Common use of Potential Adjustment Events Clause in Contracts

Potential Adjustment Events. Notwithstanding Section 11.2(e) of the Equity Definitions, a “Potential Adjustment Event” means an occurrence of any event or condition, as set forth in any Dilution Adjustment Provision, that would result in an adjustment to the “Conversion Rate” or to any “Last Reported Sale Price,” “Daily VWAP,” “Daily Conversion Value” or “Daily Settlement Amount” (each as defined in the Indenture) of the Convertible Notes. Method of Adjustment: Calculation Agent Adjustment, which means that, notwithstanding Section 11.2(c) of the Equity Definitions, upon any Potential Adjustment Event, the Calculation Agent shall make a corresponding adjustment to any one or more of the Strike Price, the Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction to the extent an analogous adjustment would be made pursuant to the Indenture in connection with such Potential Adjustment Event; provided that, notwithstanding the foregoing, if the Calculation Agent in good faith disagrees with any adjustment to the Convertible Notes that involves an exercise of discretion by Counterparty or its board of directors (including, without limitation, pursuant to Section 13.05 of the Indenture or in connection with any proportional adjustment or the determination of the fair value of any securities, property, rights or other assets), then in each such case, the Calculation Agent will determine the adjustment to be made to any one or more of the Strike Price, the Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction in a commercially reasonable manner by making such adjustment by exercising its discretion on such matters in lieu of the exercise of discretion made by Counterparty or its board of directors, as the case may be. Dilution Adjustment Provisions: Sections 13.04(a), 13.04(b), 13.04(c), 13.04(d), 13.04(e) and 13.05 of the Indenture. Extraordinary Events applicable to the Transaction: Merger Events: Notwithstanding Section 12.1(b) of the Equity Definitions, which shall not apply with respect to the Transaction, a “Merger Event” means the occurrence of any event or condition set forth in the definition of “Merger Event” in Section 13.07(a) of the Indenture. Tender Offers: Not Applicable Consequence of Merger Events: Notwithstanding Section 12.2 of the Equity Definitions, upon the occurrence of a Merger Event, the Calculation Agent shall make a corresponding adjustment in respect of any adjustment under the Indenture to the nature of the Shares to the extent an analogous adjustment would be made pursuant to the Indenture in connection with such Merger Event; provided, however, that no adjustment shall be made in respect of any adjustment to the Conversion Rate pursuant to any Excluded Provision; provided further that if, with respect to a Merger Event, (i) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is not a corporation or is not organized under the laws of the United States, any State thereof or the District of Columbia or (ii) the Counterparty to the Transaction following such Merger Event will not be either (A) the Issuer or (B) a wholly-owned subsidiary of the Issuer whose obligations under the Transaction are fully and unconditionally guaranteed by the Issuer, then Dealer, in its sole discretion, may elect for Cancellation and Payment (Calculation Agent Determination) to apply. Nationalization, Insolvency or Delisting: Cancellation and Payment (Calculation Agent Determination); provided that, in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it will also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed or re-quoted on any of The New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors), such exchange or quotation system shall thereafter be deemed to be the Exchange. Restrictions on Adjustments: Notwithstanding anything to the contrary in the Equity Definitions or this Confirmation, none of the events listed in Section 13.04(j) of the Indenture will constitute a Potential Adjustment Event or a Merger Event, and no adjustment will be made to the Transaction in connection with any such event pursuant to the Equity Definitions (as amended by this Confirmation) or otherwise. Additional Disruption Events: Change in Law: Applicable; provided that (i) 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),” and (ii) Section 12.9(a)(ii)(X) of the Equity Definitions is hereby amended by replacing the word “Shares” with the phrase “Hedge Positions”. Failure to Deliver: Not Applicable Hedging Disruption: Applicable; provided that:

Potential Adjustment Events. Notwithstanding Section 11.2(e) of the Equity Definitions, a “Potential Adjustment Event” means an occurrence of any event or condition, as set forth in any Dilution Adjustment Provision, condition that would result in an adjustment under the Indenture to the “Conversion Rate” or to any “Last Reported Sale Price,” “Daily VWAP,” “Daily Conversion Value” or “Daily Settlement Amount” (each as defined in under the Indenture); provided that in no event shall there be any adjustment hereunder as a result of an adjustment to the Conversion Rate pursuant to Section 14.04(h) or Section 14.03 of the Convertible NotesIndenture. Method of Adjustment: Calculation Agent Adjustment, which means that, notwithstanding Section 11.2(c) of the Equity Definitions, upon any Potential Adjustment Event, the Calculation Agent shall make a corresponding adjustment to any one or more of the Strike Price, the Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction to the extent an analogous adjustment would be made pursuant to the Indenture in connection with such Potential Adjustment EventTransaction; provided that, notwithstanding the foregoing, if the Calculation Agent in good faith disagrees with any adjustment to the Convertible Notes that involves an exercise of discretion by Counterparty or its board of directors (including, without limitation, pursuant to Section 13.05 14.05 of the Indenture or in connection with any proportional adjustment or the determination of the fair value of any securities, property, rights or other assets), then in each such case, Dealer shall negotiate in good faith with Counterparty to resolve such disagreement (it being understood and agreed by the parties hereto that if Dealer and Counterparty are unable, after a commercially reasonable period of time, to resolve such disagreement through negotiation, the Calculation Agent will shall determine the adjustment to be made to any one or more of the Strike Price, the Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction in a commercially reasonable manner by making manner); provided further that, notwithstanding the foregoing, if any Potential Adjustment Event occurs during the Settlement Averaging Period but no adjustment was made to any Convertible Note under the Indenture because the relevant Holder (as such adjustment by exercising its discretion on such matters term is defined in lieu the Indenture) was deemed to be a record owner of the exercise of discretion made by Counterparty or its board of directorsunderlying Shares on the related Conversion Date, then the Calculation Agent shall, subject to Section 4 hereof, make an adjustment, as determined by it in a commercially reasonable manner, to the case may be. Dilution terms hereof in order to account for such Potential Adjustment Provisions: Sections 13.04(a), 13.04(b), 13.04(c), 13.04(d), 13.04(e) and 13.05 of the IndentureEvent. Extraordinary Events applicable