Common use of Merger Events Clause in Contracts

Merger Events. Notwithstanding Section 12.1(b) of the Equity Definitions, except for purposes of “Announcement Event” and “Adjustments to Cap Price” below, a “Merger Event” means the occurrence of a “Merger Event” (as defined in the Indenture). Notice of Merger Consideration: In respect of any Merger Event, Counterparty shall notify the Calculation Agent of (i) if applicable, the weighted average of the kind and amounts of consideration to be received by the holders of Shares in any Merger Event who affirmatively make such an election and (ii) the details of the adjustments made under the Indenture in respect of such Merger Event, in each case, immediately upon determination thereof (and in any event prior to the effective date of the Merger Event), and Counterparty shall deliver a copy of the supplemental indenture effecting such adjustments (a “Merger Supplemental Indenture”) as promptly as practicable following execution thereof. Consequences of Merger Events: Notwithstanding Section 12.2 of the Equity Definitions and without limitation of “Adjustment to Cap Price” below, upon the occurrence of a Merger Event, the Calculation Agent shall make the corresponding adjustment to the adjustment under the Indenture in respect of any adjustment under the Indenture to any one or more of the nature of the Shares, the Strike Price, the Number of Capped Note Hedging Units, the Capped Note Hedging Unit Entitlement, the Settlement Date and any other variable relevant to the exercise, settlement or payment or other terms of the Transaction (subject to the provisions set forth under “Settlement Amount” above in respect of any Counterparty Determination); provided that such adjustment shall be made without regard to any Fundamental Change Adjustment or any Discretionary Adjustment; 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 is not reduced 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 with respect to 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, Cancellation and Payment (Calculation Agent Determination) shall apply. Nationalization, Insolvency and 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 shall 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 such exchange or quotation system, such exchange or quotation system shall thereafter be deemed to be the Exchange.

Merger Events. Notwithstanding Section 12.1(b) of the Equity Definitions, except for purposes of “Announcement Event” and “Adjustments to Cap Price” below, a “Merger Event” means the occurrence of a “Merger Event” (as defined any event or condition set forth in Section 5.08(A) of the Indenture). Notice of Merger Consideration: In respect of any Merger Event, Counterparty shall notify the Calculation Agent of (i) if applicable, the weighted average of the kind and amounts of consideration to be received by the holders of Shares in any Merger Event who affirmatively make such an election and (ii) the details of the adjustments made under the Indenture in respect of such Merger Event, in each case, immediately upon determination thereof (and in any event prior to the effective date of the Merger Event), and Counterparty shall deliver a copy of the supplemental indenture effecting such adjustments (a “Merger Supplemental Indenture”) as promptly as practicable following execution thereof. Consequences of Merger Events: Notwithstanding Section Sections 12.2 and 12.3 of the Equity Definitions and without limitation of “Adjustment to Cap Price” belowDefinitions, upon the occurrence of a Merger EventEvent 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 the a corresponding adjustment in a commercially reasonable manner to the adjustment under the Indenture in respect of any adjustment under the Indenture to any one or more of the nature of the Shares, the Strike Price, the Number of Capped Note Hedging Units, the Capped Note Hedging Unit Entitlement, the Settlement Date and any other variable terms relevant to the exercise, settlement or settlement, payment or other terms of the Transaction (Transaction, subject to the provisions set forth under “Settlement AmountDiscretionary Adjustments” above in respect of any Counterparty Determination)above; provided that such adjustment shall be made without regard to (i) any Fundamental Change 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 or any Discretionary 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 reduced 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 with respect to 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. Nationalization, Insolvency and 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 shall 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 such exchange or quotation system, such exchange or quotation system shall thereafter be deemed to be the Exchange.

