Common use of Non-US Merger Transactions Clause in Contracts

Non-US Merger Transactions. Issuer shall not enter into or consummate any Non-US Merger Transaction (other than the Permitted Tornier Merger Transaction) unless the successor Issuer immediately following such Non-US Merger Transaction repeats to Dealer immediately following such Non-US Merger Transaction the representations and warranties set forth in Sections 8(a), 8(b), 8(c) and 8(d) of this Confirmation (as if references therein to (i) “execute, deliver” were replaced with “assume”, (ii) “execution, delivery” and “execution and delivery” were replaced with “assumption” and (iii) “executed and delivered” were replaced with “assumed”). Notwithstanding anything to the contrary in this Confirmation if (a) at or prior to the Tornier Merger Transaction, (1) Issuer enters into or consummates any Non-US Merger Transaction pursuant to which Issuer following such Non-US Merger Transaction is not a corporation organized under the laws of the United States, any State thereof or the District of Columbia (or, solely in the case of the Tornier Merger Transaction, not a Dutch public limited company or an entity treated as a corporation for U.S. federal income tax purposes organized and existing under the laws of the Netherlands), or (2) Counterparty ceases to be a corporation organized under the laws of the United States, any State thereof or the District of Columbia that is Issuer or a wholly-owned subsidiary of Issuer, or (3) Issuer enters into or consummates any Non-US Merger Transaction and does not comply with the requirements of the immediately previous paragraph of this Section 9(v), or (b) after the Tornier Merger Transaction, (1) Issuer enters into or consummates any Non-US Merger Transaction pursuant to which Issuer following such Non-US Merger Transaction is organized under the laws of a jurisdiction other than the Islands of Bermuda, the Netherlands, Belgium, Switzerland, Luxembourg, the Republic of Ireland, Canada or the United Kingdom, (2) Counterparty ceases to be a corporation organized under the laws of the United States, any State thereof or the District of Columbia that is a wholly-owned subsidiary of Issuer, or (3) Issuer enters into or consummates any Non-US Merger Transaction and does not comply with the requirements of the immediately previous paragraph of this Section 9(v), then, in any such case of clauses (a) and (b), such transaction or event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. If, at any time following the occurrence of any Non-US Merger Transaction (other than the Permitted Tornier Merger Transaction), Dealer determines in good faith that (x) such Non-US Merger Transaction has had an adverse effect on Dealer’s rights and obligations under the Transaction or (y) Dealer would incur an increased amount of tax, duty, expense or fee to (1) acquire, establish, re-establish, substitute, maintain, unwind or dispose of any transaction(s) or asset(s) it deems necessary to hedge the economic risk of entering into and performing its obligations with respect to the Transaction, or (2) realize, recover or remit the proceeds of any such transaction(s) or asset(s) (each of the events described in clause (x) and clause (y) above, a “Non-US Merger Event”), then, in either case, Dealer shall give notice to Counterparty of such Non-US Merger Event. Concurrently with delivering such notice, Dealer shall give notice to Counterparty of a Price Adjustment that Dealer reasonably and in good faith determines appropriate to account for the economic effect on the Transaction of such Non-US Merger Event (unless Dealer determines that no Price Adjustment will produce a commercially reasonably result, in which case Dealer shall so notify Counterparty). Unless Dealer determines in good faith that no Price Adjustment will produce a commercially reasonably result, within one Scheduled Trading Day of receipt of such notice, Counterparty shall notify Dealer that it elects to (A) agree to amend the Transaction to take into account such Price Adjustment or (B) pay Dealer the amount determined by Dealer that corresponds to such Price Adjustment (and, in each case, Counterparty shall repeat the representation set forth in Section 8(f) of this Confirmation (which representation is confirmed to Dealer in writing by Issuer, if other than Counterparty) as of the date of such election). If Counterparty fails to give such notice to Dealer of its election in accordance with the foregoing by the end of that first Scheduled Trading Day, or if Dealer determines that no Price Adjustment will produce a commercially reasonably result, then such failure or such determination, as the case may be, shall constitute an Additional Termination Event applicable to the Transaction (it being understood that in the case of a Non-US Merger Event solely pursuant to clause (x) of the definition thereof, such determination shall constitute an Additional Termination Event only if the relevant adverse effect may have a material impact on Dealer’s rights and obligations under the Transaction, as determined by Dealer in good faith) and, with respect to such Additional Termination Event, (1) Counterparty shall be deemed to be the sole Affected Party, (2) the Transaction shall be the sole Affected Transaction and (3) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. For the avoidance of doubt, the parties hereto agree and acknowledge that (I) the occurrence of an Non-US Merger Event shall not preclude the occurrence of one or more additional, subsequent Non-US Merger Events and (II) if a Non-US Merger Event occurs, Dealer will determine, in its sole discretion, whether to exercise its rights under the provisions of this Section 9(v) and/or the rights and remedies of Dealer and its affiliates under any other provision of this Confirmation, the Equity Definitions and the Agreement.

