Common use of Consequences of Merger Events Clause in Contracts

Consequences of Merger Events. Merger Event: Applicable; provided that if an event occurs that constitutes both a Merger Event under Section 12.1(b) of the Equity Definitions and an Additional Termination Event under paragraph 5(d) of this Confirmation, the provisions of Section 12.2 of the Equity Definitions will apply; provided further that Section 12.1(b) of the Equity Definitions is hereby amended by (i) adding the words “or Issuer” after the words “relevant Shares”; (ii) deleting the word “or” after the parenthetical in line 10 thereof; (iii) deleting the remainder of Section 12.1(b) following the definition of “Reverse Merger” in subsection (iv) thereof; (iv) adding the words “(v) the sale or transfer of all or substantially all of the assets of the Issuer, (vi) any acquisition by Issuer or any of its subsidiaries where the estimated value of the aggregate value transferable by or to the Issuer or its subsidiaries exceeds 35% of the market capitalization of the Issuer, in each case, as determined by the Calculation Agent as of the date such acquisition is first announced, (vii) any lease, exchange, transfer, disposition (including, without limitation, by way of spin-off or distribution) of assets (including, without limitation, any capital stock or other ownership interests or other ownership interest in the Issuer’s subsidiaries) or other similar event by Issuer or any of its subsidiaries where the estimated value of the aggregate value transferable to or from the Issuer or its subsidiaries exceeds 15% of the market capitalization of the Issuer, in each case, as determined by the Calculation Agent as of the date such transaction is first announced or (viii) any transaction with respect to which Issuer or its board of directors has a legal obligation to make a recommendation to its shareholders in respect of such transaction (whether pursuant to Rule 14e-2 under the Exchange Act or otherwise)” after subsection (iv). Notwithstanding anything to the contrary contained in this Confirmation, if an event is both a Merger Event and a Potential Adjustment Event, such event shall be treated as a Merger Event and not as a Potential Adjustment Event. Share-for-Share: Modified Calculation Agent Adjustment. Share-for-Other: Cancellation and Payment (Calculation Agent Determination). Share-for-Combined: Component Adjustment. Tender Offer: Applicable; provided that (i) Section 12.1(d) of the Equity Definitions is hereby amended by replacing “10%” with “20 %”, (ii) the definition of “Tender Offer” in Section 12.1 of the Equity Definitions shall be amended by replacing the words “voting shares” in the fourth line thereof with the word “Shares”; (iii) the definition of “Tender Offer Date” in Section 12.1 of the Equity Definitions shall be amended by replacing the words “voting shares” in the first line thereof with the word “Shares”; and (iv) if an event occurs that constitutes both a Tender Offer under Section 12.1(d) of the Equity Definitions and an Additional Termination Event under paragraph 5(d) of this Confirmation, the provisions of Section 12.3 of the Equity Definitions will apply. Share-for-Share: Modified Calculation Agent Adjustment. Share-for-Other: Modified Calculation Agent Adjustment. Share-for-Combined: Modified Calculation Agent Adjustment.

Consequences of Merger Events. Merger Event: Applicable; provided that if an event occurs that constitutes both a Merger Event under Section 12.1(b) of the Equity Definitions and an Additional Termination Event under paragraph 5(d) of this Confirmation, the provisions of Section 12.2 of the Equity Definitions will apply; provided further that Section 12.1(b) of the Equity Definitions is hereby amended by (i) adding the words “or Issuer” after the words “relevant Shares”; and (ii) deleting the word “or” after the parenthetical in line 10 thereof; provided further that solely for the purposes of any event that would give rise to any adjustment to the Discount by the Calculation Agent under this Transaction, the definition of Merger Event is hereby amended by (iii1) deleting the remainder of Section 12.1(b) following the definition of “Reverse Merger” in subsection (iv) thereof; and (iv2) adding the words “(v) the sale or transfer of all or substantially all of the assets of the Issuer, (vi) any acquisition by Issuer or any of its subsidiaries where the estimated value of the aggregate value consideration transferable by or to the Issuer or its subsidiaries exceeds 3550% of the market capitalization of the Issuer, in each case, as determined by the Calculation Agent Agent, in its commercially reasonable discretion, as of the date such acquisition is first announced, announced or (vii) any lease, exchange, transfer, disposition (including, without limitation, by way of spin-off or distribution) of assets (including, without limitation, any capital stock or other ownership interests or other ownership interest in the Issuer’s subsidiaries) or other similar event by Issuer or any of its subsidiaries where the estimated value of the aggregate value consideration transferable to or from the receivable by Issuer or its subsidiaries exceeds 1525% of the market capitalization of the Issuer, in each case, as determined by the Calculation Agent Agent, in its commercially reasonable discretion, as of the date such transaction is first announced or (viii) any transaction with respect to which Issuer or its board of directors has a legal obligation to make a recommendation to its shareholders in respect of such transaction (whether pursuant to Rule 14e-2 under the Exchange Act or otherwise)announced” after subsection (iv). Notwithstanding anything to the contrary contained in this Confirmation, if an event is both a