to the Transaction: Merger Events: Notwithstanding Applicable; provided that notwithstanding Section 12.1(b) of the Equity Definitions, which shall not apply with respect to the Transaction, a “Merger Event” means the occurrence of any event or condition set forth in the definition of “Merger Event” in Section 13.07(a14.07(a) of the Indenture. Tender Offers: Not Applicable Applicable; provided that notwithstanding Section 12.1(d) of the Equity Definitions, a “Tender Offer” means the occurrence of any event or condition set forth in Section 14.04(e) of the Indenture. Consequence of Merger EventsEvents/ Tender Offers: Notwithstanding Section 12.2 and Section 12.3 of the Equity Definitions, upon the occurrence of a Merger EventEvent or a Tender Offer, the Calculation Agent shall make a corresponding adjustment in respect of any adjustment under the Indenture to any one or more of the nature of the Shares Shares, Strike Price, the Option Entitlement and any other variable relevant to the extent an analogous adjustment would be made pursuant to exercise, settlement or payment for the Indenture in connection with such Merger EventTransaction; provided, however, that no such adjustment shall be made in respect of without regard to any adjustment to the Conversion Rate pursuant to any Excluded Provisionfor the issuance of additional shares as set forth in Section 14.03 of the Indenture; provided further that if, with respect to a Merger EventEvent or a Tender Offer, (i) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is not a corporation or is not organized under the laws of the United States, any State thereof or the District of Columbia or (ii) the Counterparty to the Transaction following such Merger Event will not be either (A) the Issuer or (B) a wholly-owned subsidiary of the Issuer whose obligations under the Transaction are fully and unconditionally guaranteed by the Issuer, then Dealer, in its sole discretion, may elect for Columbia,” Cancellation and Payment (Calculation Agent Determination) to may apply. Nationalization, Insolvency or Delisting: Cancellation and Payment (Calculation Agent Determination); provided that, in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it will also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed listed, re-traded or re-quoted on any of The the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed listed, re-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors), such exchange or quotation system shall thereafter be deemed to be the Exchange. Restrictions on Adjustments: Notwithstanding anything to the contrary in the Equity Definitions or this Confirmation, none of the events listed in Section 13.04(j) of the Indenture will constitute a Potential Adjustment Event or a Merger Event, and no adjustment will be made to the Transaction in connection with any such event pursuant to the Equity Definitions (as amended by this Confirmation) or otherwise. Additional Disruption Events: Change in Law: Applicable; provided that (i) Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the parenthetical beginning after the word “regulationShares” with the phrase “Hedge Positions” in clause (X) thereof and (ii) inserting the second line thereof with the words parenthetical “(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),” and at the end of clause (iiA) Section 12.9(a)(ii)(X) of the Equity Definitions is hereby amended by replacing the word “Shares” with the phrase “Hedge Positions”thereof. Failure to Deliver: Not Applicable Hedging Disruption: Applicable; provided that:

Potential Adjustment Events. Notwithstanding Section 11.2(e) of the Equity Definitions, a “Potential Adjustment Event” means an any occurrence of any event or condition, as set forth in any Dilution Adjustment ProvisionSection 8.04(i), 8.04(a)–(e) or 8.05 of the Supplemental Indenture, that would result in an adjustment under the Indenture to the “Conversion Rate” or to any “Last Reported Sale Price,” “Daily VWAP,” “Daily Conversion Value” or “Daily Settlement Amount” (each as defined in the Indenture) other term of the Convertible Notes; provided that in no event shall there be any adjustment hereunder as a result of a Fundamental Change Adjustment or a Discretionary Adjustment. Notwithstanding anything to the contrary herein, (i) Dealer shall not have any delivery obligation hereunder in respect of any “Distributed Property” delivered by Counterparty to which the fifth sentence of Section 8.04(c) of the Supplemental Indenture would apply and no adjustment shall be made to the terms of the Transaction on account of the delivery of such “Distributed Property” to holders of the Shares and (ii) if Counterparty pays a cash dividend to which the last paragraph of Section 8.04(d) of the Supplemental Indenture would apply, Dealer will pay to Counterparty an amount of cash equal to the amount of such cash dividend that Dealer or its affiliate receives on its Hedge Positions in respect of the Transaction promptly following Dealer’s receipt thereof. Method of Adjustment: Calculation Agent Adjustment, which means that, notwithstanding Section 11.2(c) of the Equity Definitions, upon any Potential Adjustment EventEvent (excluding, for the avoidance of doubt, any Fundamental Change Adjustment or Discretionary Adjustment), the Calculation Agent shall make a corresponding adjustment to any one or more of the Strike Price, Number of Note Hedging Units, the Option Entitlement Note Hedging Unit Entitlement, the composition of the Shares and any other variable relevant to the exercise, settlement settlement, payment or payment for other terms of the Transaction (subject to the extent an analogous adjustment would be made pursuant to the Indenture in connection with such Potential Adjustment Event; provided that, notwithstanding the foregoing, if the Calculation Agent in good faith disagrees with any adjustment to the Convertible Notes that involves an exercise of discretion by Counterparty or its board of directors (including, without limitation, pursuant to Section 13.05 of the Indenture or in connection with any proportional adjustment or the determination of the fair value of any securities, property, rights or other assets), then in each such case, the Calculation Agent will determine the adjustment to be made to any one or more of the Strike Price, the Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction in a commercially reasonable manner by making such adjustment by exercising its discretion on such matters in lieu of the exercise of discretion made by Counterparty or its board of directors, as the case may be. Dilution Adjustment Provisions: Sections 13.04(a), 13.04(b), 13.04(c), 13.04(d), 13.04(e) and 13.05 of the Indenture. Extraordinary Events applicable to the Transaction: Merger Events: Notwithstanding Section 12.1(b) of the Equity Definitions, which shall not apply with respect to the Transaction, a “Merger Event” means the occurrence of any event or condition provisions set forth in the definition of under “Merger EventSettlement Amount” in Section 13.07(a) of the Indenture. Tender Offers: Not Applicable Consequence of Merger Events: Notwithstanding Section 12.2 of the Equity Definitions, upon the occurrence of a Merger Event, the Calculation Agent shall make a corresponding adjustment above in respect of any adjustment under the Indenture to the nature of the Shares to the extent an analogous adjustment would be made pursuant to the Indenture in connection with such Merger