Non-US Merger Transactions. Issuer shall not enter into or consummate any Non-US Merger Transaction (other than the Permitted Tornier Merger Transaction) unless the successor Issuer immediately following such Non-US Merger Transaction repeats to Dealer immediately following such Non-US Merger Transaction the representations and warranties set forth in Sections 8(a), 8(b), 8(c) and 8(d) of this Confirmation (as if references therein to (i) “execute, deliver” were replaced with “assume”, (ii) “execution, delivery” and “execution and delivery” were replaced with “assumption” and (iii) “executed and delivered” were replaced with “assumed”). Notwithstanding anything to the contrary in this Confirmation if (a) at or prior to the Tornier Merger Transaction, (1) Issuer enters into or consummates any “Non-US Merger Transaction Transaction” means any Merger Event, reincorporation of Issuer, corporate inversion of Issuer or similar transaction pursuant to which Issuer following such Non-US Merger Transaction (x) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is not a corporation or is not organized under the laws of the United States, any State thereof or the District of Columbia (or, solely in the case of the Tornier Merger Transaction, not a Dutch public limited company or an entity treated as a corporation for U.S. federal income tax purposes organized and existing under the laws of the Netherlands), or (2y) Counterparty ceases to be the Issuer following such Merger Event, reincorporation of Issuer or corporate inversion of Issuer is organized in a corporation organized under the laws of jurisdiction other than the United States, any State thereof or the District of Columbia that is Issuer or a wholly-owned subsidiary of Issuer, or (3) Issuer enters into or consummates any Non-US Merger Transaction and does not comply with Columbia. Notwithstanding anything to the requirements of the immediately previous paragraph of contrary in this Section 9(v), or (b) after the Tornier Merger Transaction, Confirmation if (1) Issuer enters into or consummates any Non-US Merger Transaction pursuant to which Issuer following such Non-US Merger Transaction is organized under the laws of a jurisdiction other than the Islands of Bermuda, the Netherlands, Belgium, Switzerland, Luxembourg, the Republic of Ireland, Canada or the United Kingdom, (2) Counterparty Company ceases to be Issuer or a corporation organized under the laws of the United States, any State thereof or the District of Columbia that is a wholly-wholly owned subsidiary of Issuer, Issuer whose obligations under the Transaction are fully and unconditionally guaranteed by the Issuer or (3) Issuer enters into or consummates any Non-US Merger Transaction and does not comply with the requirements of the immediately previous paragraph of this Section 9(v9(y), then, in any such case of clauses (a) and (b1), (2) or (3) such transaction or event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty Company shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. If, at any time following the occurrence of any Non-US Merger Transaction (other than the Permitted Tornier Merger Transaction), Dealer determines in good faith that (x) such Non-US Merger Transaction has had an adverse effect on Dealer’s rights and obligations under the Transaction or (y) Dealer would incur an increased amount of tax, duty, expense or fee to (1) acquire, establish, re-establish, substitute, maintain, unwind or dispose of any transaction(s) or asset(s) it deems necessary to hedge the economic risk of entering into and performing its obligations with respect to the Transaction, or (2) realize, recover or remit the proceeds of any such transaction(s) or asset(s) (each of the events described in clause (x) and clause (y) above, a “Non-US Merger Event”), then, in either case, Dealer shall give notice to Counterparty Company of such Non-US Merger Event. Concurrently with delivering such notice, Dealer shall give notice to Counterparty Company of a Price Adjustment that Dealer reasonably and in good faith determines appropriate to account for the economic effect on the Transaction of such Non-US Merger Event (unless Dealer determines that no Price Adjustment will produce a commercially reasonably result, in which case Dealer shall so notify CounterpartyCompany). Unless Dealer determines in good faith that no Price Adjustment will produce a commercially reasonably result, within one Scheduled Trading Day of receipt of such