Common use of Merger Events Clause in Contracts

Merger Events. Notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means the occurrence of any event or condition set forth in Section 5.08(A) of the Indenture. Consequences of Merger Events: Notwithstanding Sections 12.2 and 12.3 of the Equity Definitions, upon the occurrence of a Merger Event that the Calculation Agent determines by reference to Section 5.08(A) of the Indenture would result in an adjustment under the Indenture, the Calculation Agent shall make a corresponding adjustment in a commercially reasonable manner to the terms relevant to the exercise, settlement, payment or other terms of the Transaction, subject to “Discretionary Adjustments” above; provided that such adjustment shall be made without regard to (i) any adjustment to the Conversion Rate pursuant to Section 5.06 or 5.07 of the Indenture and (ii) the election, if any, by Counterparty to adjust the Conversion Rate (in the case of this clause (ii), other than, for the avoidance of doubt, any adjustment pursuant to the Indenture in respect of an Adjustment Event in respect of which a corresponding adjustment is made in respect of the Transaction under “Method of Adjustment” above); and provided further that the Calculation Agent may limit or alter any such adjustment referenced in this paragraph so that the fair value of the Transaction to Dealer (taking into account a commercially reasonable hedge position) is not adversely affected as a result of such adjustment; and 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 (or depositary receipts evidencing interests in shares) of an entity or person that is not a corporation organized under the laws of the United States, any State thereof or the District of Columbia or (ii) Counterparty following such Merger Event will not be a corporation organized under the laws of the United States, any State thereof or the District of Columbia or will not be the Issuer following such Merger Event, Dealer may elect in its sole discretion that Cancellation and Payment (Calculation Agent Determination) shall apply.

Merger Events. Notwithstanding Applicable; provided that notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means the occurrence of any event or condition set forth in the definition of “Share Exchange Event” in Section 5.08(A14.07 of the Indenture. Tender Offers: 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. Consequences of Merger EventsEvents/ Tender Offers: Notwithstanding Sections Section 12.2 and Section 12.3 of the Equity Definitions, upon the occurrence of a Merger Event or a Tender Offer that is required under the Calculation Agent determines by reference to Section 5.08(A) terms of the Indenture would to result in an adjustment under to the Indentureterms of the Convertible Notes, the Calculation Agent shall make (A) a corresponding adjustment to any one or more of the nature of the Shares, Strike Price, Number of Options and Option Entitlement, in a commercially reasonable manner each case, to the terms extent an analogous adjustment would be made pursuant to the Indenture in connection with such Merger Event or Tender Offer, or to the definitions of “Exchange”, “Relevant Price” and “Settlement Averaging Period” in this Confirmation and any other variable relevant to the exercise, settlement, settlement or payment or other terms of for the Transaction, subject to the second paragraph under “Discretionary AdjustmentsMethod of Adjustment” aboveand (B) a proportionate adjustment to the Cap Price to the extent any adjustment is made to the Strike Price pursuant to clause (A) above (which adjustment, for the avoidance of doubt, shall not prohibit the Calculation Agent from making any further adjustments to the Cap Price in accordance with, and subject in all respects to, Section 9(x)); provided that in no event shall the Cap Price be less than the Strike Price; provided further that any such adjustment shall be made without regard to (i) any adjustment to the “Conversion Rate Rate” (as defined in the Indenture) pursuant to Section 5.06 or 5.07 of any Excluded Provision. Notwithstanding the Indenture and (ii) the electionforegoing, if any, by Counterparty to adjust the Conversion Rate (in the case of this clause (ii), other than, for the avoidance of doubt, any adjustment pursuant to the Indenture in respect of an Adjustment Event in respect of which a corresponding adjustment is made in respect of the Transaction under “Method of Adjustment” above); and provided further that the Calculation Agent may limit or alter any such adjustment referenced in this paragraph so that the fair value of the Transaction to Dealer (taking into account a commercially reasonable hedge position) is not adversely affected as a result of such adjustment; and 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 (or depositary receipts evidencing interests in 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 a corporation or will not be either (A) the Issuer following such Merger Event or Tender Offer or (B) a wholly owned subsidiary of the Issuer (1) that is a corporation organized under the laws of the United States, any State thereof or the District of Columbia or Columbia, (2) whose