Merger Events. Notwithstanding Section 12.1(b) of the Equity Definitions, except for purposes of “Announcement Event” and “Adjustments to Cap Price” below, a “Merger Event” means shall have the occurrence same meaning as the meaning of a “Merger Common Stock Change Event” (as defined set forth in Section [5.09(A)]42 of the Indenture). Notice of Merger Consideration: In respect of any Merger Event, Counterparty shall notify the Calculation Agent of (i) if applicable, the weighted average of the kind and amounts of consideration to be received by the holders of Shares in any Merger Event who affirmatively make such an election and (ii) the details of the adjustments made under the Indenture in respect of such Merger Event, in each case, immediately upon determination thereof (and in any event prior to the effective date of the Merger Event), and Counterparty shall deliver a copy of the supplemental indenture effecting such adjustments (a “Merger Supplemental Indenture”) as promptly as practicable following execution thereof. Consequences of Merger Events/Tender Offers: Notwithstanding Section 12.2 of the Equity Definitions and without limitation of “Adjustment to Cap Price” belowDefinitions, upon the occurrence of a Merger Event, the Calculation Agent Agent, acting in good faith and commercially reasonably, shall make the a corresponding adjustment to the adjustment under the Indenture in respect of any adjustment under the Indenture to any one or more of the nature of the Shares, the Strike PriceNumber of Options, the Number of Capped Note Hedging Units, the Capped Note Hedging Unit Option Entitlement, composition of the Settlement Date “Shares” hereunder and any other variable relevant to the exercise, settlement or payment or other terms for the Transaction, to the extent an analogous adjustment is required under Section [5.09]43 of the Transaction (subject to the provisions set forth under “Settlement Amount” above Indenture in respect of any Counterparty Determination)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 any Fundamental Change adjustment to the Conversion Rate pursuant to a Make-Whole Adjustment or any Discretionary Adjustment; and provided further a 40 Include reference to provision of Indenture providing for adjustments to prices by board of directors in the case of adjustment events that the Calculation Agent may limit or alter any such adjustment referenced in this paragraph so that the fair value occur during an averaging period. 41 Include reference to Common Stock Change Event provision. 42 Include cross reference to sections of the Transaction to Dealer is not reduced as a result Indenture setting forth the list of such adjustment; merger 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 with respect to 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, Cancellation and Payment (Calculation Agent Determination) shall apply. Nationalization, Insolvency and 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 shall 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 such exchange or quotation system, such exchange or quotation system shall thereafter be deemed to be the Exchangesimilar events.

Merger Events. Notwithstanding Section 12.1(b) of the Equity Definitions, except for purposes of “Announcement Event” and “Adjustments to Cap Price” below, a “"Merger Event” " means the occurrence of a “Merger Event” any event or condition set forth in clause (as defined 2) of the definition of Fundamental Change in Section 1.01 of the Indenture). Notice 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 Consideration: In respect of any Merger Event, Counterparty shall notify the Calculation Agent of (i) if applicable, the weighted average of the kind and amounts of consideration to be received by the holders of Shares in any Merger Event who affirmatively make such an election and (ii) the details of the adjustments made under the Indenture in respect of such Merger Event, in each case, immediately upon determination thereof (and in any event prior to the effective date of the Merger Event), and Counterparty shall deliver a copy of the supplemental indenture effecting such adjustments (a “Merger Supplemental Indenture”) as promptly as practicable following execution thereof. Consequences of Merger EventsEvents/ Tender Offers: Notwithstanding Section 12.2 and Section 12.3 of the Equity Definitions and without limitation of “Adjustment to Cap Price” belowDefinitions, upon the occurrence of a Merger EventEvent or a Tender Offer, the Calculation Agent shall make the a corresponding adjustment to the adjustment under the Indenture in respect of any adjustment under the Indenture to any one or more of the nature of the Shares, the Strike Price, the Number of Capped Note Hedging UnitsOptions, the Capped Note Hedging Unit Entitlement, the Settlement Date Option Entitlement and any other variable relevant to the exercise, settlement or payment or other terms of for the Transaction (subject to the provisions set forth under “Settlement Amount” above in respect of any Counterparty Determination)Transaction; provided provided, however, that such adjustment shall be made without regard to any Fundamental Change Adjustment or any Discretionary Adjustment; and provided further that adjustment to the Calculation Agent may limit or alter any such adjustment referenced Conversion Rate for the issuance of additional shares as set forth in this paragraph so that the fair value Section 11.03 of the Transaction to Dealer is not reduced as a result of such adjustmentIndenture; 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 with respect to 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, Cancellation and Payment (Calculation Agent Determination) shall apply. Nationalization, Insolvency and Delisting: Cancellation and Payment (Calculation Agent Determination); provided that that, in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it shall 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 such exchange of the New York Stock Exchange, the American Stock Exchange, The NASDAQ Global Select Market or quotation systemThe NASDAQ Global Market (or their respective successors), such exchange or quotation system shall thereafter be deemed to be the Exchange.