notice, Counterparty Company shall notify Dealer that it elects to (A) agree to amend the Transaction to take into account such Price Adjustment or (B) pay Dealer the an amount determined by Dealer that corresponds to such Price Adjustment (and, in each case, Counterparty Company shall repeat the representation set forth in Section 8(f8(g) of this Confirmation (which representation is confirmed to Dealer in writing by Issuer, if other than CounterpartyCompany) as of the date of such election). If Counterparty Company fails to give such notice to Dealer of its election in accordance with the foregoing by the end of that first Scheduled Trading Day, or if Dealer determines that no Price Adjustment will produce a commercially reasonably result, then such failure or such determination, as the case may be, shall constitute an Additional Termination Event applicable to the Transaction (it being understood that in the case of a Non-US Merger Event solely pursuant to clause (x) of the definition thereof, such determination shall constitute an Additional Termination Event only if the relevant adverse effect may have a material impact on Dealer’s rights and obligations under the Transaction, as determined by Dealer in good faith) and, with respect to such Additional Termination Event, (1) Counterparty Company shall be deemed to be the sole Affected Party, (2) the Transaction shall be the sole Affected Transaction and (3) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. For the avoidance of doubt, the parties hereto agree and acknowledge that (I) the occurrence of an Non-US Merger Event shall not preclude the occurrence of one or more additional, subsequent Non-US Merger Events and (II) if a Non-US Merger Event occurs, Dealer will determine, in its sole discretion, whether to exercise its rights under the provisions of this Section 9(v9(y) and/or the rights and remedies of Dealer and its affiliates under any other provision of this Confirmation, the Equity Definitions and the Agreement. Upon Company’s request prior to the consummation of any Non-US Merger Transaction, Dealer will provide Company with a good faith estimate of an indicative, non-binding price at which Dealer would effect a transfer or assignment of the Warrants to a third party corporate equity derivatives dealer as of the date of such indicative, non-binding price (it being understood that such indicative, non-binding price will not in any way commit Dealer to effecting such a transfer or assignment, whether at such price or at any price, and that any such transfer or assignment will be effected by Dealer in its sole discretion on pricing and other terms acceptable to Dealer, including with respect to Dealer’s Hedge Positions with respect to the Warrants and any applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to Dealer). In addition, upon Company’s request prior to the consummation of any Non-US Merger Transaction in which Company sets forth in reasonable detail the terms of such Non-US Merger Transaction and any Non-US Merger Event that Company believes may apply in connection therewith, Dealer will provide Company with a good faith estimate of an indicative, non-binding Price Adjustment, if any, that Dealer determines at such time would account for the economic effect on the Transaction of such Non-US Merger Transaction and Non-US Merger Event, if any, based on information related thereto provided to Dealer by the Company (it being understood that such indicative, non-binding Price Adjustment will not in any way limit or alter Dealer’s adjustment or other rights in respect of the Warrants with respect to such Non-US Merger Transaction or Non-US Merger Event or any events or circumstances arising in connection therewith); provided that, Dealer will not be required to provide any such Price Adjustment if Dealer determines, in good faith, that it would not be practicable to do so using reasonable efforts and/or it would not be advisable to do so with respect to any applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to Dealer. Company agrees to pay the reasonable and documented fees and expenses of legal counsel to Dealer (which may include, without limitation, special counsel in connection with certain matters under the law of any applicable foreign jurisdiction) in connection with any such indicative, non-binding price or Price Adjustment, as applicable, and any determinations in connection therewith, at such times, and from time to time, as requested by Dealer.