obligations under the Transaction are fully and unconditionally guaranteed by the Issuer and (3) with respect to which the Calculation Agent determines that treating such wholly owned subsidiary as the Counterparty will not be have a material adverse effect on Dealer’s rights or obligations hereunder, Dealer’s hedging activities, or the Issuer following such Merger Eventcosts of engaging in any of the foregoing, Dealer may elect then, in its sole discretion that either case, Cancellation and Payment (Calculation Agent Determination) may apply at Dealer’s sole reasonable election; provided that Dealer shall applyconsult with Counterparty prior to declaring an Early Termination Date with respect to the Transaction unless Dealer reasonably determines, after using good faith efforts to consult with Counterparty on a non-binding basis (it being understood that Dealer may condition such consultation on Counterparty making the representation in Section 8(f) hereof in writing and Dealer shall not be obligated to consult with Counterparty if such consultation would have an adverse impact on Dealer under this Transaction), that it is impracticable or inappropriate to preserve the Transaction. For the avoidance of doubt, the foregoing provisions will apply regardless of whether any Merger Event or Tender Offer gives rise to an Early Conversion. Consequences of Announcement Events: Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions; provided that, in respect of an Announcement Event, (w) references to “Tender Offer” shall be replaced by references to “Announcement Event” and references to “Tender Offer Date” shall be replaced by references to “date of such Announcement Event”, (x) the phrase “exercise, settlement, payment or any other terms of the Transaction (including, without limitation, the spread)” shall be replaced with the phrase “Cap Price (provided that in no event shall the Cap Price be less than the Strike Price)”, (y) the words “whether within a commercially reasonable period of time (as determined by the Calculation Agent) prior to or after the Announcement Event” shall be inserted prior to the word “which” in the seventh line, and (z) for the avoidance of doubt, the Calculation Agent shall determine whether the relevant Announcement Event has had a material economic effect on the Transaction (and, if so, shall adjust the Cap Price accordingly to account for such economic effect) on one or more occasions on or after the date of such Announcement Event up to, and including, the Expiration Date, any Early Termination Date and/or any other date of cancellation, it being understood that any adjustment in respect of an Announcement Event shall take into account any earlier adjustment relating to the same Announcement Event and any adjustment in respect of an Announcement Event hereunder shall be without duplication in respect of any other adjustment or cancellation valuation made pursuant to the Equity Definitions or hereunder. An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, to which Article 12 of the Equity Definitions is applicable.

Merger Events. Notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means the occurrence of any event or condition set forth in to which Section 5.08(A) 5.10 of the IndentureNote Indenture applies. Consequences Notice of Merger EventsConsideration: Notwithstanding Sections 12.2 and 12.3 of the Equity Definitions, upon Upon the occurrence of a Merger Event that causes the Shares to be converted into or exchanged for more than a single type of consideration (determined based in part upon the form of election of the holders of the Shares), Counterparty shall promptly (but in no event later than the date on which such Merger Event is consummated) notify the Calculation Agent determines by reference to Section 5.08(A) in writing of the Indenture would result in an adjustment under the Indenturetypes and amounts of consideration that holders of Shares have affirmatively elected to receive upon consummation of such Merger Event, or if no holders of Shares affirmatively makes such election, the Calculation Agent shall make a corresponding adjustment types and amounts of consideration actually received by such holders. Consequences for Merger Events: Share-for-Share: The Transaction will be adjusted in a commercially reasonable manner to accordance with the terms relevant to Reference Notes as provided in the exercise, settlement, payment or other terms of the Transaction, subject to “Discretionary Adjustments” aboveNote Indenture; provided that such adjustment shall be made without regard to (i) any discretionary adjustment to the Conversion Rate by Counterparty pursuant to Section 5.06 or 5.07 5.06(a)(10) of the Indenture Indenture. Share-for-Other: The Transaction will be adjusted in accordance with the Reference Notes as provided in the Note Indenture; provided that such adjustment shall be made without regard to any discretionary adjustment to the Conversion Rate by Counterparty pursuant to Section 5.06(a)(10) of the Indenture. Share-for-Combined: The Transaction will be adjusted in accordance with the Reference Notes as provided in the Note Indenture; provided that such adjustment shall be made