UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Green Brick Partners, Inc.
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(Name of Issuer)
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Shares of Common Stock, par value $0.01 per share
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(Title of Class of Securities)
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392709101
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(CUSIP Number)
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Greenlight Capital, Inc.
140 East 45th Street, Floor 24
New York, New York 10017
Tel. No.: (212) 973-1900
Attention: Chief Operating Officer
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(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
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- with copies to -
Barry N. Hurwitz
Morgan, Lewis & Bockius LLP
One Federal Street
Boston, MA 02110
(617) 951-8000
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December 12, 2023
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(Date of Event Which Requires Filing of this Statement)
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1
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Names of Reporting Persons.
Greenlight Capital, Inc.
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2
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Check the Appropriate Box if a Member of a Group (See Instructions)
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(a) [ ]
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(b) [ ]
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3
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SEC Use Only
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4
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Source of Funds (See Instructions):
AF, WC, OO
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5
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Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e):
[ ]
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6
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Citizenship or Place of Organization.
Delaware
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Number
of Shares
Beneficially
Owned by
Each
Reporting
Person With
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7 Sole Voting Power
0
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8 Shared Voting Power
834,545
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9 Sole Dispositive Power
0
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10 Shared Dispositive Power
834,545
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11
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Aggregate Amount Beneficially Owned by Each Reporting Person
834,545
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12
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Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ]
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13
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Percent of Class Represented by Amount in Row (11)
1.8%
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14
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Type of Reporting Person (See Instructions)
CO
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1
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Names of Reporting Persons.
DME Advisors GP, LLC
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2
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Check the Appropriate Box if a Member of a Group (See Instructions)
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(a) [ ]
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(b) [ ]
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3
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SEC Use Only
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4
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Source of Funds (See Instructions):
AF, WC, OO
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5
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Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e):
[ ]
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6
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Citizenship or Place of Organization.
Delaware
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Number
of Shares
Beneficially
Owned by
Each
Reporting
Person With
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7 Sole Voting Power
0
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8 Shared Voting Power
10,570,338
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9 Sole Dispositive Power
0
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10 Shared Dispositive Power
10,570,338
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11
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Aggregate Amount Beneficially Owned by Each Reporting Person
10,570,338
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12
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Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ]
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13
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Percent of Class Represented by Amount in Row (11)
23.3%
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14
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Type of Reporting Person (See Instructions)
OO
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1
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Names of Reporting Persons.
DME Advisors, L.P.
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2
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Check the Appropriate Box if a Member of a Group (See Instructions)
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(a) [ ]
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(b) [ ]
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3
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SEC Use Only
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4
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Source of Funds (See Instructions):
AF, WC, OO
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5
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Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e):
[ ]
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6
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Citizenship or Place of Organization.
Delaware
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Number
of Shares
Beneficially
Owned by
Each
Reporting
Person With
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7 Sole Voting Power
0
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8 Shared Voting Power
2,740,190
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9 Sole Dispositive Power
0
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10 Shared Dispositive Power
2,740,190
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11
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Aggregate Amount Beneficially Owned by Each Reporting Person
2,740,190
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12
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Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ]
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13
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Percent of Class Represented by Amount in Row (11)
6.0%
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14
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Type of Reporting Person (See Instructions)
PN
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1
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Names of Reporting Persons.
DME Capital Management, LP
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2
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Check the Appropriate Box if a Member of a Group (See Instructions)
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(a) [ ]
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(b) [ ]
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3
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SEC Use Only
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4
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Source of Funds (See Instructions):
AF, WC, OO
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5
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Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e):
[ ]
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6
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Citizenship or Place of Organization.
Delaware
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Number
of Shares
Beneficially
Owned by
Each
Reporting
Person With
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7 Sole Voting Power
0
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8 Shared Voting Power
7,830,148
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9 Sole Dispositive Power
0
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10 Shared Dispositive Power
7,830,148
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11
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Aggregate Amount Beneficially Owned by Each Reporting Person
7,830,148
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12
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Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ]
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13
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Percent of Class Represented by Amount in Row (11)
17.3%
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14
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Type of Reporting Person (See Instructions)
PN
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1
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Names of Reporting Persons.
David Einhorn
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2
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Check the Appropriate Box if a Member of a Group (See Instructions)
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(a) [ ]
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(b) [ ]
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3
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SEC Use Only
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4
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Source of Funds (See Instructions):
AF, WC, OO
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5
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Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e):
[ ]
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6
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Citizenship or Place of Organization.