Non-US Merger Transactions. Issuer shall not enter into or consummate any Non-US Merger Transaction (other than the Permitted Tornier Merger Transaction) unless the successor Issuer immediately following such Non-US Merger Transaction either (x) repeats to Dealer immediately following such Non-US Merger Transaction the representations and warranties set forth in Sections 8(a), 8(b), 8(c) and 8(d) of this Confirmation (as if references therein to (i) “execute, deliver” were replaced with “assume”, (ii) “execution, delivery” and “execution and delivery” were replaced with “assumption” and (iii) “executed and delivered” were replaced with “assumed”)) or (y) solely in the case of the Tornier Merger Transaction, executes and delivers to Dealer an amendment to this Confirmation substantially in the form of Exhibit A hereto within the time period set forth under Section 9(h)(ii)(G) above. For the avoidance of doubt, clause (x) of this paragraph shall not apply to the Permitted Tornier Merger Transaction. Notwithstanding anything to the contrary in this Confirmation if (a) at or prior to the Tornier Merger Transaction, (1) Issuer enters into or consummates any Non-US Merger Transaction pursuant to which Issuer following such Non-US Merger Transaction is not a corporation organized under the laws of the United States, any State thereof or the District of Columbia U.S. Entity (or, solely in the case of the Tornier Merger TransactionTransaction that occurs prior to the Cut-Off Date, not a Dutch public limited company or an entity treated as a corporation for U.S. federal income tax purposes organized and existing under the laws of the Netherlands), or (2) Counterparty Company ceases to be a corporation organized under the laws of the United States, any State thereof or the District of Columbia that is Issuer or (except solely as a whollyresult of the Tornier Merger Transaction that occurs prior to the Cut-owned subsidiary of IssuerOff Date), or (3) Issuer enters into or consummates any Non-US Merger Transaction and does not comply with the requirements of the immediately previous paragraph of this Section 9(v9(y), or (b) after the Tornier Merger Transaction, (1) Issuer enters into or consummates any Non-US Merger Transaction pursuant to which Issuer following such Non-US Merger Transaction is organized under the laws of a jurisdiction other than the Islands of Bermuda, the Netherlands, Belgium, Switzerland, Luxembourg, the Republic of Ireland, Canada or the United KingdomKingdom that also becomes Company hereunder, (2) Counterparty Company ceases to be a corporation organized under the laws of the United States, any State thereof or the District of Columbia that is a wholly-owned subsidiary of Issuer, Issuer or (3) Issuer enters into or consummates any Non-US Merger Transaction and does not comply with the requirements of the immediately previous paragraph of this Section 9(v9(y), then, in any such case of clauses (a) and (b), such transaction or event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty Company shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. If, at any time following the occurrence of any Non-US Merger Transaction (other than the Permitted Tornier Merger Transaction), Dealer determines in good faith that (x) such Non-US Merger Transaction has had an adverse effect on Dealer’s rights and obligations under the Transaction or (y) Dealer would incur an increased amount of tax, duty, expense or fee to (1) acquire, establish, re-establish, substitute, maintain, unwind or dispose of any transaction(s) or asset(s) it deems necessary to hedge the economic risk of entering into and performing its obligations with respect to the Transaction, or (2) realize, recover or remit the proceeds of any such transaction(s) or asset(s) (each of the events described in clause (x) and clause (y) above, a “Non-US Merger Event”), then, in either case, Dealer shall give notice to Counterparty Company of such Non-US Merger Event. Concurrently with delivering such notice, Dealer shall give notice to Counterparty Company of a Price Adjustment that Dealer reasonably and in good faith determines appropriate to account for the economic effect on the Transaction of such Non-US Merger Event (unless Dealer determines that no Price Adjustment will produce a commercially reasonably result, in which case Dealer shall so notify CounterpartyCompany). Unless Dealer determines in good faith that no Price Adjustment will produce a commercially reasonably result, within one Scheduled Trading Day of receipt of such notice, Counterparty Company shall notify Dealer that it elects to (A) agree to amend the Transaction to take into account such Price Adjustment or (B) pay Dealer the an amount determined by Dealer that corresponds to such Price Adjustment (and, in each case, Counterparty Company shall repeat the representation set forth in Section 8(f8(g) of this Confirmation (which representation is confirmed to Dealer in writing by Issuer, if other than CounterpartyCompany) as of the date of such election). If Counterparty Company fails to give such notice to Dealer of its election in accordance with the foregoing by the end of that first Scheduled Trading Day, or if Dealer determines that no Price Adjustment will produce a commercially reasonably result, then such failure or such determination, as the case may be, shall constitute an Additional Termination Event applicable to the Transaction (it being understood that in the case of a Non-US Merger Event solely pursuant to clause (x) of the definition thereof, such determination shall constitute an Additional Termination Event only if the relevant adverse effect may have a material impact on Dealer’s rights and obligations under the Transaction, as determined by Dealer in good faith) and, with respect to such Additional Termination Event, (1) Counterparty Company shall be deemed to be the sole Affected Party, (2) the Transaction shall be the sole Affected Transaction and (3) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. For the avoidance of doubt, the parties hereto agree and acknowledge that (I) the occurrence of an Non-US Merger Event shall not preclude the occurrence of one or more additional, subsequent Non-US Merger Events and (II) if a Non-US Merger Event occurs, Dealer will determine, in its sole discretion, whether to exercise its rights under the provisions of this Section 9(v9(y) and/or the rights and remedies of Dealer and its affiliates under any other provision of this Confirmation, the Equity Definitions and the Agreement.