without regard to any discretionary adjustment to the Conversion Rate by Counterparty pursuant to Section 5.06(a)(10) of the Indenture. Tender Offer: Applicable, subject to “Consequences of Tender Offers” below. Notwithstanding Section 12.1(d) of the Equity Definitions, “Tender Offer” means the occurrence of any event or condition set forth in Section 5.06(a)(5) of the Note Indenture. Consequences of Tender Offers: The Transaction will be adjusted in accordance with the Reference Notes as provided in the Note Indenture; provided that such adjustment shall be made without regard to any discretionary adjustment to the Conversion Rate by Counterparty pursuant to Section 5.06(a)(10) of the Indenture. Nationalization, Insolvency and Delisting: Cancellation and Payment (Calculation Agent Determination), provided that Buyer shall have the right to elect in its sole discretion whether any Cancellation Amount shall be settled in cash or Shares in accordance with the provisions of this Confirmation under “Additional Agreements, Representations and Covenants of Buyer, Etc.” 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, re-traded or re-quoted on any of the New York Stock Exchange, the NASDAQ Global Market or the NASDAQ Global Select Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any such exchange or quotation system, such exchange or quotation system shall thereafter be deemed to be the Exchange. Additional Disruption Events: Change in Law: Applicable; provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the phrase “the interpretation” in the third line thereof with the phrase “, or public announcement of, the formal or informal interpretation” and (ii) by replacing the election, if any, by Counterparty to adjust the Conversion Rate (word “Shares” where it appears in the case of this clause (ii), other thanX) thereof with the words “Hedge Position”. The parties agree that, for the avoidance of doubt, for purposes of Section 12.9(a)(ii) of the Equity Definitions, “any adjustment pursuant applicable law or regulation” shall include the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act of 2010, any rules and regulations promulgated thereunder and any similar law or regulation, and the consequences specified in Section 12.9(b)(i) of the Equity Definitions shall apply to any Change in Law arising from any such act, rule or regulation. Failure to Deliver: Applicable as amended by this Agreement. If there is inability in the Indenture market to deliver Shares due to illiquidity on a day that would have been a Settlement Date, then the Settlement Date shall be the first succeeding Exchange Business Day on which there is no such inability to deliver, but in respect no such event shall the Settlement Date be later than the date that is two (2) Exchange Business Days immediately following what would have been the Settlement Date but for such inability to deliver. Insolvency Filing: Applicable Hedging Disruption: Not Applicable Increased Cost of Hedging: Not Applicable Loss of Stock Borrow: Not Applicable Increased Cost of Stock Borrow: Not Applicable Hedging Party: Seller or an Adjustment Event affiliate of Seller that is involved in respect of which a corresponding adjustment is made in respect the hedging of the Transaction under “Method of Adjustment” above); for all applicable Additional Disruption Events Determining Party: Seller for all applicable Extraordinary Events Non-Reliance: Applicable Agreements and provided further that the Calculation Agent may limit or alter any such adjustment referenced in this paragraph so that the fair value of the Transaction to Dealer (taking into account a commercially reasonable hedge position) is not adversely affected as a result of such adjustment; and 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 (or depositary receipts evidencing interests in shares) of an entity or person that is not a corporation organized under the laws of the United States, any State thereof or the District of Columbia or (ii) Counterparty following such Merger Event will not be a corporation organized under the laws of the United States, any State thereof or the District of Columbia or will not be the Issuer following such Merger Event, Dealer may elect in its sole discretion that Cancellation and Payment (Calculation Agent Determination) shall apply.Acknowledgments Regarding Hedging Activities: Applicable Additional Acknowledgments: Applicable

Merger Events. Notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means shall have the occurrence same meaning as the meaning of any event or condition “Common Stock Change Event” set forth in Section 5.08(A) [5.09(A)]42 of the Indenture. Consequences of Merger Events/Tender Offers: Notwithstanding Sections Section 12.2 and 12.3 of the Equity Definitions, upon the occurrence of a Merger Event that the Calculation Agent determines by reference to Section 5.08(A) of the Indenture would result in an adjustment under the IndentureEvent, the Calculation Agent Agent, acting in good faith and commercially reasonably, shall make a corresponding adjustment in a commercially reasonable manner respect of any adjustment under the Indenture to any one or more of the terms nature of the Shares, the