USA
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Number
of Shares
Beneficially
Owned by
Each
Reporting
Person With
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7 Sole Voting Power
869,110
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8 Shared Voting Power
11,404,883
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9 Sole Dispositive Power
869,110
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10 Shared Dispositive Power
11,404,883
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11
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Aggregate Amount Beneficially Owned by Each Reporting Person
12,273,993
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12
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Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ]
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13
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Percent of Class Represented by Amount in Row (11)
27.0%
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14
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Type of Reporting Person (See Instructions)
IN
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To:
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[Counterparty]
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A/C:
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From:
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Goldman Sachs Financial Markets, L.P.
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Re:
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Variable Price Forward Sale Transaction
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Ref. No:
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Date:
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December 12, 2023
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Trade Date:
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December 12, 2023
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Seller:
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Counterparty
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Buyer:
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GS
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Shares:
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Shares of Common Stock, par value $0.01 per share, of the Issuer (Ticker: GRBK)
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Issuer:
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Green Brick Partners, Inc.
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Number of Shares:
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As set forth in Annex A
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Share Delivery:
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Subject to Section 2(d) of the Pledge Agreement, by 12:00 p.m. noon New York City time on the Final Settlement Date (as defined below), Counterparty shall sell, convey, transfer,
assign and deliver to GS a number of Shares equal to the Number of Shares (the “Purchased Shares”) in accordance with Section 9.4 of the Equity Definitions.
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The provisions of the last sentence of Section 9.2 and Sections 9.8, 9.9, 9.11 and 9.12 of the Equity Definitions will be applicable to Counterparty’s delivery of Shares
contemplated above as if such delivery were a “Physical Settlement” under the Equity Definitions. For the avoidance of doubt, upon such delivery GS will become the absolute owner of such Shares for all purposes. Counterparty shall be deemed to
represent to GS on the Final Settlement Date that all of the representations set forth in Section 9.11 of the Equity Definitions shall be true and correct with respect to the delivery of Purchased Shares to GS. Without limiting the generality
of the foregoing, the Purchased Shares shall be delivered to GS in book-entry form (which are registered in the name of The Depository Trust Company’s (the “DTC”) nominee, maintained in the form of book
entries on the books of DTC and allowed to be settled through DTC’s regular book-entry settlement services) without any restrictive legend.
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Prepayment:
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Not Applicable
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Variable Obligation:
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Not Applicable
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Forward Price:
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The arithmetic average of the VWAP Prices for the Valid Days in the Calculation Period, subject to “Valuation Disruption” below.
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Premium Amount:
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As set forth in Annex A
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VWAP Price:
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For any Exchange Business Day, the per Share volume-weighted average price for the regular trading session (without regard to pre-open or after hours trading outside of such
regular trading session) as displayed under the heading “Bloomberg VWAP” on Bloomberg page “GRBK <Equity> AQR” (or any successor thereto) at 4:15 P.M. New York time (or 15 minutes following the end of any extension of the regular trading
session) on such Exchange Business Day or, if such volume-weighted average price is unavailable for any reason or is manifestly erroneous, the market value of one Share on such Exchange Business Day, as determined by the Calculation Agent using
a volume-weighted method after consultation pursuant to the last paragraph of Section 3 hereof, it being understood that the Calculation Agent shall comply with its obligations under the last paragraph of Section 3 hereof in respect of such
determination.
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Settlement Currency:
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USD
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Exchange:
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The New York Stock Exchange
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Related Exchange:
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All Exchanges
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Valuation:
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Valuation Time:
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As provided in Section 6.1 of the Equity Definitions
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Valuation Date:
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The Scheduled Valuation Date; provided that GS shall have the right to designate any Scheduled Trading Day on or after the First Acceleration Date to be the Valuation Date for all of the
Transaction (for the avoidance of doubt, in whole but not in part) (the “Accelerated Valuation Date”) by delivering notice to Counterparty of such designation prior to 11:59 A.M. New York City time on
the Exchange Business Day immediately following the designated Accelerated Valuation Date; provided further that GS may designate the Accelerated Valuation Date for the Transaction only if GS has
substantially concurrently designated the same “Accelerated Valuation Date” for the purposes of and under those certain confirmations of Variable Price Forward Sale Transactions, dated as of December 12, 2023, between GS and each of [names of
other SPVs and SILP, as applicable] (if and for so long such confirmations remain in effect).