Non-US Merger Transactions. Issuer shall not enter into or consummate any Non-US Merger Transaction (other than the Permitted Tornier Merger Transaction) unless the successor Issuer immediately following such Non-US Merger Transaction repeats to Dealer immediately following such Non-US Merger Transaction the representations and warranties set forth in Sections 8(a), 8(b), 8(c) and 8(d) of this Confirmation (as if references therein to (i) “execute, deliver” were replaced with “assume”, (ii) “execution, delivery” and “execution and delivery” were replaced with “assumption” and (iii) “executed and delivered” were replaced with “assumed”). Notwithstanding anything to the contrary in this Confirmation if (a) at or prior to the Tornier Merger Transaction, (1) Issuer enters into or consummates any Non-US Merger Transaction pursuant to which Issuer following such Non-US Merger Transaction is not a corporation organized under the laws of the United States, any State thereof or the District of Columbia (or, solely in the case of the Tornier Merger Transaction, not a Dutch public limited company or an entity treated as a corporation for U.S. federal income tax purposes organized and existing under the laws of the Netherlands), or (2) Counterparty ceases to be a corporation organized under the laws of the United States, any State thereof or the District of Columbia that is Issuer or a wholly-owned subsidiary of Issuer, or (3) Issuer enters into or consummates any Non-US Merger Transaction and does not comply with the requirements of the immediately previous paragraph of this Section 9(v), or (b) after the Tornier Merger Transaction, (1) Issuer enters into or consummates any Non-US Merger Transaction pursuant to which Issuer following such Non-US Merger Transaction is organized under the laws of a jurisdiction other than the Islands of Bermuda, the Netherlands, Belgium, Switzerland, Luxembourg, the Republic of Ireland, Canada or the United KingdomKingdom that also becomes Company hereunder, (2) Counterparty Company ceases to be a corporation organized under the laws of the United States, any State thereof or the District of Columbia that is a wholly-owned subsidiary of Issuer, Issuer or (3) Issuer enters into or consummates any Non-US Merger Transaction and does not comply with the requirements of the immediately previous paragraph of this Section 9(v9(y), then, in any such case of clauses (a) and (b1), (2) or (3) such transaction or event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty Company shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. If, at any time following the occurrence of any Non-US Merger Transaction (other than the Permitted Tornier Merger Transaction), Dealer determines in good faith that (x) such Non-US Merger Transaction has had an adverse effect on Dealer’s rights and obligations under the Transaction or (y) Dealer would incur an increased amount of tax, duty, expense or fee to (1) acquire, establish, re-establish, substitute, maintain, unwind or dispose of any transaction(s) or asset(s) it deems necessary to hedge the economic risk of entering into and performing its obligations with respect to the Transaction, or (2) realize, recover or remit the EXECUTION VERSION proceeds of any such transaction(s) or asset(s) (each of the events described in clause (x) and clause (y) above, a “Non-US Merger Event”), then, in either case, Dealer shall give notice to Counterparty Company of such Non-US Merger Event. Concurrently with delivering such notice, Dealer shall give notice to Counterparty Company of a Price Adjustment that Dealer reasonably and in good faith determines appropriate to account for the economic effect on the Transaction of such Non-US Merger Event (unless Dealer determines that no Price Adjustment will produce a commercially reasonably result, in which case Dealer shall so notify CounterpartyCompany). Unless Dealer determines in good faith that no Price Adjustment will produce a commercially reasonably result, within one Scheduled Trading Day of receipt of such notice, Counterparty Company shall notify Dealer that it elects to (A) agree to amend the Transaction to take into account such Price Adjustment or (B) pay Dealer the an amount determined by Dealer that corresponds to such Price Adjustment (and, in each case, Counterparty Company shall repeat the representation set forth in Section 8(f8(g) of this Confirmation (which representation is confirmed to Dealer in writing by Issuer, if other than CounterpartyCompany) as of the date of such election). If Counterparty Company fails to give such notice to Dealer of its election in accordance with the foregoing by the end of that first Scheduled Trading Day, or if Dealer determines that no Price Adjustment will produce a commercially reasonably result, then such failure or such determination, as the case may be, shall constitute an Additional Termination Event applicable to the Transaction (it being understood that in the case of a Non-US Merger Event solely pursuant to clause (x) of the definition thereof, such determination shall constitute an Additional Termination Event only if the relevant adverse effect may have a material impact on Dealer’s rights and obligations under the Transaction, as determined by Dealer in good faith) and, with respect to such Additional Termination Event, (1) Counterparty Company shall be deemed to be the sole Affected Party, (2) the Transaction shall be the sole Affected Transaction and (3) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. For the avoidance of doubt, the parties hereto agree and acknowledge that (I) the occurrence of an Non-US Merger Event shall not preclude the occurrence of one or more additional, subsequent Non-US Merger Events and (II) if a Non-US Merger Event occurs, Dealer will determine, in its sole discretion, whether to exercise its rights under the provisions of this Section 9(v9(y) and/or the rights and remedies of Dealer and its affiliates under any other provision of this Confirmation, the Equity Definitions and the Agreement.