Number of Options, the Option Entitlement, composition of the “Shares” hereunder and any other variable relevant to the exercise, settlementsettlement or payment for the Transaction, payment or other terms to the extent an analogous adjustment is required under Section [5.09]43 of the TransactionIndenture in respect of such Merger Event, as determined in good faith and in a commercially reasonable manner by the Calculation Agent by reference to such Section, subject to “Discretionary Adjustments” above; provided that such adjustment shall be made without regard to (i) any adjustment to the Conversion Rate pursuant to Section 5.06 a Make-Whole Adjustment or 5.07 a 40 Include reference to provision of the Indenture and (ii) the election, if any, providing for adjustments to prices by Counterparty to adjust the Conversion Rate (board of directors in the case of this clause (ii), other than, for the avoidance adjustment events that occur during an averaging period. 41 Include reference to Common Stock Change Event provision. 42 Include cross reference to sections of doubt, any adjustment pursuant to the Indenture in respect setting forth the list of an Adjustment Event in respect of which a corresponding adjustment is made in respect of the Transaction under “Method of Adjustment” above); merger and provided further that the Calculation Agent may limit or alter any such adjustment referenced in this paragraph so that the fair value of the Transaction to Dealer (taking into account a commercially reasonable hedge position) is not adversely affected as a result of such adjustment; and 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 (or depositary receipts evidencing interests in shares) of an entity or person that is not a corporation organized under the laws of the United States, any State thereof or the District of Columbia or (ii) Counterparty following such Merger Event will not be a corporation organized under the laws of the United States, any State thereof or the District of Columbia or will not be the Issuer following such Merger Event, Dealer may elect in its sole discretion that Cancellation and Payment (Calculation Agent Determination) shall applysimilar events.

Merger Events. Notwithstanding Section 12.1(b) of the Equity Definitions, a “"Merger Event” " means the occurrence of any event or condition set forth in clause (2) of the definition of Fundamental Change in Section 5.08(A) 1.01 of the Indenture. Consequences Tender Offers: 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 (1) of the definition of Fundamental Change in Section 1.01 of the Indenture. Consequence of Merger EventsEvents/ Tender Offers: Notwithstanding Sections Section 12.2 and Section 12.3 of the Equity Definitions, upon the occurrence of a Merger Event that the Calculation Agent determines by reference to Section 5.08(A) of the Indenture would result in an adjustment under the Indentureor a Tender Offer, the Calculation Agent shall make a corresponding adjustment in a commercially reasonable manner respect of any adjustment under the Indenture to any one or more of the terms nature of the Shares, Strike Price, Number of Options, the Option Entitlement and any other variable relevant to the exercise, settlement, settlement or payment or other terms of for the Transaction; provided, subject to “Discretionary Adjustments” above; provided however, that such adjustment shall be made without regard to (i) any adjustment to the Conversion Rate pursuant to for the issuance of additional shares as set forth in Section 5.06 or 5.07 11.03 of the Indenture and (ii) the election, if any, by Counterparty to adjust the Conversion Rate (in the case of this clause (ii), other than, for the avoidance of doubt, any adjustment pursuant to the Indenture in respect of an Adjustment Event in respect of which a corresponding adjustment is made in respect of the Transaction under “Method of Adjustment” above)Indenture; and provided further that the Calculation Agent may limit or alter any such adjustment referenced in this paragraph so that the fair value of the Transaction to Dealer (taking into account a commercially reasonable hedge position) is not adversely affected as a result of such adjustment; and 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 (or depositary receipts evidencing interests in shares) of an entity or person that is not a corporation organized under the laws of the United States, any State thereof or the District of Columbia Columbia," Cancellation and Payment shall apply. Nationalization, Insolvency or (ii) Counterparty following such Merger Event will not be a corporation organized under the laws of the United States, any State thereof or the District of Columbia or will not be the Issuer following such Merger Event, Dealer may elect in its sole discretion that Cancellation and Payment (Calculation Agent Delisting: 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, re-traded or re-quoted on any of the New York Stock Exchange, the American Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, the American Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors), such exchange or quotation system shall applythereafter be deemed to be the Exchange.