Event; provided, however, that no adjustment shall be made in respect of any adjustment to the Conversion Rate pursuant to any Excluded Provision; provided further that if, with respect to a Merger Event, (i) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is not a corporation or is not organized under the laws of the United States, any State thereof or the District of Columbia or (ii) the Counterparty to the Transaction following such Merger Event will not be either (A) the Issuer or (B) a wholly-owned subsidiary of the Issuer whose obligations under the Transaction are fully and unconditionally guaranteed by the Issuer, then Dealer, in its sole discretion, may elect for Cancellation and Payment (Calculation Agent Determination) to apply. Nationalization, Insolvency or Delisting: Cancellation and Payment (Calculation Agent Determination); provided that, in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it will also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed or re-quoted on any of The New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors), such exchange or quotation system shall thereafter be deemed to be the Exchange. Restrictions on Adjustments: Notwithstanding anything to the contrary in the Equity Definitions or this Confirmation, none of the events listed in Section 13.04(j) of the Indenture will constitute a Potential Adjustment Event or a Merger Event, and no adjustment will be made to the Transaction in connection with any such event pursuant to the Equity Definitions (as amended by this Confirmation) or otherwise. Additional Disruption Events: Change in Law: Applicable; provided that (i) 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),” and (ii) Section 12.9(a)(ii)(X) of the Equity Definitions is hereby amended by replacing the word “Shares” with the phrase “Hedge Positions”. Failure to Deliver: Not Applicable Hedging Disruption: Applicable; provided that:.

Potential Adjustment Events. Notwithstanding Section 11.2(e) of the Equity Definitions, a “Potential Adjustment Event” means an occurrence of any event or condition, as set forth in any Dilution Adjustment Provision, that would result in an adjustment to the “Conversion Rate” or to any “Last Reported Sale Price,” “Daily VWAP,” “Daily Conversion Value” or “Daily Settlement Amount” Rate (each as defined in the Indenture) of the Convertible Notes. Method of Adjustment: Calculation Agent Adjustment, which means that, notwithstanding Section 11.2(c) of the Equity Definitions, upon any Potential Adjustment Event, the Calculation Agent shall make a corresponding adjustment to any one or more of the Strike Price, the Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction to the extent an analogous adjustment would be is made pursuant to under the Indenture in connection with such Potential Adjustment Event; provided that, notwithstanding the foregoing, if the Calculation Agent in good faith disagrees with any adjustment to the Convertible Notes that involves an exercise of discretion by Counterparty or its board of directors (including, without limitation, pursuant to Section 13.05 of the Indenture or in connection with any proportional adjustment or the determination of the fair value of any securities, property, rights or other assets), then in each such case, the Calculation Agent will determine the adjustment to be made to any one or more of the Strike Price, the Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction in a commercially reasonable manner by making such adjustment by exercising its discretion on such matters in lieu of the exercise of discretion made by Counterparty or its board of directors, as the case may beIndenture. Dilution Adjustment Provisions: Sections 13.04(aXxxxxxx 00.00(x), 13.04(b(x), 13.04(c(x), 13.04(d(x), 13.04(e(x), (x), (x), (x) and 13.05 Section 10.05(l) of the Indenture. Extraordinary Events applicable to the Transaction: Merger Events: Notwithstanding Applicable; provided that notwithstanding Section 12.1(b) of the Equity Definitions, which shall not apply with respect to the Transaction, a “Merger Event” means the occurrence of any event or condition set forth in the definition of “Merger Event” in Section 13.07(a) 10.08 of the Indenture. Tender Offers: Not Applicable Applicable; provided that notwithstanding Section 12.1(d) of the Equity Definitions, a “Tender Offer” means the occurrence of any event or condition set forth in clause (a) of the definition of “Change in Control” contained in Section 1.01 of the Indenture. Consequence of Merger EventsEvents / Tender Offers: Notwithstanding Section 12.2 and Section 12.3 of the Equity Definitions, upon the occurrence of a Merger EventEvent or a Tender Offer, the Calculation Agent shall make a corresponding adjustment in respect of any adjustment under the Indenture to any one or more of the nature of the Shares (in the case of a Merger Event), Strike Price, Number of Options, Option Entitlement and any other variable relevant to the extent an analogous adjustment would be made pursuant to exercise, settlement or payment for the Indenture in connection with such Merger EventTransaction; provided, however, that no such adjustment shall be made in respect of without regard to any adjustment to the Conversion Rate pursuant to any Excluded Provision; provided further that if, with respect to a Merger EventEvent or a Tender Offer, (i) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is not a corporation or is not organized under the laws of the United States, any State thereof or the District of Columbia or (ii) the Counterparty to the Transaction following such Merger Event or Tender Offer, will not be either (A) the Issuer following such Merger Event or (B) a wholly-owned subsidiary of the Issuer whose obligations under the Transaction are fully and unconditionally guaranteed by the IssuerTender Offer, then Dealer, in its sole discretion, may elect for Cancellation and Payment (Calculation Agent Determination) to shall apply. Nationalization, Insolvency or Delisting: Cancellation and Payment (Calculation Agent Determination); provided thatthat if the Shares are immediately re-listed, re-traded or re-quoted on an exchange or quotation system in addition to accordance with the provisions of Section 12.6(a)(iii) of the Equity Definitions, it will also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed or re-quoted on any of The New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors), such exchange or quotation system shall thereafter be deemed to be the Exchange. Restrictions on Adjustments: Notwithstanding anything to the contrary in the Equity Definitions or this Confirmation, none of the events listed in Section 13.04(j) of the Indenture will constitute a Potential Adjustment Event or a Merger Event, and no adjustment will be made to the Transaction in connection with any such event pursuant to the Equity Definitions (as amended by this Confirmation) or otherwise. Additional Disruption Events: Change in Law: Applicable; provided that (i) 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),” and (ii) Section 12.9(a)(ii)(X) of the Equity Definitions is hereby amended by replacing the word “Shares” with the phrase “Hedge Positions”. .” Failure to Deliver: Not Applicable Applicable. Hedging Disruption: Not Applicable; provided that:. Increased Cost of Hedging: Not Applicable. Loss of Stock Borrow: Not Applicable. Increased Cost of Stock Borrow: Not Applicable. Hedging Party: For all applicable Additional Disruption Events, Dealer.

