, payment or any other terms of the Transaction; and (z) the words “whether within a commercially reasonable (as determined by the Calculation Agent) period of time prior to or after the Announcement Event” shall be inserted after the word “Transaction” in the sixth line thereof; provided further that if an adjustment to the Cap Price would produce a commercially reasonable result, then such adjustment shall be limited to the Cap Price (provided that in no event shall the Cap Price be less than the Strike Price)”. An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, to which Article 12 of the Equity Definitions is applicable (it being understood and agreed that the Calculation Agent shall provide to Counterparty commercially reasonable documentary evidence of the inputs used to make such adjustments to the terms of the Transaction, subject to, and in accordance with, Section 3 hereof); provided that upon the Calculation Agent making an adjustment, determined in a commercially reasonable manner, to the terms of any Component upon any Announcement Event, then the Calculation Agent shall make an adjustment to the terms of such Component upon any announcement regarding the same event that gave rise to the original Announcement Event regarding the abandonment of any such event to the extent necessary to reflect the economic effect of such subsequent announcement on the Transaction. |
Announcement Event:
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(i) The public announcement (whether by Counterparty or a Valid Third Party Entity) of any Merger Event or Tender Offer, or the announcement by Counterparty of any intention to enter into a Merger Event or Tender Offer, (ii) the public announcement by Counterparty of an intention by Counterparty to solicit or enter into, or to explore strategic alternatives or other similar undertaking that may include, a Merger Event or Tender Offer, (iii) there occurs a public announcement (whether by Counterparty or a Valid Third Party Entity) of any potential acquisition by Counterparty and/or its subsidiaries where the consideration exceeds 35% of the market capitalization of the Counterparty as of the date of such announcement, or (iv) any subsequent public announcement (whether by Counterparty or a Valid Third Party Entity) of a change to a transaction or intention that is the subject of an announcement of the type described in clause (i), (ii) or (iii) of this sentence (including, without limitation, a new announcement 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); 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; it being understood that any adjustment in respect of an Announcement Event shall take into account any earlier adjustment relating to the same Announcement Event and shall not be duplicative with any other adjustment, cancellation or valuation made pursuant to this Confirmation, the Equity Definitions or the Agreement. |
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Valid Third Party Entity: | In respect of any transaction, any third party that has a bona fide intent to enter into or consummate such transaction (it being understood and agreed that in determining whether such third party has such a bona fide intent, the Calculation Agent may take into consideration the effect of the relevant announcement by such third party on the Shares and/or options relating to the Shares). | ||||
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 and (ii) the weighted average of the types and amounts of consideration to be received by the holders of Shares that affirmatively make such an election. | ||||
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. |
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Additional Disruption Events: |
(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”. |
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(b) Failure to Deliver: |
Applicable | ||||
(c) Insolvency Filing: |
Applicable | ||||
(d) Hedging Disruption: |
Applicable | ||||
(e) Increased Cost of Hedging: |
Not Applicable | ||||
Hedging Party: | Dealer | ||||
Determining Party: | For all applicable Extraordinary Events, Dealer; all calculations and determinations made by the Determining Party shall be made in good faith and in a commercially reasonable manner; provided that, upon receipt of written request from Counterparty, the Determining Party shall promptly provide Counterparty with a written explanation (including relevant data in a commonly used file format for the storage and manipulation of financial data) 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 Determining Party’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 (5) Exchange Business Days from the receipt of such request. |
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Non-Reliance: | Applicable | ||||
Agreements and Acknowledgments Regarding Hedging Activities: | Applicable | ||||
Hedging Adjustment: | For the avoidance of doubt, whenever the Dealer, Determining Party or Calculation Agent is required or permitted to make a calculation, adjustment, determination or election (for the avoidance of doubt, including but not limited to, any calculation or determinations with respect to any amounts, including amounts payable upon termination or early termination) pursuant to the terms of the Agreement, this Confirmation or the Equity Definitions to take into account the effect of an event or otherwise, the Calculation Agent or Determining Party or Dealer, as the case may be, shall make such calculation, determination, election or adjustment by reference to the effect of such event on Dealer assuming that Dealer maintains a commercially reasonable Hedge Position in respect of the Transaction. | ||||
Additional Acknowledgments: | Applicable |
Share Termination Alternative: | If applicable, Dealer shall deliver to Counterparty the Share Termination Delivery Property on, or within a commercially reasonable period of time after, the date when the relevant Payment Obligation would otherwise be due pursuant to Section 12.7 or 12.9 of the Equity Definitions or Section 6(d)(ii) and 6(e) of the Agreement, as applicable, in satisfaction of such Payment Obligation in the manner reasonably requested by Counterparty free of payment. | ||||
Share Termination Delivery 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 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, 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. For the avoidance of doubt, the parties agree that in determining the Share Termination Delivery Unit Price the Calculation Agent may consider a variety of factors, including the market price of the Share Termination Delivery Units and/or the purchase price paid in connection with the commercially reasonable purchase of Share Termination Delivery Property. | ||||
Share Termination Delivery Unit: | One Share or, if the Shares have changed into cash or any other property or the right to receive cash or any other property as the result of a Nationalization, Insolvency or Merger Event (any such cash or other property, the “Exchange Property”), a unit consisting of the type and amount of such Exchange 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 Nationalization, Insolvency or Merger Event, as determined by the Calculation Agent. |
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Failure to Deliver: | Applicable | ||||
Other Applicable Provisions: | If Share Termination Alternative is applicable, the provisions of Sections 9.8, 9.9, 9.11 and 9.12 (as modified above) of the Equity Definitions and the provisions set forth opposite the caption “Representation and Agreement” in Section 2 will be applicable, except that all references in such provisions to “Physically-settled” shall be read as references to “Share Termination Settled” and all references to “Shares” shall be read as references to “Share Termination Delivery Units”. “Share Termination Settled” in relation to the Transaction means that the Share Termination Alternative is applicable to the Transaction. |
Yours faithfully, | ||||||||||||||
[DEALER] | ||||||||||||||
By: | ||||||||||||||
Name: | ||||||||||||||
Title | ||||||||||||||
Agreed and Accepted by: | ||||||||||||||
PROS HOLDINGS, INC. | ||||||||||||||
Name: | ||||||||||||||
Title: |
Component | Number of Options | Expiration Date | ||||||
10b-18 VWAP Price | Per-Share Premium | ||||
[Dealer Name and Address] | ||||||||||||||
[Date] | ||||||||||||||
To: | PROS Holdings, Inc. | |||||||||||||
3200 Kirby Dr., Suite 600 | ||||||||||||||
Houston, Texas 77098 | ||||||||||||||
RE: | Base Capped Call Transaction | |||||||||||||
The purpose of this Trade Notification is to notify you of certain terms in the Transaction entered into between [ _ ] ("Dealer") and PROS Holdings, Inc. ("Counterparty"). This Trade Notification supplements, forms part of, and is subject to the Confirmation dated as of [ _ ], 2023 between Dealer and Counterparty, as amended and supplemented from time to time. | ||||||||||||||
Average Per-Share Premium: | USD [__________] | |||||||||||||
Premium: | USD [__________] | |||||||||||||
Final Premium | USD [__________] | |||||||||||||
Yours faithfully, | ||||||||||||||
[DEALER] | ||||||||||||||
By: | ||||||||||||||
Authorized Signatory | ||||||||||||||
Name: |