Merger Events. Notwithstanding Applicable; provided that notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means the occurrence of any event or condition set forth in the definition of “Merger Event” in Section 5.08(A14.07(a) of the Indenture. Consequences Tender Offers: 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 Sections Section 12.2 and Section 12.3 of the Equity Definitions, upon the occurrence of a Merger Event that the Calculation Agent determines by reference to Section 5.08(A) of the Indenture would result in an adjustment under the Indentureor a Tender Offer, the Calculation Agent shall make a corresponding adjustment in a commercially reasonable manner respect of any adjustment under the Indenture to any one or more of the terms nature of the Shares, Strike Price, the Option Entitlement and any other variable relevant to the exercise, settlement, settlement or payment or other terms of for the Transaction; provided, subject to “Discretionary Adjustments” above; provided however, that such adjustment shall be made without regard to (i) any adjustment to the Conversion Rate pursuant to for the issuance of additional shares as set forth in Section 5.06 or 5.07 14.03 of the Indenture and (ii) the election, if any, by Counterparty to adjust the Conversion Rate (in the case of this clause (ii), other than, for the avoidance of doubt, any adjustment pursuant to the Indenture in respect of an Adjustment Event in respect of which a corresponding adjustment is made in respect of the Transaction under “Method of Adjustment” above)Indenture; and provided further that the Calculation Agent may limit or alter any such adjustment referenced in this paragraph so that the fair value of the Transaction to Dealer (taking into account a commercially reasonable hedge position) is not adversely affected as a result of such adjustment; and 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 (or depositary receipts evidencing interests in shares) of an entity or person that is not a corporation organized under the laws of the United States, any State thereof or the District of Columbia Columbia,” Cancellation and Payment may apply. Nationalization, Insolvency or (ii) Counterparty following such Merger Event will not be a corporation organized under the laws of the United States, any State thereof or the District of Columbia or will not be the Issuer following such Merger Event, Dealer may elect in its sole discretion that 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, re-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any 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 apply.thereafter be deemed to be the Exchange. Additional Disruption Events: Change in Law: Applicable; provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the word “Shares” with the phrase “Hedge Positions” in clause (X) thereof and (ii) inserting the parenthetical “(including, for the avoidance of doubt and without limitation, adoption or promulgation of new regulations authorized or mandated by existing statute)” at the end of clause (A) thereof. Failure to Deliver: Applicable Hedging Disruption: Applicable; provided that:

Merger Events. Notwithstanding Applicable; provided that notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means the occurrence of any event or condition set forth in the definition of “Merger Event” in Section 5.08(A14.07(a) of the Indenture. Tender Offers: 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. Consequences of Merger EventsEvents/ Tender Offers: Notwithstanding Sections Section 12.2 and Section 12.3 of the Equity Definitions, upon the occurrence of a Merger Event that the Calculation Agent determines by reference to Section 5.08(A) of the Indenture would result in an adjustment under the Indentureor 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 commercially reasonable manner to the terms Merger Event), Strike Price, Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement, settlement or payment or other terms of for the Transaction, subject to the second paragraph under “Discretionary Adjustments” aboveMethod of Adjustment”; provided provided, however, that such adjustment shall be made without regard to (i) any adjustment to the Conversion Rate pursuant to Section 5.06 or 5.07 of the Indenture and (ii) the election, if any, by Counterparty to adjust the Conversion Rate (in the case of this clause (ii), other than, for the avoidance of doubt, any adjustment pursuant to the Indenture in respect of an Adjustment Event in respect of which a corresponding adjustment is made in respect of the Transaction under “Method of Adjustment” above)Excluded Provision; and provided further that the Calculation Agent may limit or alter any such adjustment referenced in this paragraph so that the fair value of the Transaction to Dealer (taking into account a commercially reasonable hedge position) is not adversely affected as a result of such adjustment; and 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 (or depositary receipts evidencing interests in 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 a corporation organized under the laws of the United States, any State thereof or the District of Columbia Columbia, then, in either case, such Merger Event or will Tender Offer shall constitute an Additional Termination Event with respect to which the Transaction is the sole Affected Transaction and Counterparty is the sole Affected Party, and Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement and to determine the amount payable pursuant to Section 6(e) of the Agreement; provided further that, for the avoidance of doubt, adjustments shall be made pursuant to the provisions set forth above regardless of whether any Merger Event or Tender Offer gives rise to an Early Conversion. Consequences of Announcement Events: Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions; provided that, in respect of an Announcement Event, (x) references to “Tender Offer” shall be replaced by references to “Announcement Event” and references to “Tender Offer Date” shall be replaced by references to “date of such Announcement Event”, (y) the word “shall” in the second line shall be replaced with “may” and the phrase “exercise, settlement, payment or any other terms of the Transaction (including, without limitation, the spread)” shall be replaced with the phrase “Cap Price (provided that in no event shall the Cap Price be less than the Strike Price)”, and (z) for the avoidance of doubt, the Calculation Agent may determine whether the relevant Announcement Event has had an economic effect on the Transaction (and, if so, may adjust the Cap Price accordingly) on one or more occasions on or after the date of the Announcement Event up to, and including, the Expiration Date, any Early Termination Date and/or any other date of cancellation, it being understood that any adjustment in respect of an Announcement Event shall take into account any earlier adjustment relating to the same Announcement Event and shall not be duplicative with any other adjustment or cancellation valuation made pursuant to this Confirmation, the Issuer following Equity Definitions or the Agreement. Section 12.3(d) of the Equity Definitions is hereby modified by (x) adding the words “whether within a commercially reasonable (as determined by the Calculation Agent) period of time prior to or after the Announcement Event” after “Transaction)” in the sixth line thereof and (y) deleting the text beginning “Cancellation ...” on the 11th line thereof through the end of the paragraph and inserting “such Merger event shall constitute an Additional Termination Event with respect to which the Transaction is the sole Affected Transaction and Counterparty is the sole Affected Party, and Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement and to determine the amount payable pursuant to Section 6(e) of the Agreement.” An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, Dealer may elect in its sole discretion that Cancellation and Payment (Calculation Agent Determination) shall applyto which Article 12 of the Equity Definitions is applicable.