Potential Adjustment Events. Notwithstanding Section 11.2(e) of the Equity Definitions, except for purposes of “Adjustment to Cap Price” below, a “Potential Adjustment Event” means an any occurrence of any event or condition, as set forth in any Dilution Adjustment ProvisionSections 4.04(a), (b), (c), (d), (e), (f) or 4.05(a) of the Indenture, that would result in an adjustment under the Indenture to the “Conversion Rate” or to any “Last Reported Sale Price,” “Daily VWAP,” “Daily Conversion Value” or “Daily Settlement Amount” (each as defined in the Indenture) other term of the Convertible Notes; provided that in no event shall there be any adjustment hereunder as a result of a Fundamental Change Adjustment or a Discretionary Adjustment. For the avoidance of doubt, Dealer shall not have any delivery obligation hereunder in respect of any “Distributed Property” delivered by Counterparty pursuant to the fourth sentence of the second paragraph of Section 4.04(c) of the Indenture or any payment obligation in respect of any cash paid by Counterparty pursuant to the third paragraph of Section 4.04(d) of the Indenture (collectively, the “Conversion Rate Adjustment Fallback Provisions”), and no adjustment shall be made to the terms of the Transaction on account of any event or condition described in the Conversion Rate Adjustment Fallback Provisions. Method of Adjustment: Calculation Agent Adjustment; provided, which means thathowever, that the Equity Definitions shall be amended (a) by replacing the words “diluting or concentrative” in Section 11.2(e)(vii) with the words “material economic”, (b) by adding the words “or the Transaction” after the words “theoretical value of the relevant Shares” in Section 11.2(e)(vii) and (c) replacing the word “event” in Section 11.2(e)(vii) with the words “corporate action by the Issuer”. Therefore, notwithstanding Section 11.2(c) of the Equity Definitions, upon any Potential Adjustment EventEvent (excluding, for the avoidance of doubt, any Fundamental Change Adjustment or Discretionary Adjustment and without limitation of “Adjustment to Cap Price” below), the Calculation Agent shall make a corresponding adjustment to any one or more of the Strike Price, the Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction to the extent an analogous adjustment would be made pursuant to under the Indenture in connection with such Potential Adjustment Event; provided that, notwithstanding the foregoing, if the Calculation Agent in good faith disagrees with any adjustment to the Convertible Notes that involves an exercise of discretion by Counterparty or its board of directors (including, without limitation, pursuant to Section 13.05 of the Indenture or in connection with any proportional adjustment or the determination of the fair value of any securities, property, rights or other assets), then in each such case, the Calculation Agent will determine the adjustment to be made to any one or more of the Strike Price, Number of Capped Note Hedging Units, the Option Entitlement Capped Note Hedging Unit Entitlement, the composition of the Shares and any other variable relevant to the exercise, settlement settlement, payment or payment for other terms of the Transaction in a commercially reasonable manner by making such adjustment by exercising its discretion on such matters in lieu of the exercise of discretion made by Counterparty or its board of directors, as the case may be. Dilution Adjustment Provisions: Sections 13.04(a), 13.04(b), 13.04(c), 13.04(d), 13.04(e) and 13.05 of the Indenture. Extraordinary Events applicable (subject to the Transaction: Merger Events: Notwithstanding Section 12.1(b) of the Equity Definitions, which shall not apply with respect to the Transaction, a “Merger Event” means the occurrence of any event or condition provisions set forth in the definition of under “Merger EventSettlement Amount” in Section 13.07(a) of the Indenture. Tender Offers: Not Applicable Consequence of Merger Events: Notwithstanding Section 12.2 of the Equity Definitions, upon the occurrence of a Merger Event, the Calculation Agent shall make a corresponding adjustment above in respect of any adjustment under the Indenture to the nature of the Shares to the extent an analogous adjustment would be made pursuant to the Indenture in connection with such Merger Event; provided, however, that no adjustment shall be made in respect of any adjustment to the Conversion Rate pursuant to any Excluded Provision; provided further that if, with respect to a Merger Event, (i) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is not a corporation or is not organized under the laws of the United States, any State thereof or the District of Columbia or (ii) the Counterparty to the Transaction following such Merger Event will not be either (A) the Issuer or (B) a wholly-owned subsidiary of the Issuer whose obligations under the Transaction are fully and unconditionally guaranteed by the Issuer, then Dealer, in its sole discretion, may elect for Cancellation and Payment (Calculation Agent Determination) to apply. Nationalization, Insolvency or Delisting: Cancellation and Payment (Calculation Agent Determination); provided that, in addition to the provisions case of any adjustment in respect of an event or condition set forth in Section 12.6(a)(iii4.04(f) or 4.05(a) of the Equity DefinitionsIndenture, it will also constitute a Delisting if the Exchange is located Calculation Agent may limit or alter any such adjustment referenced in this sentence so that the United States and the Shares are not immediately re-listed or re-quoted on any of The New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed or re-quoted on any fair value of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors), Transaction to Dealer is not reduced as a result of such exchange or quotation system shall thereafter be deemed to be the Exchange. Restrictions on Adjustments: Notwithstanding anything to the contrary in the Equity Definitions or this Confirmation, none of the events listed in Section 13.04(j) of the Indenture will constitute a Potential Adjustment Event or a Merger Event, and no adjustment will be made to the Transaction in connection with any such event pursuant to the Equity Definitions (as amended by this Confirmation) or otherwise. Additional Disruption Events: Change in Law: Applicable; provided that (i) 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),” and (ii) Section 12.9(a)(ii)(X) of the Equity Definitions is hereby amended by replacing the word “Shares” with the phrase “Hedge Positions”. Failure to Deliver: Not Applicable Hedging Disruption: Applicable; provided that:adjustment.