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Calculation Period:
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The period from and including the Calculation Period Start Date to and including the Valuation Date.
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Calculation Period Start Date:
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As set forth in Annex A
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Scheduled Valuation Date:
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As set forth in Annex A
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First Acceleration Date:
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As set forth in Annex A
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Valuation Disruption:
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Notwithstanding anything to the contrary in the Equity Definitions, to the extent that a Disrupted Day occurs during the Calculation Period, the Calculation Agent may, in its good
faith and commercially reasonable discretion, postpone the Scheduled Valuation Date. 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:
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(i) such Disrupted Day is a Disrupted Day in full, in which case the VWAP Price for such Disrupted Day shall not be included for purposes
of determining the Forward Price, or
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(ii) such Disrupted Day is a Disrupted Day only in part, in which case the VWAP Price for such Disrupted Day shall be determined by the
Calculation Agent after consultation pursuant to the last paragraph of Section 3 hereof based on transactions in the Shares on such Disrupted Day taking into account the nature and duration of the relevant Market Disruption Event, and the
weighting of the VWAP Price for the relevant Valid Days during the Calculation Period shall be adjusted in good faith and a commercially reasonable manner by the Calculation Agent after consultation pursuant to the last paragraph of Section 3
hereof for purposes of determining the Forward Price, with such adjustments based on, among other factors, the nature and duration of any Market Disruption Event and the volume, historical trading patterns and price of the Shares, it being
understood that the Calculation Agent shall comply with its obligations under the last paragraph of Section 3 hereof in respect of such determination.
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Any Scheduled Trading Day on which the Exchange is scheduled to close prior to its normal close of trading shall be deemed to be a Disrupted Day in full.
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The Calculation Agent shall provide notice to Counterparty of any Valuation Disruption on the Exchange Business Day promptly following such Valuation Disruption; provided that in case a Market Disruption Event is due to a Regulatory Disruption, such notice shall not be required to specify, and GS shall not otherwise be required to communicate to Counterparty, the
reason for such Regulatory Disruption.
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If a Disrupted Day occurs during the Calculation Period and each of the nine immediately following Scheduled Trading Days is a Disrupted Day (a “Disruption
Event”), then the Calculation Agent, in its good faith and commercially reasonable discretion, may deem such Disruption Event (and each consecutive Disrupted Day thereafter) to be (x) a Potential Adjustment Event or (y) if the
Calculation Agent determines that no adjustment that it could make under clause (x) will produce a commercially reasonable result, an Additional Termination Event, with Counterparty as the sole Affected Party and the Transaction as the sole
Affected Transaction.
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The definition of “Market Disruption Event” in Section 6.3(a) of the Equity Definitions is hereby amended by deleting the words (A) “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”, (B) inserting the words “at any time on any Scheduled Trading Day during the Calculation Period” after the word
“material,” in the third line thereof and (C) replacing the words “or (iii) an Early Closure.” therein with “(iii) an Early Closure, or (iv) a Regulatory Disruption.”.
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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.
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Valid Day:
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Each Exchange Business Day during the Calculation Period.
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Settlement Terms:
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Cash Settlement:
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Applicable; provided that notwithstanding Section 8.4(a) of the Equity Definitions, following delivery of the Number of Shares on the
Final Settlement Date pursuant to “Share Delivery” above, GS shall pay to Counterparty an amount in USD equal to the Forward Cash Settlement Amount on the Cash Settlement Payment Date.
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Forward Cash
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Settlement Amount:
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An amount equal to the product of (i)(A) the Forward Price plus (B) the Premium Amount and (ii) the Number of Shares.
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Final Settlement Date:
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In the case of an Acceleration Valuation Date, the date that is one Clearance System Business Day immediately following the date on which GS delivers the notice described in
“Valuation Date”, and in the case of the Scheduled Valuation Date, the date that is one Clearance System Business Day immediately following the Scheduled Valuation Date.
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Cash Settlement Payment Date:
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The Final Settlement Date or, if such date is not a Currency Business Date, the next following Currency Business Day.