Merger Events. Notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means shall have the occurrence same meaning as the meaning of any event or condition “Common Stock Change Event” set forth in Section 5.08(A13.07(a) of the Indenture. Consequences of Merger Events/Tender Offers: Notwithstanding Sections Section 12.2 and 12.3 of the Equity Definitions, upon the occurrence of a Merger Event that the Calculation Agent determines by reference to Section 5.08(A) of the Indenture would result in an adjustment under the IndentureEvent, the Calculation Agent Agent, acting in good faith and commercially reasonably, shall make a corresponding adjustment in a commercially reasonable manner respect of any adjustment under the Indenture to any one or more of the terms nature of the Shares, the Number of Options, the Option Entitlement, composition of the “Shares” hereunder and any other variable relevant to the exercise, settlementsettlement or payment for the Transaction, payment or other terms to the extent an analogous adjustment is required under Section 13.07 of the TransactionIndenture in respect of such Merger Event, as determined in good faith and in a commercially reasonable manner by the Calculation Agent by reference to such Section, subject to “Discretionary Adjustments” above; provided that such adjustment shall be made without regard to (i) any adjustment to the Conversion Rate pursuant to Section 5.06 a Make-Whole Adjustment or 5.07 of the Indenture and (ii) the election, if any, by Counterparty to adjust the Conversion Rate (in the case of this clause (ii), other than, for the avoidance of doubt, any adjustment pursuant to the Indenture a Discretionary Adjustment; provided further that in respect of an Adjustment Event any election by the holders of Shares with respect to the consideration due upon consummation of any Merger Event, the Calculation Agent shall have the right to adjust any variable relevant to the exercise, settlement or payment for the Transaction as appropriate to compensate Dealer for any losses (including, without limitation, market losses customary for transactions similar to the Transaction with counterparties similar to Counterparty) relating to any mismatch on its Hedge Position, assuming Dealer maintains a commercially reasonable Hedge Position, and the type and amount of consideration actually paid or issued to the holders of Shares in respect of which a corresponding adjustment is made in respect of the Transaction under “Method of Adjustment” above); and provided further that the Calculation Agent may limit or alter any such adjustment referenced in this paragraph so that the fair value of the Transaction to Dealer (taking into account a commercially reasonable hedge position) is not adversely affected as a result of such adjustmentMerger Event; and 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 (or depositary receipts evidencing interests in shares) of securities issued by an entity or person that is not a corporation organized under the laws of the United States, any State state thereof or the District of Columbia or (ii) the Counterparty to the Transaction, following such Merger Event Event, will not be a corporation organized under the laws of the United States, any State thereof or the District of Columbia or will not be the Issuer following such Merger EventIssuer, Dealer may elect in its sole commercially reasonable discretion that Cancellation and Payment (Calculation Agent Determination) shall apply. For the avoidance of doubt, adjustments shall be made pursuant to the provisions set forth above regardless of whether any Merger Event gives rise to an Early Conversion. For purposes of this paragraph, “Tender Offer” means the occurrence of any event or condition set forth in Section 13.04(e) of the Indenture.

Merger Events. Notwithstanding Section 12.1(b) of the Equity Definitions, except for purposes of the provisions set forth under “Consequences of Announcement Event” and “Announcement Event” below, a “Merger Event” means the occurrence of any event or condition set forth in Section 5.08(A14.07(a) of the Indenture. Notice of Merger Consideration: In respect of any Merger Event, Counterparty shall notify the Calculation Agent of, if applicable, the weighted average of the kind and amounts of consideration to be received by the holders of Shares and Underlying Shares in any Merger Event who affirmatively make such an election, reasonably promptly, but in any event within two Business Days, upon determination thereof (and in any event prior to the effective date of the Merger Event), and Counterparty shall deliver to Dealer a copy of any supplemental indenture effecting such adjustments (a “Merger Supplemental Indenture”) as reasonably as practicable prior to execution thereof. Consequences of Merger Events: Notwithstanding Sections Section 12.2 and 12.3 of the Equity Definitions, upon the occurrence of a Merger Event that the Calculation Agent determines by reference to Section 5.08(A) of the Indenture would result in an adjustment under the IndentureEvent, the Calculation Agent shall make a the corresponding adjustment in a commercially reasonable manner respect