The Capped Call Transactions are separate transactions, in each case, entered into by the Company with the Option Counterparties, and are not part of the terms of the Notes and will not affect any holder’s rights under the Notes. Holders of the Notes will not have any rights with respect to the Capped Call Transactions.
The summary of the foregoing transactions is qualified in its entirety by reference to the text of the letter agreements in respect of the Capped Call Transactions, which are attached as Exhibits 10.2, 10.3 and 10.4 to this Current Report on Form8-K and are incorporated herein by reference.
Amended and Restated 2017 Capped Call Transactions
On September 15, 2017, the Company issued $431.25 million aggregate principal amount of 0.375% Convertible Senior Notes due 2022 (the “2017 Notes”), which includes the exercise in full of the $56.25 million over-allotment option, to certain financial institutions (the “2017 Initial Purchasers”). On September 11, 2017, in connection with the pricing of the 2017 Notes, the Company entered into privately negotiated capped call transactions (the “2017 Base Capped Call Transactions”) with each of Citibank, N.A., Goldman Sachs & Co. LLC and Bank of America, N.A. (the “2017 Option Counterparties”) and, in connection with the exercise in full of the over-allotment option by the 2017 Initial Purchasers, on September 14, 2017, entered into additional capped call transactions (such additional capped call transactions, the “2017 Additional Capped Call Transactions” and, together with the 2017 Base Capped Call Transactions, the “2017 Capped Call Transactions”) with the 2017 Option Counterparties. Collectively, the 2017 Capped Call Transactions covered, initially, the number of shares of the Company’s Class A common stock underlying the 2017 Notes, subject to anti-dilution adjustments substantially similar to those applicable to the 2017 Notes.
On November 15, 2018 (the “Amendment Date”), the Company amended and restated the 2017 Capped Call Transactions (the “Restated 2017 Capped Call Transactions”) with each 2017 Option Counterparty in order to, among other things, provide that the options underlying the Restated 2017 Capped Call Transactions can, at the Company’s option, remain outstanding until September 1, 2022, which is the maturity date for the 2017 Notes, even if all or a portion of the 2017 Notes are converted, repurchased or redeemed prior to such date.
The summary of the foregoing transactions is qualified in its entirety by reference to the text of the amended and restated letter agreements in respect of the Restated 2017 Capped Call Transactions, which are attached as Exhibits 10.5, 10.6, 10.7, 10.8, 10.9 and 10.10 to this Current Report on Form8-K and are incorporated herein by reference.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under anOff-Balance Sheet Arrangement of a Registrant
The information set forth under Item 1.01 of this Current Report on Form8-K under the heading “Indenture” is incorporated herein by reference.
Item 3.02. Unregistered Sales of Equity Securities.
The information set forth under Items 1.01 and 2.03 of this Current Report on Form8-K is incorporated herein by reference.
The Company’s offering of the Notes to the Initial Purchasers was made in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”). The Company relied on this exemption from registration based in part on representations made by the Initial Purchasers in the Purchase Agreement, including that the Initial Purchasers would only offer, sell or deliver the Notes to persons whom they reasonably believe to be qualified institutional buyers within the meaning of Rule 144A under the Securities Act.
The Notes and the shares of the Company’s Class A common stock issuable upon conversion of the Notes have not been registered under the Securities Act and may not be offered or sold in the United States absent registration or applicable exemption from registration requirements.