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Share Adjustments:
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Potential Adjustment Event:
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In addition to the events described in Section 11.2(e) of the Equity Definitions, it shall constitute an additional Potential Adjustment Event if (x) the Scheduled Valuation Date
is postponed pursuant to “Valuation Disruption” above, (y) a Regulatory Disruption as described in Section 10 occurs or (z) a Disruption Event occurs.
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“Extraordinary Dividend” means any dividend or distribution on the Shares that is not of a type described in clause (i) or clause (ii) of
Section 11.2(e) of the Equity Definitions for which the ex-dividend date occurs from the Trade Date to and including the date on which Counterparty has satisfied all of its payment and delivery obligations hereunder in respect of the
Transaction. Article 10 of the Equity Definitions shall not apply to this Transaction.
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Method of Adjustment:
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Calculation Agent Adjustment.
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Extraordinary Events:
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New Shares:
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In the definition of “New Shares” in Section 12.1(i) of the Equity Definitions, (a) the text in subsection (i) 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 (b) the phrase “and (iii) issued by a corporation under the laws of the United States, any
State thereof or the District of Columbia” shall be inserted immediately prior to the period.
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Consequences of Merger Events:
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(a) Share-for-Share:
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Modified Calculation Agent Adjustment
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(b) Share-for-Other:
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Cancellation and Payment
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(c) Share-for-Combined:
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Modified Calculation Agent Adjustment
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Tender Offer:
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Applicable; provided that the definition of “Tender Offer” and “Tender Offer Date” in Section 12.1 of the Equity Definitions are each
hereby amended by adding after the words “voting shares” the words “, voting power or Shares”. The definition of “Tender Offer” in Section 12.1 of the Equity Definitions is further amended by changing the number “10%” to the Tender Offer
Threshold (as defined in Annex A).
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Consequences of Tender Offers:
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(a) Share-for-Share:
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Modified Calculation Agent Adjustment
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(b) Share-for-Other:
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Cancellation and Payment
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(c) Share-for-Combined:
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Modified Calculation Agent Adjustment
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Composition of Combined
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Consideration:
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Not Applicable; provided that, notwithstanding Sections 12.1 and 12.5(b) of the Equity Definitions, to the extent that the composition of
the consideration for the relevant Shares pursuant to a Tender Offer or Merger Event could be determined by a holder of the Shares, the Calculation Agent will, in its sole discretion, determine such composition.
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Consequences of Announcement
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Events:
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Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions, as amended hereby; 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 word
“shall” in the second line shall be replaced with “may” and (z) for the avoidance of doubt, the Calculation Agent may determine the effect on the Transaction of such Announcement (and, if so, adjust the terms of such Transaction accordingly) on
one or more occasions on or after the date of the Announcement Event, 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. An
Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, to which Article 12 of the Equity Definitions is applicable. For the avoidance of doubt, any such adjustment shall be without prejudice to the
application of the provisions set forth in “Consequences of Merger Events” and/or “Consequences of Tender Offers” with respect to the related Merger Event or Tender Offer.
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Announcement Event:
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(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
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Offer, (ii) the public announcement of (x) any potential acquisition by Issuer and/or any of its subsidiaries where the aggregate consideration exceeds the Acquisition Transaction
Percentage (as defined in Annex A) of the market capitalization of Issuer as of the date of such announcement, as determined by the Calculation Agent (an “Acquisition Transaction”) or (y) any potential
lease, exchange, transfer or disposition (including, without limitation, by way of spin-off or distribution) of assets (including, without limitation, any capital stock or other ownership interests or other ownership interest in the Issuer’s
subsidiaries) or other similar event by Issuer or any of its subsidiaries where the aggregate consideration exceeds the Disposal Transaction Threshold of the market capitalization of Issuer as of the date of such announcement, as determined by
the Calculation Agent (a “Disposal Transaction”), (iii) the public announcement of an intention by Issuer or any of its subsidiaries to solicit or enter into, or to explore strategic alternatives or other
similar undertaking that may include, a Merger Event, Tender Offer, Acquisition Transaction or Disposal Transaction, (iv) any other announcement that in the good faith, commercially reasonable judgement of Calculation Agent may result in a
Merger Event, Tender Offer, Acquisition Transaction or Disposal Transaction or (v) 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),
(iii) or (iv) 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), as determined by the Calculation Agent. For the avoidance of doubt, announcements as used in this definition of Announcement Event refer to any public announcement whether made by the Issuer or a third party,
and the occurrence of an Announcement Event with respect to any transaction or intention shall not preclude the occurrence of a later Announcement Event with respect to such transaction or intention. For purposes of this definition of
“Announcement Event,” Merger Event” shall be read with references therein to “100%” being replaced by the percentage equal to the Tender Offer Threshold and to “50%” by the percentage equal to the Reverse Merger Threshold and without reference
to the clause beginning immediately following the definition of “Reverse Merger” therein.