of any adjustment under the Indenture to any one or more of the terms nature of the Shares, the Strike Price, the Note Hedging Unit Entitlement, the Settlement Date and any other variable relevant to the exercise, settlement, settlement or payment or other terms of the Transaction, Transaction (other than the Number of Note Hedging Units and subject to the provisions set forth under “Discretionary AdjustmentsSettlement Amount” aboveabove in respect of any Counterparty Determination); provided that such adjustment shall be made without regard to (i) any adjustment to the Conversion Rate pursuant to Section 5.06 Fundamental Change Adjustment or 5.07 of the Indenture and (ii) the election, if any, by Counterparty to adjust the Conversion Rate (in the case of this clause (ii), other than, for the avoidance of doubt, any adjustment pursuant to the Indenture in respect of an Adjustment Event in respect of which a corresponding adjustment is made in respect of the Transaction under “Method of Discretionary Adjustment” above); and provided further that the Calculation Agent may limit or alter any such adjustment referenced in this paragraph so that the fair value of the Transaction to Dealer (taking into account a commercially reasonable hedge position) is not adversely affected as a result of such adjustment; and provided further that if, with respect to a Merger Event, (i) the consideration for the Shares or Underlying Shares includes (or, at the option of a holder of Underlying Shares, may include) shares (or depositary receipts evidencing interests in with respect to shares) of an entity or person that is not a corporation or entity that is treated as a corporation for U.S. federal income tax purposes organized under the laws of (1) the United States, any State thereof, the District of Columbia or the Cayman Islands or, (2) to the extent having the Underlying Shares Issuer organized under the laws of the United Statesjurisdictions in this clause (2) would not have a material adverse effect on Dealer’s rights and obligations hereunder, any State thereof Dealer’s hedging activities or the District costs of Columbia engaging in the foregoing and, provided that Counterparty negotiates in good faith with Dealer all the necessary and appropriate amendments to this Confirmation related to the foregoing in this clause (2), including, without limitation, causing its counsel to deliver written legal opinions reasonably requested by Dealer and will reimburse Dealer all of its out-of-pocket costs (including costs of its counsel) reasonably incurred by Dealer, the British Virgin Islands, Bermuda, Hong Kong or the United Kingdom (the jurisdictions listed in (1) and, to the extent the requirements listed in (2) are satisfied, the jurisdictions listed in (2), “Permitted Merger Jurisdictions”); or (ii) Counterparty following such Merger Event (A) will not be a corporation or entity that is treated as a corporation for U.S. federal income tax purposes organized under the laws of the United States, any State thereof a Permitted Merger Jurisdiction or the District of Columbia or (B) will not be the Underlying Shares Issuer or a subsidiary of the Underlying Shares Issuer following such Merger Event, Dealer may elect in its sole discretion that Cancellation and Payment (Calculation Agent Determination) may apply at Dealer’s good faith, commercially reasonable election. Consequences of Announcement Events: If an Announcement Event occurs, the Calculation Agent will determine the cumulative economic effect of the Announcement Event on the theoretical value of the Transaction (i) on a date occurring a commercially reasonable period of time after the date of announcement of the relevant Announcement Event and (ii) on the Valuation Date or any earlier date of termination or cancellation for the Transaction (in each case, which may include, without limitation, any actual or expected change in volatility, dividends, correlation, stock loan rate or liquidity relevant to the Shares or Underlying Shares or to the Transaction whether prior to or after the Announcement Event or for any reasonable period of time), and if, in the case of clause (i) or (ii), such economic effect is material and Dealer so elects in its sole discretion, the Calculation Agent will (x) adjust the Cap Price (but in no event to a number lower than the Strike Price) to reflect such economic effect and (y) determine the effective date of such adjustment; provided that, notwithstanding the foregoing, if the related Merger Date or Tender Offer Date, as the case may be, or any subsequent related Announcement Event, occurs on or prior to the effective date of such adjustment, any further adjustment to the terms of the Transaction with respect to such Merger Date, Tender Offer Date or Announcement Event pursuant to this Confirmation and/or the Equity Definitions shall applytake such earlier adjustment into account (and, for the avoidance of doubt, where Cancellation and Payment is applicable, the Determining Party shall take into account such adjustment in determining the Cancellation Amount); provided further that in no event shall the Cap Price be less than the Strike Price.