Non-US Merger Transactions. Issuer shall not enter into or consummate any Non-US Merger Transaction (other than the Permitted Tornier Merger Transaction) unless the successor Issuer immediately following such Non-US Merger Transaction repeats to Dealer immediately following such Non-US Merger Transaction the representations and warranties set forth in Sections 8(a), 8(b), 8(c) and 8(d) of this Confirmation (as if references therein to (i) “execute, deliver” were replaced with “assume”, (ii) “execution, delivery” and “execution and delivery” were replaced with “assumption” and (iii) “executed and delivered” were replaced with “assumed”). Notwithstanding anything to the contrary in this Confirmation if (a) at or prior to the Tornier Merger Transaction, (1) Issuer enters into or consummates any Non-US Merger Transaction pursuant to which Issuer following such Non-US Merger Transaction is not a corporation organized under the laws of the United States, any State thereof or the District of Columbia (or, solely in the case of the Tornier Merger Transaction, not a Dutch public limited company or an entity treated as a corporation for U.S. federal income tax purposes organized and existing under the laws of the Netherlands), or (2) Counterparty ceases to be a corporation organized under the laws of the United States, any State thereof or the District of Columbia that is Issuer or a wholly-owned subsidiary of Issuer, or (3) Issuer enters into or consummates any Non-US Merger Transaction and does not comply with the requirements of the immediately previous paragraph of this Section 9(v), or (b) after the Tornier Merger Transaction, (1) Issuer enters into or consummates any Non-US Merger Transaction pursuant to which Issuer following such Non-US Merger Transaction is organized under the laws of a jurisdiction other than the Islands of Bermuda, the Netherlands, Belgium, Switzerland, Luxembourg, the Republic of Ireland, Canada or the United Kingdom, (2) Counterparty ceases to be a corporation organized under the laws of the Netherlands, the United States, any State thereof or the District of Columbia that is a wholly-owned subsidiary of Issuer, or (3) Issuer enters into or consummates any Non-US Merger Transaction and does not comply with the requirements of the immediately previous paragraph of this Section 9(v), then, in any such case of clauses (a) and (b), then such transaction or event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected EXECUTION VERSION Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. If, at any time following the occurrence of any Non-US Merger Transaction (other than the Permitted Tornier Merger Transaction), Dealer determines in good faith that (x) such Non-US Merger Transaction has had an adverse effect on Dealer’s rights and obligations under the Transaction or (y) Dealer would incur an increased amount of tax, duty, expense or fee to (1) acquire, establish, re-establish, substitute, maintain, unwind or dispose of any transaction(s) or asset(s) it deems necessary to hedge the economic risk of entering into and performing its obligations with respect to the Transaction, or (2) realize, recover or remit the proceeds of any such transaction(s) or asset(s) (each of the events described in clause (x) and clause (y) above, a “Non-US Merger Event”), then, in either case, Dealer shall give notice to Counterparty of such Non-US Merger Event. Concurrently with delivering such notice, Dealer shall give notice to Counterparty of a Price Adjustment that Dealer reasonably and in good faith determines appropriate to account for the economic effect on the Transaction of such Non-US Merger Event (unless Dealer determines that no Price Adjustment will produce a commercially reasonably result, in which case Dealer shall so notify Counterparty). Unless Dealer determines in good faith that no Price Adjustment will produce a commercially reasonably result, within one Scheduled Trading Day of receipt of such notice, Counterparty shall notify Dealer that it elects to (A) agree to amend the Transaction to take into account such Price Adjustment or (B) pay Dealer the amount determined by Dealer that corresponds to such Price Adjustment (and, in each case, Counterparty shall repeat the representation set forth in Section 8(f) of this Confirmation (which representation is confirmed to Dealer in writing by Issuer, if other than Counterparty) as of the date of such election). If Counterparty fails to give such notice to Dealer of its election in accordance with the foregoing by the end of that first Scheduled Trading Day, or if Dealer determines that no Price Adjustment will produce a commercially reasonably result, then such failure or such determination, as the case may be, shall constitute an Additional Termination Event applicable to the Transaction (it being understood that in the case of a Non-US Merger Event solely pursuant to clause (x) of the definition thereof, such determination shall constitute an