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Nationalization, Insolvency
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or Delisting:
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Cancellation and Payment; provided that in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it shall also
constitute a Delisting if (i) the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The Nasdaq Global Market or The Nasdaq Global Select Market
(or their respective successors) (and 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 be deemed to be the Exchange) or (ii) the Issuer announces
an intent to cause the Shares to cease to be listed, traded or publicly quoted on the Exchange for any reason (other than a Merger Event or Tender Offer).
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Additional Disruption Events:
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(i) Change in Law:
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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 or statement of, the formal or informal interpretation”, (ii) by replacing the word “Shares” where it appears in clause (X) thereof with the words “Hedge Position”, (iii)
adding the words “, or holding, acquiring or disposing of Shares or any Hedge Positions relating to,” after the words “obligations under” in clause (Y) thereof and (iv) 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 (“Dodd-Frank”) 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 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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(ii) Failure to Deliver:
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Not Applicable
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(iii) Insolvency Filing:
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Applicable; provided that the definition of “Insolvency Filing” in Section 12.9(a)(iv) of the Equity Definitions shall be amended by
deleting the clause “provided that proceedings instituted or petitions prevented by creditors and not consented to by the Issuer shall not be deemed an Insolvency Filing” at the end thereof and replacing it with the following: “or it has
instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or
liquidation by a creditor and such proceeding is not dismissed, discharged, stayed or restrained in each case within fifteen days of the institution or presentation thereof.
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(iv) Hedging Disruption:
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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 at the end of such Section:
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“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
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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.”; and
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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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(v) Increased Cost of
|
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Hedging:
|
Applicable; provided that, Section 12.9(a)(vi) of the Equity Definitions is hereby amended by inserting the following parenthetical
immediately following the term “equity price risk” in the fifth line thereof: “(including, for the avoidance of doubt and without limitation, stock price risk and volatility risk).” Increased Cost of Hedging shall not include any expense related to borrowing or maintaining a borrow of Shares.
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(v) Loss of Stock Borrow:
|
Applicable, if and to the extent Counterparty has exercised its right to revoke the Rehypothecated Collateral (as defined in the Pledge Agreement) pursuant to Section 2(f) of the
Pledge Agreement; otherwise, Not Applicable
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Maximum Stock Loan
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Rate:
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200 basis points per annum
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(v) Increased Cost
of Stock Borrow:
|
Applicable, if and to the extent Counterparty has exercised its right to revoke the Rehypothecated Collateral pursuant to Section 2(f) of the Pledge Agreement; otherwise, Not
Applicable
|
|
Initial Stock Loan Rate:
|
0 basis points per annum
|
|
For the avoidance of doubt, (i) a Loss of Stock Borrow and/or Increased Cost of Stock Borrow will not occur with respect to any Share that GS has exercised its right to
Rehypothecate pursuant to Section 2(f) of the Pledge Agreement and in respect of which such right to Rehypothecate remains in effect and (ii) if GS is not then permitted to exercise such right to Rehypothecate pursuant to Section 2(f) of the
Pledge Agreement, the cost (rate) of stock borrow for the purposes of Section 12.9(b)(iv) and 12.9(b)(v), any Price Adjustment or amount paid by Counterparty pursuant to Section 12.9(b)(iv) or 12.9(b)(v), as the case may be, of the Equity
Definitions will include, in addition to the rate to borrow Shares incurred by the Hedging Party, any balance sheet charges, capital charges and funding costs incurred by Hedging Party on account of such event.
|
||
The term “Hedging Shares” in Section 12.9(a)(x) of the Equity Definitions shall be amended by inserting the following parentheticals immediately following the terms “with respect
to a Transaction” “(including the Pledge Agreement related thereto)”.
|
Hedging Party:
|
For all applicable events, GS. For the avoidance of doubt, the “Hedging Party” shall be deemed to include GS and any of its affiliates for all purposes other than giving or
receiving notice.