Potential Adjustment Events. Notwithstanding Section 11.2(e) of the Equity Definitions, a “Potential Adjustment Event” means an occurrence of any event or condition, as set forth in any Dilution Adjustment Provision, Section 12.02 of the Indenture that would result in an adjustment to the “Conversion Rate” or Exchange Rate of the Exchangeable Notes; provided that in no event shall there be any adjustment hereunder as a result of an adjustment to any “Last Reported Sale Price,” “Daily VWAP,” “Daily Conversion Value” or “Daily Settlement Amount” (each as defined in the Exchange Rate pursuant to Section 12.03 of the Indenture) of the Convertible Notes. Method of Adjustment: Calculation Agent Adjustment, which means that, notwithstanding Section 11.2(c) of the Equity Definitions, upon any Potential Adjustment Event, the Calculation Agent shall make a corresponding adjustment to any one or more of the Strike Price, the Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction except to the extent an analogous adjustment would be made pursuant to the Indenture in connection with such Potential Adjustment Event; provided that, notwithstanding the foregoing, if the Calculation Agent in good faith disagrees with any adjustment to the Convertible Notes that involves an exercise of discretion by Counterparty or its board of directors (including, without limitation, pursuant to Section 13.05 of the Indenture or in connection with any proportional adjustment or the determination of the fair value of any securities, property, rights or other assets), then in each such case, the Calculation Agent will determine the adjustment to be made to any one or more of the Strike Price, the Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction in a commercially reasonable manner by making such adjustment by exercising its discretion on such matters in lieu of the exercise of discretion made by Counterparty or its board of directors, as the case may beunder “Delivery Obligation” above. Dilution Adjustment Provisions: Sections 13.04(a), 13.04(b), 13.04(c), 13.04(d), 13.04(e) and 13.05 of the Indenture. 8 Extraordinary Events applicable to the Transaction: Merger Events: Notwithstanding Section 12.1(b) of the Equity Definitions, which shall not apply with respect to the Transaction, a “Merger Event” means the occurrence of any event or condition set forth in the definition of “Merger Event” in Section 13.07(a) 12.05 of the Indenture. Tender Offers: Not Applicable Consequence Notwithstanding Section 12.1(d) of the Equity Definitions, a “Tender Offer” means the occurrence of any event or condition set forth in Section 12.02(e) of the Indenture and, upon the occurrence of such an event, adjustments set forth under “Method of Adjustment” above shall apply. Consequences of Merger Events: Notwithstanding Section 12.2 of the Equity Definitions, upon the occurrence of a Merger Event, the Calculation Agent shall make a corresponding adjustment in respect of any adjustment under the Indenture to any one or more of the nature of the Shares Shares, Number of Options, the Option Entitlement and any other variable relevant to the extent an analogous adjustment would be made pursuant to exercise, settlement or payment for the Indenture in connection with Transaction; provided however that such Merger Event; provided, however, that no adjustment shall be made in respect of without regard to any adjustment to the Conversion Exchange Rate pursuant for the issuance of additional shares as set forth in Section 12.03 of the Indenture, except to any Excluded Provision; the extent provided further under “Delivery Obligation” above. Notwithstanding the foregoing, upon the occurrence of a Merger Event that ifconstitutes a “Public Acquirer Change in Control”, as defined in the Indenture, with respect to which Counterparty elects to adjust the terms of the Exchangeable Notes in accordance with Section 12.04 of the Indenture (such a Merger Public Acquirer Change in Control, a “PACC Event”), subject to compliance with the proviso to this sentence, the Calculation Agent will adjust any one or more of the nature of the Shares, the Number of Options, the Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction to the extent required to preserve the fair value of the Transaction to Dealer (such adjustments, the “PACC Adjustments”); provided that, as a condition precedent to the adjustments contemplated above, Counterparty and, if Counterparty is not the issuer of the “Public Acquirer Common Stock”, as defined in the Indenture, the issuer of the Public Acquirer Common Stock, shall, prior to the effective date of such PACC Event, (i) the consideration for the Shares includes (orhave entered into such documentation containing representations, at the option of a holder of Shares, may include) shares of an entity or person warranties and agreements relating to securities laws and other issues as requested by Dealer 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 (ii) the Counterparty to the Transaction following such Merger Event will not be either (A) the Issuer or (B) a wholly-owned subsidiary of the Issuer whose obligations under the Transaction are fully and unconditionally guaranteed by the Issuer, then DealerDealer determined, in its sole reasonable discretion, may elect for Cancellation to be reasonably necessary or appropriate to allow Dealer to continue as a party to the Transaction, as adjusted, and Payment (Calculation Agent Determination) to applypreserve its hedge unwind, hedge leg in and other hedging activities in connection with the Transaction in a manner compliant with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to Dealer. Nationalization, Insolvency or Delisting: Cancellation and Payment (Calculation Agent Determination); provided that Counterparty may elect settlement of the related obligation in accordance with Section 9(k) below; provided, further that, in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it will also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed listed, re-traded or re-quoted within 30 Exchange Business Days following such Delisting on any of The New York Stock Exchange, The NASDAQ Global Select Market a U.S. national or The NASDAQ Global Market (regional securities exchange or their respective successors)an established automated over-the-counter trading market in the U.S.; if the Shares are immediately re-listed listed, re-traded or re-quoted within 30 Scheduled Trading Days following such Delisting on any of U.S. national or regional securities exchange or an established automated over-the-counter trading market in the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors)U.S., such exchange or quotation system shall thereafter be deemed to be the Exchange. Restrictions on Adjustments: Notwithstanding anything to the contrary in the Equity Definitions or this Confirmation, none of the events listed in Section 13.04(j) of the Indenture will constitute a Potential Adjustment Event or a Merger Event, and no adjustment will be made to the Transaction in connection with any such event pursuant to the Equity Definitions (as amended by this Confirmation) or otherwise. Additional Disruption Events: Change in Law: Applicable; provided that (i) 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),” and (ii) Section 12.9(a)(ii)(X) of the Equity Definitions is hereby amended by replacing the word “Shares” with the phrase “Hedge Positions”. Applicable Failure to Deliver: Not Applicable Insolvency Filing: Applicable Hedging Disruption: Not Applicable Determining Party: For all applicable Additional Disruption Events, Dealer. Non-Reliance: Applicable Agreements and Acknowledgements Regarding Hedging Activities: Applicable Additional Acknowledgments: Applicable; provided that:

Potential Adjustment Events. Notwithstanding Section 11.2(e) of the Equity Definitions, a “Potential Adjustment Event” means an occurrence of any event or condition, as set forth in any Dilution Adjustment Provision, Section 12.02 of the Indenture that would result in an adjustment to the “Conversion Rate” or to any “Last Reported Sale Price,” “Daily VWAP,” “Daily Conversion Value” or “Daily Settlement Amount” (each as defined in the Indenture) Rate of the Convertible Notes. Method ; provided that in no event shall there be any adjustment hereunder as a result of Adjustment: Calculation Agent Adjustment, which means that, notwithstanding an adjustment to the Conversion Rate pursuant to Section 11.2(c) 12.03 of the Equity DefinitionsIndenture, upon any Potential Adjustment Event, the Calculation Agent shall make a corresponding adjustment to any one or more of the Strike Price, the Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction except to the extent an analogous adjustment would be made pursuant to the Indenture in connection with such Potential Adjustment Event; provided that, notwithstanding the foregoing, if the Calculation Agent in good faith disagrees with any adjustment to the Convertible Notes that involves an exercise of discretion by Counterparty or its board of directors (including, without limitation, pursuant to Section 13.05 of the Indenture or in connection with any proportional adjustment or the determination of the fair value of any securities, property, rights or other assets), then in each such case, the Calculation Agent will determine the adjustment to be made to any one or more of the Strike Price, the Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction in a commercially reasonable manner by making such adjustment by exercising its discretion on such matters in lieu of the exercise of discretion made by Counterparty or its board of directors, as the case may be. Dilution Adjustment Provisions: Sections 13.04(a), 13.04(b), 13.04(c), 13.04(d), 13.04(e) and 13.05 of the Indentureunder “Delivery Obligation” above. Extraordinary Events applicable to the Transaction: Merger Events: Notwithstanding Section 12.1(b) of the Equity Definitions, which shall not apply with respect to the Transaction, a “Merger Event” means the occurrence of any event or condition set forth in the definition of “Merger Event” in Section 13.07(a) 12.05 of the Indenture. Tender Offers: Not Applicable Consequence Notwithstanding Section 12.1(d) of the Equity Definitions, a “Tender Offer” means the occurrence of any event or condition set forth in Section 12.02(e) of the Indenture and, upon the occurrence of such an event, adjustments set forth under “Method of Adjustment” above shall apply. Consequences of Merger Events: Notwithstanding Section 12.2 of the Equity Definitions, upon the occurrence of a Merger Event, the Calculation Agent shall make a corresponding adjustment in respect of any adjustment under the Indenture to any one or more of the nature of the Shares Shares, Number of Options, the Option Entitlement and any other variable relevant to the extent an analogous adjustment would be made pursuant to exercise, settlement or payment for the Indenture in connection with Transaction; provided however that such Merger Event; provided, however, that no adjustment shall be made in respect of without regard to any adjustment to the Conversion Rate pursuant for the issuance of additional shares as set forth in Section 12.03 of the Indenture, except to any Excluded Provision; the extent provided further under “Delivery Obligation” above. Notwithstanding the foregoing, upon the occurrence of a Merger Event that ifconstitutes a “Public Acquirer Change in Control”, as defined in the Indenture, with respect to which Counterparty elects to adjust the terms of the Convertible Notes in accordance with Section 12.04 of the Indenture (such a Merger Public Acquirer Change in Control, a “PACC Event”), subject to compliance with the proviso to this sentence, the Calculation Agent will adjust any one or more of the nature of the Shares, the Number of Options, the Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction to the extent required to preserve the fair value of the Transaction to Dealer (such adjustments, the “PACC Adjustments”); provided that, as a condition precedent to the adjustments contemplated above, Counterparty and, if Counterparty is not the issuer of the “Public Acquirer Common Stock”, as defined in the Indenture, the issuer of the Public Acquirer Common Stock, shall, prior to the effective date of such PACC Event, (i) the consideration for the Shares includes (orhave entered into such documentation containing representations, at the option of a holder of Shares, may include) shares of an entity or person warranties and agreements relating to securities laws and other issues as requested by Dealer 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 (ii) the Counterparty to the Transaction following such Merger Event will not be either (A) the Issuer or (B) a wholly-owned subsidiary of the Issuer whose obligations under the Transaction are fully and unconditionally guaranteed by the Issuer, then DealerDealer determined, in its sole reasonable discretion, may elect for Cancellation to be reasonably necessary or appropriate to allow Dealer to continue as a party to the Transaction, as adjusted, and Payment (Calculation Agent Determination) to applypreserve its hedge unwind, hedge leg in and other hedging activities in connection with the Transaction in a manner compliant with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to Dealer. Nationalization, Insolvency or Delisting: Cancellation and Payment (Calculation Agent Determination); provided that Counterparty may elect settlement of the related obligation in accordance with Section 9(k) below; provided, further that, in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it will also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed listed, re-traded or re-quoted within 30 Exchange Business Days following such Delisting on any of The New York Stock Exchange, The NASDAQ Global Select Market a U.S. national or The NASDAQ Global Market (regional securities exchange or their respective successors)an established automated over-the-counter trading market in the U.S.; if the Shares are immediately re-listed listed, re-traded or re-quoted within 30 Scheduled Trading Days following such Delisting on any of U.S. national or regional securities exchange or an established automated over-the-counter trading market in the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors)U.S., such exchange or quotation system shall thereafter be deemed to be the Exchange. Restrictions on Adjustments: Notwithstanding anything to the contrary in the Equity Definitions or this Confirmation, none of the events listed in Section 13.04(j) of the Indenture will constitute a Potential Adjustment Event or a Merger Event, and no adjustment will be made to the Transaction in connection with any such event pursuant to the Equity Definitions (as amended by this Confirmation) or otherwise. Additional Disruption Events: Change in Law: Applicable; provided that (i) 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),” and (ii) Section 12.9(a)(ii)(X) of the Equity Definitions is hereby amended by replacing the word “Shares” with the phrase “Hedge Positions”. Applicable Failure to Deliver: Not Applicable Insolvency Filing: Applicable Hedging Disruption: Not Applicable Determining Party: For all applicable Additional Disruption Events, Dealer. Non-Reliance: Applicable Agreements and Acknowledgements Regarding Hedging Activities: Applicable Additional Acknowledgments: Applicable; provided that:

Potential Adjustment Events. Notwithstanding Section 11.2(e) of the Equity Definitions, except for purposes of “Adjustment to Cap Price” below, a “Potential Adjustment Event” means an any occurrence of any event or condition, as set forth in any Dilution Adjustment ProvisionSections 4.04(a), (b), (c), (d), (e), (f) or 4.05(a) of the Indenture, that would result in an adjustment under the Indenture to the “Conversion Rate” or to any “Last Reported Sale Price,” “Daily VWAP,” “Daily Conversion Value” or “Daily Settlement Amount” (each as defined in the Indenture) other term of the Convertible Notes; provided that in no event shall there be any adjustment hereunder as a result of a Fundamental Change Adjustment or a Discretionary Adjustment. For the avoidance of doubt, Dealer shall not have any delivery obligation hereunder in respect of any “Distributed Property” delivered by Counterparty pursuant to the fourth sentence of the second paragraph of Section 4.04(c) of the Indenture or any payment obligation in respect of any cash paid by Counterparty pursuant to the third paragraph of Section 4.04(d) of the Indenture (collectively, the “Conversion Rate Adjustment Fallback Provisions”), and no adjustment shall be made to the terms of the Transaction on account of any event or condition described in the Conversion Rate Adjustment Fallback Provisions. Method of Adjustment: Calculation Agent Adjustment; provided, which means thathowever, that the Equity Definitions shall be amended (a) by replacing the words “diluting or concentrative” in Section 11.2(e)(vii) with the words “material economic”, (b) by adding the words “or the Transaction” after the words “theoretical value of the relevant Shares” in Section 11.2(e)(vii) and (c) replacing the word “event” in Section 11.2(e)(vii) with the words “corporate action by the Issuer”. Therefore, notwithstanding Section 11.2(c) of the Equity Definitions, upon any Potential Adjustment EventEvent (excluding, for the avoidance of doubt, any Fundamental Change Adjustment or Discretionary Adjustment and without limitation of “Adjustment to Cap Price” below), the Calculation Agent shall make a corresponding adjustment to any one or more of the Strike Price, the Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction to the extent an analogous adjustment would be made pursuant to under the Indenture in connection with such Potential Adjustment Event; provided that, notwithstanding the foregoing, if the Calculation Agent in good faith disagrees with any adjustment to the Convertible Notes that involves an exercise of discretion by Counterparty or its board of directors (including, without limitation, pursuant to Section 13.05 of the Indenture or in connection with any proportional adjustment or the determination of the fair value of any securities, property, rights or other assets), then in each such case, the Calculation Agent will determine the adjustment to be made to any one or more of the Strike Price, Number of Capped Note Hedging Units, the Option Entitlement Capped Note Hedging Unit Entitlement, the composition of the Shares and any other variable relevant to the exercise, settlement settlement, payment or payment for other terms of the Transaction in a commercially reasonable manner by making such adjustment by exercising its discretion on such matters in lieu of the exercise of discretion made by Counterparty or its board of directors, as the case may be. Dilution Adjustment Provisions: Sections 13.04(a), 13.04(b), 13.04(c), 13.04(d), 13.04(e) and 13.05 of the Indenture. Extraordinary Events applicable (subject to the Transaction: Merger Events: Notwithstanding Section 12.1(b) of the Equity Definitions, which shall not apply with respect to the Transaction, a “Merger Event” means the occurrence of any event or condition provisions set forth in the definition of under “Merger EventSettlement Amount” in Section 13.07(a) of the Indenture. Tender Offers: Not Applicable Consequence of Merger Events: Notwithstanding Section 12.2 of the Equity Definitions, upon the occurrence of a Merger Event, the Calculation Agent shall make a corresponding adjustment above in respect of any adjustment under the Indenture to the nature of the Shares to the extent an analogous adjustment would be made pursuant to the Indenture in connection with such Merger Event; provided, however, that no adjustment shall be made in respect of any adjustment to the Conversion Rate pursuant to any Excluded Provision; provided further that if, with respect to a Merger Event, (i) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is not a corporation or is not organized under the laws of the United States, any State thereof or the District of Columbia or (ii) the Counterparty to the Transaction following such Merger Event will not be either (A) the Issuer or (B) a wholly-owned subsidiary of the Issuer whose obligations under the Transaction are fully and unconditionally guaranteed by the Issuer, then Dealer, in its sole discretion, may elect for Cancellation and Payment (Calculation Agent Determination) to apply. Nationalization, Insolvency or Delisting: Cancellation and Payment (Calculation Agent Determination); provided that, in addition to the provisions case of any adjustment in respect of an event or condition set forth in Section 12.6(a)(iii4.04(f) or 4.05(a) of the Equity DefinitionsIndenture, it will also constitute a Delisting if the Exchange is located Calculation Agent may limit or alter any such adjustment referenced in this sentence so that the United States and the Shares are not immediately re-listed or re-quoted on any of The New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed or re-quoted on any fair value of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors), Transaction to Dealer is not reduced as a result of such exchange or quotation system shall thereafter be deemed to be the Exchangeadjustment. Restrictions on Adjustments: Notwithstanding anything to the contrary in the Equity Definitions or this Confirmation, none of the events listed in Section 13.04(j) of the Indenture will constitute a Potential Adjustment Event or a Merger Event, and no adjustment will be made to the Transaction in connection with any such event pursuant to the Equity Definitions (as amended by this Confirmation) or otherwise. Additional Disruption Extraordinary Events: Change in Law: Applicable; provided that (i) 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),” and (ii) Section 12.9(a)(ii)(X) of the Equity Definitions is hereby amended by replacing the word “Shares” with the phrase “Hedge Positions”. Failure to Deliver: Not Applicable Hedging Disruption: Applicable; provided that:

Potential Adjustment Events. Notwithstanding Section 11.2(e) of the Equity Definitions, a “Potential Adjustment Event” means an any occurrence of any event or condition, as set forth in any Dilution Adjustment ProvisionSections 14.04(a), (b), (c), (d) or (e), or 14.05 of the Indenture, that would result in an adjustment under the Indenture to the “Conversion Rate” or to any “Last Reported Sale Price,” “Daily VWAP,” “Daily Conversion Value” or “Daily Settlement Amount” (each as defined in the Indenture) other term of the Convertible Notes; provided that in no event shall there be any adjustment hereunder as a result of a Fundamental Change Adjustment or a Discretionary Adjustment. For the avoidance of doubt, Dealer shall not have any delivery or payment obligation hereunder , and no adjustment shall be made to the terms of the Transaction, on account of (i) any distribution of cash, property or securities by Counterparty to holders of the Convertible Notes (upon conversion or otherwise) or (ii) any other transaction in which holders of the Convertible Notes are entitled to participate, in each case, in lieu of an adjustment under the Indenture of the type referred to in the immediately preceding sentence (including, without limitation, pursuant to the fourth sentence of Section 14.04(c) of the Indenture or the fourth sentence of Section 14.04(d) of the Indenture). Method of Adjustment: Calculation Agent Adjustment, which means that, notwithstanding Section 11.2(c) of the Equity Definitions, upon any Potential Adjustment EventEvent (excluding, the Calculation Agent shall make a corresponding adjustment to any one or more of the Strike Price, the Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction to the extent an analogous adjustment would be made pursuant to the Indenture in connection with such Potential avoidance of doubt, any Fundamental Change Adjustment Event; provided that, notwithstanding the foregoing, if the Calculation Agent in good faith disagrees with any adjustment to the Convertible Notes that involves an exercise of discretion by Counterparty or its board of directors (including, without limitation, pursuant to Section 13.05 of the Indenture or in connection with any proportional adjustment or the determination of the fair value of any securities, property, rights or other assetsDiscretionary Adjustment), then in each such case, the Calculation Agent will determine the adjustment to be made to any one or more of the Strike Price, the Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction in a commercially reasonable manner by making such adjustment by exercising its discretion on such matters in lieu of the exercise of discretion made by Counterparty or its board of directors, as the case may be. Dilution Adjustment Provisions: Sections 13.04(a), 13.04(b), 13.04(c), 13.04(d), 13.04(e) and 13.05 of the Indenture. Extraordinary Events applicable to the Transaction: Merger Events: Notwithstanding Section 12.1(b) of the Equity Definitions, which shall not apply with respect to the Transaction, a “Merger Event” means the occurrence of any event or condition set forth in the definition of “Merger Event” in Section 13.07(a) of the Indenture. Tender Offers: Not Applicable Consequence of Merger Events: Notwithstanding Section 12.2 of the Equity Definitions, upon the occurrence of a Merger Event, the Calculation Agent shall make a corresponding adjustment in respect of any adjustment under the Indenture to any one or more of the nature Strike Price, the Note Hedging Unit Entitlement, the composition of the Shares and any other variable relevant to the extent an analogous adjustment would be made pursuant exercise, settlement, payment or other terms of the Transaction (other than the Number of Note Hedging Units) (subject to the Indenture in connection with such Merger Event; provided, however, that no adjustment shall be made provisions set forth under “Settlement Amount” above in respect of any adjustment to the Conversion Rate pursuant to any Excluded Provision; provided further that if, with respect to a Merger Event, (i) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is not a corporation or is not organized under the laws of the United States, any State thereof or the District of Columbia or (ii) the Counterparty to the Transaction following such Merger Event will not be either (A) the Issuer or (B) a wholly-owned subsidiary of the Issuer whose obligations under the Transaction are fully and unconditionally guaranteed by the Issuer, then Dealer, in its sole discretion, may elect for Cancellation and Payment (Calculation Agent Determination) to apply. Nationalization, Insolvency or Delisting: Cancellation and Payment (Calculation Agent Determination); provided that, notwithstanding the foregoing, if any Potential Adjustment Event occurs during an Observation Period or Extended Observation Period but no adjustment was made to any Convertible Note under the Indenture because the relevant “Holder” (as such term is defined in addition the Indenture) was deemed to be a record owner of the underlying Shares on the related “Conversion Date,” then the Calculation Agent acting in good faith and in a commercially reasonable manner shall make an adjustment, as determined by it, to the terms hereof in order to account for such Potential Adjustment Event. In addition, if any Potential Adjustment Event, or the effective date, “Expiration Date” or “Ex-Dividend Date” for such an event, occurs during an Extended Observation Period, the Calculation Agent may make such further adjustments as it determines appropriate to the Settlement Amount for the relevant Note Hedging Units (subject to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it will also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed or re-quoted on any of The New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors), such exchange or quotation system shall thereafter be deemed to be the Exchange. Restrictions on Adjustments: Notwithstanding anything above relating to the contrary in the Equity Definitions or this Confirmation, none of the events listed in Section 13.04(j) of the Indenture will constitute a Potential Adjustment Event or a Merger Event, and no adjustment will be made to the Transaction in connection with any such event pursuant to the Equity Definitions (as amended by this Confirmation) or otherwise. Additional Disruption Events: Change in Law: Applicable; provided that (i) 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 statuteApplicable Limit),” and (ii) Section 12.9(a)(ii)(X) of the Equity Definitions is hereby amended by replacing the word “Shares” with the phrase “Hedge Positions”. Failure to Deliver: Not Applicable Hedging Disruption: Applicable; provided that:.