Additional Termination Event only if the relevant adverse effect may have a material impact on Dealer’s rights and obligations under the Transaction, as determined by Dealer in good faith) and, with respect to such Additional Termination Event, (1) Counterparty shall be deemed to be the sole Affected Party, (2) the Transaction shall be the sole Affected Transaction and (3) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. For the avoidance of doubt, the parties hereto agree and acknowledge that (I) the occurrence of an Non-US Merger Event shall not preclude the occurrence of one or more additional, subsequent Non-US Merger Events and (II) if a Non-US Merger Event occurs, Dealer will determine, in its sole discretion, whether to exercise its rights under the provisions of this Section 9(v) and/or the rights and remedies of EXECUTION VERSION Dealer and its affiliates under any other provision of this Confirmation, the Equity Definitions and the Agreement.

Non-US Merger Transactions. Issuer shall not enter into or consummate any Non-US Merger Transaction (other than the Permitted Tornier Merger Transaction) unless the successor Issuer immediately following such Non-US Merger Transaction repeats to Dealer immediately following such Non-US Merger Transaction the representations and warranties set forth in Sections 8(a), 8(b), 8(c) and 8(d) of this Confirmation (as if references therein to (i) “execute, deliver” were replaced with “assume”, (ii) “execution, delivery” and “execution and delivery” were replaced with “assumption” and (iii) “executed and delivered” were replaced with “assumed”). Notwithstanding anything to the contrary in this Confirmation if (a) at or prior to the Tornier Merger Transaction, (1) Issuer enters into or consummates any “Non-US Merger Transaction Transaction” means any Merger Event, reincorporation of Issuer, corporate inversion of Issuer or similar transaction pursuant to which Issuer following such Non-US Merger Transaction (x) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is not a corporation or is not organized under the laws of the United States, any State thereof or the District of Columbia (or, solely in the case of the Tornier Merger Transaction, not a Dutch public limited company or an entity treated as a corporation for U.S. federal income tax purposes organized and existing under the laws of the Netherlands), or (2y) Counterparty ceases to be the Issuer following such Merger Event, reincorporation of Issuer or corporate inversion of Issuer is organized in a corporation organized under the laws of jurisdiction other than the United States, any State thereof or the District of Columbia that is Issuer or a wholly-owned subsidiary of Issuer, or (3) Issuer enters into or consummates any Non-US Merger Transaction and does not comply with Columbia. Notwithstanding anything to the requirements of the immediately previous paragraph of contrary in this Section 9(v), or (b) after the Tornier Merger Transaction, Confirmation if (1) Issuer enters into or consummates any Non-US Merger Transaction pursuant to which Issuer following such Non-US Merger Transaction is organized under the laws of a jurisdiction other than the Islands of Bermuda, the Netherlands, Belgium, Switzerland, Luxembourg, the Republic of Ireland, Canada or the United Kingdom, (2) Counterparty Company ceases to be Issuer or a corporation organized under the laws of the United States, any State thereof or the District of Columbia that is a wholly-wholly owned subsidiary of Issuer, Issuer whose obligations under the Transaction are fully and unconditionally guaranteed by the Issuer or (3) Issuer enters into or consummates any Non-US Merger Transaction and does not comply with the requirements of the immediately previous paragraph of this Section 9(v9(y), then, in any such case of clauses (a) and (b1), (2) or (3) such transaction or event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty Company shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. If, at any time following the occurrence of any Non-US Merger Transaction (other than the Permitted Tornier Merger Transaction), Dealer determines in good faith that (x) such Non-US Merger Transaction has had an adverse effect on Dealer’s rights and obligations under the Transaction or (y) Dealer would incur an increased amount of tax, duty, expense or fee to (1) acquire, establish, re-re- establish, substitute, maintain, unwind or dispose of any transaction(s) or asset(s) it deems necessary to hedge the economic risk of entering into and performing its obligations with respect to the Transaction, or (2) realize, recover or remit the proceeds of any such transaction(s) or asset(s) (each of the events described in clause (x) and clause (y) above, a “Non-US Merger Event”), then, in either case, Dealer shall give notice to Counterparty Company of such Non-US Merger Event. Concurrently with delivering such notice, Dealer shall give notice to Counterparty Company of a