|
|
Hedge Position:
|
The definition of “Hedge Positions” in Section 13.2(b) of the Equity Definitions shall be amended by (i) inserting the words “, unwind, termination” after the words “entry into”
and before the words “or maintenance” in the first line and (ii) replacing the words “a party” with the words “GS or its Affiliates” in the third line.
|
|
Determining Party:
|
For all applicable events, GS.
|
|
Non-Reliance:
|
Applicable
|
|
Agreements and Acknowledgements
|
||
Regarding Hedging Activities:
|
Applicable
|
|
Additional Acknowledgements:
|
Applicable
|
|
Transfer:
|
Notwithstanding anything to the contrary in the Agreement, GS may assign, transfer and set over all rights, title and interest, powers, privileges and remedies of GS under the
Transaction, in whole or in part, to an affiliate of GS whose obligations are guaranteed by The Goldman Sachs Group, Inc. without the consent of Counterparty; provided that (x) no Event of Default or
Potential Event of Default shall have occurred and be continuing with respect to GS and (y) subsequent to such transfer or assignment, Counterparty will neither, as a result of such transfer or assignment, (1) be required to pay an additional
amount in respect of an Indemnifiable Tax under Section 2(d)(i)(4) of the Agreement, except to the extent that such additional amounts were payable to the assignor or transferor immediately before the assignment or transfer, nor (2) receive a
payment from which an amount has been deducted or withheld for or on account of any Indemnifiable Tax in respect of which the other party is not required to pay an additional amount, except to the extent that such additional amounts were not
payable by the assignor or transferor immediately before the assignment or transfer.
|
|
Counterparty Payment Instructions:
|
To be provided by Counterparty
|
|
Account for Delivery of Shares to
|
|
|
Counterparty:
|
To be provided by Counterparty
|
|
GS Payment Instructions:
|
To be provided by GS
|
|
Account for Delivery of Shares to GS:
|
To be provided by GS
|
|
Counterparty’s Contact Details
|
|
|
for Purpose of Giving Notice:
|
[Contact information]
|
|
|
||
With a copy, which shall not constitute notice, to:
|
||
Morgan, Lewis & Bockius LLP
|
||
101 Park Ave.
|
||
New York, NY 10178
|
||
Attention: Thomas D’Ambrosio
|
GS’s Contact Details
|
|
|
for Purpose of Giving Notice:
|
Goldman Sachs Financial Markets, L.P
|
|
200 West Street
|
||
New York, NY 10282-2198
|
||
Attention: Jonathan Armstrong, Structured Equity Group
|
||
Telephone: 212-902-5181
|
||
Email: Jonathan.armstrong@gs.com
|
||
|
||
With a copy to:
|
||
Attention: Cory Oringer, Structured Equity Group
|
||
Telephone: 212-902-9162
|
||
Email: Cory.oringer@gs.com
|
||
|
||
And email notification to the following address:
|
||
Eq-derivs-notifications@am.ibd.gs.com
|
||
4. |
Conditions:
|
5. |
Additional Mutual Representations, Warranties and Covenants. In addition to the representations, warranties and covenants in the Agreement, each party represents, warrants and covenants to the
other party that:
|
6. |
Additional Representations and Agreements of Counterparty. In addition to the representations and agreements in the Agreement and those contained herein, Counterparty represents and warrants
to, and covenants and agrees with, GS as follows:
|
7. |
Legal Opinions. Counterparty shall, on or prior to the Trade Date, deliver, or cause to be delivered, to GS opinions of New York and US counsel to Counterparty [and an opinion of [jurisdiction]
counsel to Counterparty], in each case, in form and substance reasonably satisfactory to GS in respect of the Transaction.