Merger Event and a Potential Adjustment Event, such event shall be treated as a Merger Event and not as a Potential Adjustment Event. Share-for-Share: Modified Calculation Agent Adjustment; provided that the Calculation Agent shall not adjust Relevant Contract Days. Share-for-Other: Cancellation and Payment (Calculation Agent Determination). Share-for-Combined: Cancellation and Payment (Calculation Agent Determination); provided that Dealer may elect Component Adjustment. Consequences of Tender Offers: Tender Offer: Applicable; provided that (i) Section 12.1(d) of the Equity Definitions is hereby amended by replacing “10%” with “20 %”, (ii) the definition of “Tender Offer” in Section 12.1 of the Equity Definitions shall will be amended by replacing the words phrase “greater than 10% and less than 100% of the outstanding voting sharesshares of the Issuer” in the third and fourth line thereof with “(a) greater than 10% and less than 100% of the word “Sharesoutstanding Shares of the Issuer in the event that such Tender Offer is being made by the Issuer or any subsidiary thereof or (b) greater than 15% and less than 100% of the outstanding Shares of the Issuer in the event that such Tender Offer is being made by any entity or person other than the Issuer or any subsidiary thereof”. Share-for-Share: Modified Calculation Agent Adjustment; (iii) provided that the Calculation Agent shall not adjust Relevant Contract Days. Share-for-Other: Modified Calculation Agent Adjustment; provided that the Calculation Agent shall not adjust Relevant Contract Days. Share-for-Combined: Modified Calculation Agent Adjustment; provided that the Calculation Agent shall not adjust Relevant Contract Days. Modified Calculation Agent Adjustment: For greater certainty, the definition of “Modified Calculation Agent Adjustment” in Sections 12.2 and 12.3 of the Equity Definitions shall be amended by (i) adding the following italicized language after the parenthetical provision: “(including adjustments to account for changes in volatility, expected dividends, stock loan rate or liquidity relevant to the Shares or to the Transaction) from the Exchange Business Day immediately preceding the Announcement Date or the Determination Date, as applicable, to the first Exchange Business Day immediately following the Merger Date (Section 12.2) or Tender Offer Date (Section 12.3)” and (ii) deleting the phrase “expected dividends,” from such parenthetical provision. Announcement Date: The definition of “Announcement Date” in Section 12.1 of the Equity Definitions shall be amended by (i) replacing the word “leads to the” in the third and the fifth lines thereof with the words “, if completed, would lead to a”; (ii) replacing the words “voting shares” in the first fifth line thereof with the word “Shares”; and (iii) inserting the words “by any entity that is likely to be a party to the transaction” after the word “announcement” in the second and the fourth lines thereof; (iv) if replacing the words “a firm” with the word “any” in the second and fourth lines thereof; (v) inserting the words “or to explore the possibility of engaging in” after the words “engage in” in the second line thereto; and (vi) inserting the words “or to explore the possibility of purchasing or otherwise obtaining” after the word “obtain” in the fourth line thereto. Announcement Event: If an event occurs Announcement Event has occurred, the Calculation Agent shall have the right to determine the economic effect of the Announcement Event on the theoretical value of the Transaction (including without limitation any change in volatility, stock loan rate or liquidity relevant to the Shares or to the Transaction) (i) at a time that constitutes both it deems appropriate, from the Announcement Date to the date of such determination (the “Determination Date”), and (ii) on the Valuation Date or on a Tender Offer under date on which a payment amount is determined pursuant to Section 12.1(d6 of the Agreement or Sections 12.7 or 12.8 of the Equity Definitions, from the Exchange Business Day immediately preceding the Announcement Date or the Determination Date, as applicable, to the Valuation Date or the date on which a payment amount is determined pursuant to Section 6 of the Agreement or Sections 12.7 or 12.8 of the Equity Definitions. If any such economic effect is material, the Calculation Agent may either (i) adjust the terms of the Transaction to reflect such economic effect or (ii) terminate the Transaction, in which case the Determining Party will determine the Cancellation Amount payable by one party to the other; provided that the reference in Section 12.8(a) of the Equity Definitions and an Additional Termination Event under paragraph 5(d) of to “Extraordinary Event” shall be replaced for this Confirmation, purpose with a reference to “Announcement Event.” “Announcement Event” shall mean the provisions of Section 12.3 occurrence of the Equity Definitions will apply. Share-for-Share: Modified Announcement Date of a Merger Event or Tender Offer or of a potential Merger Event or potential Tender Offer, or any publicly announced change or amendment to any such announced transaction or event (including any announcement relating to the abandonment thereof); provided that if the Calculation Agent Adjustment. Share-for-Other: Modified shall make any adjustment to the terms of the Share Forward Transaction upon the occurrence of a particular Announcement Event, then the Calculation Agent Adjustment. Share-for-Combined: Modified Calculation Agent Adjustmentshall make an adjustment to the terms of the Share Forward Transaction upon any announcement regarding the same event that gave rise to the original Announcement Event, including, without limitation, regarding the abandonment of any such event.