Price Adjustment that Dealer reasonably and in good faith determines appropriate to account for the economic effect on the Transaction of such Non-US Merger Event (unless Dealer determines that no Price Adjustment will produce a commercially reasonably result, in which case Dealer shall so notify CounterpartyCompany). Unless Dealer determines in good faith that no Price Adjustment will produce a commercially reasonably result, within one Scheduled Trading Day of receipt of such notice, Counterparty Company shall notify Dealer that it elects to (A) agree to amend the Transaction to take into account such Price Adjustment or (B) pay Dealer the an amount determined by Dealer that corresponds to such Price Adjustment (and, in each case, Counterparty Company shall repeat the representation set forth in Section 8(f8(g) of this Confirmation (which representation is confirmed to Dealer in writing by Issuer, if other than CounterpartyCompany) as of the date of such election). If Counterparty Company fails to give such notice to Dealer of its election in accordance with the foregoing by the end of that first Scheduled Trading Day, or if Dealer determines that no Price Adjustment will produce a commercially reasonably result, then such failure or such determination, as the case may be, shall constitute an Additional Termination Event applicable to the Transaction (it being understood that in the case of a Non-US Merger Event solely pursuant to clause (x) of the definition thereof, such determination shall constitute an Additional Termination Event only if the relevant adverse effect may have a material impact on Dealer’s rights and obligations under the Transaction, as determined by Dealer in good faith) and, with respect to such Additional Termination Event, (1) Counterparty Company shall be deemed to be the sole Affected Party, (2) the Transaction shall be the sole Affected Transaction and (3) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. For the avoidance of doubt, the parties hereto agree and acknowledge that (I) the occurrence of an Non-US Merger Event shall not preclude the occurrence of one or more additional, subsequent Non-US Merger Events and (II) if a Non-US Merger Event occurs, Dealer will determine, in its sole discretion, whether to exercise its rights under the provisions of this Section 9(v9(y) and/or the rights and remedies of Dealer and its affiliates under any other provision of this Confirmation, the Equity Definitions and the Agreement. Upon Company’s request prior to the consummation of any Non-US Merger Transaction, Dealer will provide Company with a good faith estimate of an indicative, non-binding price at which Dealer would effect a transfer or assignment of the Warrants to a third party corporate equity derivatives dealer as of the date of such indicative, non-binding price (it being understood that such indicative, non-binding price will not in any way commit Dealer to effecting such a transfer or assignment, whether at such price or at any price, and that any such transfer or assignment will be effected by Dealer in its sole discretion on pricing and other terms acceptable to Dealer, including with respect to Dealer’s Hedge Positions with respect to the Warrants and any applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to Dealer). In addition, upon Company’s request prior to the consummation of any Non-US Merger Transaction in which Company sets forth in reasonable detail the terms of such Non-US Merger Transaction and any Non-US Merger Event that Company believes may apply in connection therewith, Dealer will provide Company with a good faith estimate of an indicative, non-binding Price Adjustment, if any, that Dealer determines at such time would account for the economic effect on the Transaction of such Non-US Merger Transaction and Non-US Merger Event, if any, based on information related thereto provided to Dealer by the Company (it being understood that such indicative, non-binding Price Adjustment will not in any way limit or alter Dealer’s adjustment or other rights in respect of the Warrants with respect to such Non-US Merger Transaction or Non-US Merger Event or any events or circumstances arising in connection therewith); provided that, Dealer will not be required to provide any such Price Adjustment if Dealer determines, in good faith, that it would not be practicable to do so using reasonable efforts and/or it would not be advisable to do so with respect to any applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to Dealer. Company agrees to pay the reasonable and documented fees and expenses of legal counsel to Dealer (which may include, without limitation, special counsel in connection with certain matters under the law of any applicable foreign jurisdiction) in connection with any such indicative, non-binding price or Price Adjustment, as applicable, and any determinations in connection therewith, at such times, and from time to time, as requested by Dealer.