|
8. |
Counterparty Sales. Counterparty and its Associated Persons shall not, without the prior written consent of GS, directly or indirectly sell any Shares by means of a derivative instrument
(regardless of settlement method), listed contracts on the Shares or securities that are convertible into, or exchangeable or exercisable for Shares during the term of the Transaction except (i) through GS (in GS’s sole discretion), (ii) that
Counterparty may utilize such instruments to transfer Shares among its affiliates and among entities and accounts managed by its affiliates, provided that such transferees shall thereafter be considered Associated Persons for purposes of this
Section 8, and (iii) that this this sentence shall not apply to any account of Prelude Structured Alternatives Master Fund, LP that is not managed solely by the investment manager of Counterparty or an affiliate thereof. Counterparty and its
Associated Persons shall not, without the prior written consent of GS, directly or indirectly sell any Shares except (i) through GS (in GS’s sole discretion), (ii) that Counterparty may transfer shares among its affiliates and among entities
and accounts managed by its affiliates (provided that such transferees shall thereafter be considered Associated Persons for purposes of this Section 8), and (iii) any sale of Shares by Prelude Structured Alternatives Master Fund, LP.
|
9. |
No Material Non-public Information. No Manipulation. Counterparty represents, warrants and covenants to GS that:
|
10. |
Regulatory Disruption. In the event that GS concludes, in its sole but reasonable discretion, that it is appropriate with respect to any legal, regulatory or self-regulatory requirements or
related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily and generally adopted by GS or its affiliates), for it to refrain from or decrease any market activity on any
Scheduled Trading Day or Days during the Calculation Period, GS may elect to deem that a Market Disruption Event has occurred and will be continuing on such Scheduled Trading Day or Days (a “Regulatory
Disruption”). For the avoidance of doubt, any failure by the Issuer to comply with the reporting requirements contained in Rule 144(c) shall constitute a Regulatory Disruption at the election of GS.
|
11. |
Extension of Valuation or Settlement. GS may postpone the Scheduled Valuation Date, the Valuation Date, the Final Settlement Date, the Cash Settlement Payment Date or any other date or period
of valuation or payment by GS (in which event the Calculation Agent shall make appropriate adjustments to the terms of the Transaction), if GS determines, in its good faith and reasonable discretion, that such postponement is necessary to
preserve GS’s hedging or hedge unwind activity in connection with the Transaction in light of existing liquidity conditions in the relevant market or to enable GS to effect sales or purchases of Shares in connection with its hedging, hedge
unwind or settlement activity hereunder in compliance with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures generally applicable to GS and its affiliates.
|
12. |
Additional Termination Event(s).
|
13. |
[Reserved.]
|
14. |
Beneficial Ownership. Notwithstanding anything to the contrary in the Agreement, this Confirmation or the Pledge Agreement, in no event shall GS be entitled to receive, or shall be deemed to
receive, any Shares, exercise any right of rehypothecation or exercise remedies pursuant to the Pledge Agreement in respect of Shares constituting Collateral (as defined in the Pledge Agreement) in connection with the Transaction if,
immediately upon giving effect to such receipt of such Shares or such exercise of remedies, (i) the Section 13 Percentage would be equal to or greater than 9.0% or (ii) the Share Amount would exceed the Applicable Share Limit (each of clause
(i) and (ii), an “Ownership Limitation”). The “Section 13 Percentage” as of
|
15. |
Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events. If (a) an Early Termination Date (whether as a result of
an Event of Default or a Termination Event) occurs or is designated with respect to the Transaction or (b) the Transaction is cancelled or terminated upon the occurrence of an Extraordinary Event, and if Counterparty would owe any amount to GS
determined pursuant to Section 6(c)(ii) of the Agreement (any such amount, the “Due Amount”), then GS may elect to substitute such amount or any portion thereof designated by GS (such amount subject to
this Section 15, a “Payment Obligation”) by the Share Termination Alternative, provided that the number of Share Termination Delivery Units constituting the Share
Termination Delivery Property may in no event exceed the Number of Shares pledged to GS pursuant to the Pledge Agreement, and Counterparty shall in no event be required to deliver to GS any Shares in excess of the then-applicable Number of
Shares that are subject to the Confirmation and that are pledged or rehypothecated under the Pledge Agreement (it being understood that in case GS elected to designate a Payment Obligation only in respect of a portion of the Due Amount, the
remainder of the Due Amount shall be satisfied pursuant to Section 6(d)(ii) and 6(e) of the Agreement, as applicable).
|
Share Termination Alternative:
|
Counterparty shall deliver to GS the Share Termination Delivery Property on the date when the relevant Payment Obligation would otherwise be due pursuant to Section 6(d)(ii) and
6(e) of the Agreement (the “Share Termination Payment Date”), in satisfaction of such Payment Obligation.
|
|
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 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:
|
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.