Consequences of Merger Events. Merger Event: Applicable; provided that if an event occurs that constitutes both a Merger Event under Section 12.1(b) of the Equity Definitions and an Additional Termination Event under paragraph 5(d) of this Confirmation, the provisions of Section 12.2 of the Equity Definitions will apply; provided further that Section 12.1(b) of the Equity Definitions is hereby amended by (i) adding the words “or Issuer” after the words “relevant Shares”; and (ii) deleting the word “or” after the parenthetical in line 10 thereof; provided further that solely for the purposes of any event that would give rise to any adjustment to the Discount by the Calculation Agent under this Transaction, the definition of Merger Event is hereby amended by (iii1) deleting the remainder of Section 12.1(b) following the definition of “Reverse Merger” in subsection (iv) thereof; and (iv2) adding the words “(v) the sale or transfer of all or substantially all of the assets of the Issuer, (vi) any acquisition by Issuer or any of its subsidiaries where the estimated value of the aggregate value consideration transferable by or to the Issuer or its subsidiaries exceeds 3550% of the market capitalization of the Issuer, in each case, as determined by the Calculation Agent as of the date such acquisition is first announced, announced or (vii) any lease, exchange, transfer, disposition (including, without limitation, by way of spin-off or distribution) of assets (including, without limitation, any capital stock or other ownership interests or other ownership interest in the Issuer’s subsidiaries) or other similar event by Issuer or any of its subsidiaries where the estimated value of the aggregate value consideration transferable to or from the receivable by Issuer or its subsidiaries exceeds 1525% of the market capitalization of the Issuer, in each case, as determined by the Calculation Agent as of the date such transaction is first announced or (viii) any transaction with respect to which Issuer or its board of directors has a legal obligation to make a recommendation to its shareholders in respect of such transaction (whether pursuant to Rule 14e-2 under the Exchange Act or otherwise)announced” after subsection (iv). Notwithstanding anything to the contrary contained in this Confirmation, if an event is both a Merger Event and a Potential Adjustment Event, such event shall be treated as a Merger Event and not as a Potential Adjustment Event. Share-for-Share: Modified Calculation Agent Adjustment; provided that the Calculation Agent shall not adjust Relevant Contract Days. Share-for-Other: Cancellation and Payment (Calculation Agent Determination). Share-for-Combined: Cancellation and Payment (Calculation Agent Determination); provided that Dealer may elect Component Adjustment. Tender Offer: Applicable; provided that (i) Section 12.1(d) of the Equity Definitions is hereby amended by replacing “10%” with “20 %”, (ii) the definition of “Tender Offer” in Section 12.1 of the Equity Definitions shall will be amended by replacing the words phrase “greater than 10% and less than 100% of the outstanding voting sharesshares of the Issuer” in the third and fourth line thereof with “(a) greater than 10% and less than 100% of the word “Shares”; (iii) outstanding Shares of the definition of “Issuer in the event that such Tender Offer Date” in Section 12.1 is being made by the Issuer or any subsidiary thereof or (b) greater than 15% and less than 100% of the Equity Definitions shall be amended by replacing outstanding Shares of the words “voting shares” Issuer in the first line thereof with the word “Shares”; and (iv) if an event occurs that constitutes both a such Tender Offer under Section 12.1(d) of is being made by any entity or person other than the Equity Definitions and an Additional Termination Event under paragraph 5(d) of this Confirmation, the provisions of Section 12.3 of the Equity Definitions will applyIssuer or any subsidiary thereof”. Share-for-Share: Modified Calculation Agent Adjustment; provided that the Calculation Agent shall not adjust Relevant Contract Days. Share-for-Other: Modified Calculation Agent Adjustment; provided that the Calculation Agent shall not adjust Relevant Contract Days. Share-for-Combined: Modified Calculation Agent Adjustment; provided that the Calculation Agent shall not adjust Relevant Contract Days. Modified Calculation Agent Adjustment: For greater certainty, the definition of “Modified Calculation Agent Adjustment” in Sections 12.2 and 12.3 of the Equity Definitions shall be amended by (i) adding the following italicized language after the parenthetical provision: “(including adjustments to account for changes in volatility, expected dividends, stock loan rate or liquidity relevant to the Shares or to the Transaction) from the Exchange Business Day immediately preceding the Announcement Date or the Determination Date, as applicable, to the first Exchange Business Day immediately following the Merger Date (Section 12.2) or Tender Offer Date (Section 12.3)” and (ii) deleting the phrase “expected dividends,” from such parenthetical provision.