|
|
Failure to Deliver:
|
Applicable
|
|
Other applicable provisions:
|
If Share Termination Alternative is applicable, the provisions of Sections 9.8, 9.9 and 9.11 of the Equity Definitions 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.
|
16. |
Netting and Set-off.
|
17. |
Acknowledgments.
|
18. |
Tax.
|
19. |
Indemnification. Counterparty agrees to indemnify and hold harmless GS, its affiliates and its assignees and their respective directors, officers, employees, agents and controlling persons (GS
and each such person being an “Indemnified Party”) from and against any and all losses, claims, damages and liabilities (or actions in respect thereof), joint or several, to which such Indemnified Party
may become subject, under the Securities Act or the Exchange Act, relating to or arising out of the Transaction as a result of any material misstatements of Counterparty in, or any breach of covenants binding on Counterparty pursuant to, the
Agreement, this
|
20. |
Amendments to Equity Definitions.
|
21. |
Non-Confidentiality. The parties hereby agree that (i) effective from the date of commencement of discussions concerning any Transaction hereunder, Counterparty and each of its employees,
representatives, or other agents may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of such Transaction and all materials of any kind, including opinions or other tax analyses, provided by
GS and its affiliates to Counterparty relating to such tax treatment and tax structure; provided that the foregoing does not constitute an authorization to disclose the identity of GS or its affiliates,
agents or advisers, or, except to the extent relating to such tax structure or tax treatment, any specific pricing terms or commercial or financial information, and (ii) GS does not assert any claim of proprietary ownership in respect of any
description contained herein or therein relating to the use of any entities, plans or arrangements to give rise to a particular United States federal income tax treatment for Counterparty.
|
22. |
Third Party Rights. This Confirmation is not intended and shall not be construed to create any rights in any person other than Counterparty, GS and their respective successors and assigns and
no other person shall assert any rights as third-party beneficiary hereunder. Whenever any of the parties hereto is referred to, such reference shall be deemed to include the successors and assigns of such party. All the covenants and
agreements herein contained by or on behalf of Counterparty and GS shall bind, and inure to the benefit of, their respective successors and assigns whether so expressed or not.
|
23. |
Waiver of Rights. Any provision of this Confirmation may be waived if, and only if, such waiver is in writing and signed by the party against whom the waiver is to be effective.
|
24. |
Governing Law. The Agreement, this Confirmation and any non-contractual obligations arising out of or connected with it, shall be governed by, and constructed in accordance with, the laws of
the State of New York.
|
25. |
Offices.
|
26. |
Exclusive Jurisdiction; Waiver of Jury Trial.
|
27. |
Counterparts. This Confirmation may be executed in any number of counterparts, all of which shall constitute one and the same instrument, and any party hereto may execute this Confirmation by
signing and delivering one or more counterparts. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act,
|
28. |
QFC Stay Provisions.
|
29. |
GSFM. GS is not a member of the Securities Investor Protection Corporation, and the protections of the Securities Investor Protection Act of 1970 (15 U.S.C. 78aaa through 78lll) will not apply
to the Transaction or collateral posted by Counterparty to GS. As a consequence, in the bankruptcy of GS, Counterparty will be treated as an unsecured creditor of GS with respect to any obligations of GS, including GS’s obligation to return
collateral posted by it to GS, unless the parties otherwise agree to segregate such collateral. Unless otherwise noted, GS has acted as principal in respect of this Transaction. The time and venue of execution of this Transaction is available
upon request. GS may make or receive payments to/from a third party in connection with this Transaction, the details of which are available upon request.
|
30. |
Designation by GS. Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing GS to sell or deliver any Shares or other securities to Counterparty, GS may
designate any of its affiliates to sell or deliver such shares or other securities and otherwise to perform GS’s obligations in respect of the Transaction hereunder and any such designee may assume such obligations. GS shall remain fully
liable for satisfying its obligations under this Confirmation and the Agreement until its obligations have been fully, finally and indefeasibly discharged by any such performance by an affiliate.
|
By: |
___________________________________
Name: Title: |
Pledgor
|
Secured Party
|
Filing Office
|
[Pledgor]
|
Goldman Sachs Financial Markets, L.P.
|
[Filing office]
|
Pledgor
|
Secured Party
|
Filing Office
|
[Pledgor]
|
Goldman Sachs Financial Markets, L.P.
|
[Filing office]
|