Merger Events. Notwithstanding Applicable; provided that notwithstanding Section 12.1(b) of the Equity Definitions, except for purposes of “Announcement Event” and “Adjustments to Cap Price” below, a “Merger Event” means the occurrence of a any event or condition set forth in the definition of “Merger Event” (as defined in Section 14.07(a) of the Indenture). Notice 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 Consideration: In respect of any Merger Event, Counterparty shall notify the Calculation Agent of (i) if applicable, the weighted average of the kind and amounts of consideration to be received by the holders of Shares in any Merger Event who affirmatively make such an election and (ii) the details of the adjustments made under the Indenture in respect of such Merger Event, in each case, immediately upon determination thereof (and in any event prior to the effective date of the Merger Event), and Counterparty shall deliver a copy of the supplemental indenture effecting such adjustments (a “Merger Supplemental Indenture”) as promptly as practicable following execution thereof. Consequences of Merger EventsEvents/ Tender Offers: Notwithstanding Section 12.2 and Section 12.3 of the Equity Definitions and without limitation of “Adjustment to Cap Price” belowDefinitions, upon the occurrence of a Merger EventEvent or a Tender Offer, the Calculation Agent shall make the a corresponding adjustment to the adjustment under the Indenture in respect of any adjustment under the Indenture to any one or more of the nature of the Shares, the Strike Price, the Number of Capped Note Hedging Units, the Capped Note Hedging Unit Entitlement, the Settlement Date Option Entitlement and any other variable relevant to the exercise, settlement or payment or other terms of for the Transaction (subject to the provisions set forth under “Settlement Amount” above in respect of any Counterparty Determination)Transaction; provided provided, however, that such adjustment shall be made without regard to any Fundamental Change Adjustment or any Discretionary Adjustment; and provided further that adjustment to the Calculation Agent may limit or alter any such adjustment referenced Conversion Rate for the issuance of additional shares as set forth in this paragraph so that the fair value Section 14.03 of the Transaction to Dealer is not reduced as a result of such adjustmentIndenture; 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 with respect to 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, Columbia,” Cancellation and Payment (Calculation Agent Determination) shall may apply. Nationalization, Insolvency and or Delisting: Cancellation and Payment (Calculation Agent Determination); provided that that, in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it shall 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 such exchange of the New York Stock Exchange, The NASDAQ Global Select Market or quotation systemThe NASDAQ Global Market (or their respective successors), 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 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 Section 12.1(b) of the Equity Definitions, except for purposes of “Announcement Event” and “Adjustments to Cap Price” below, a “Merger Event” means the occurrence of a “Merger Event” (as defined in any event or condition to which Section 5.10 of the Indenture)Note Indenture applies. Notice of Merger Consideration: In respect Upon the occurrence of any a Merger EventEvent 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 of (i) if applicable, the weighted average in writing of the kind types and amounts of consideration to be received by the that holders of Shares in any Merger Event who have affirmatively make such an election and (ii) the details of the adjustments made under the Indenture in respect elected to receive upon consummation of such Merger Event, in each caseor if no holders of Shares affirmatively makes such election, immediately upon determination thereof (the types and in any event prior to the effective date amounts of the Merger Event), and Counterparty shall deliver a copy of the supplemental indenture effecting consideration actually received by such adjustments (a “Merger Supplemental Indenture”) as promptly as practicable following execution thereofholders. Consequences of for Merger Events: Notwithstanding Section 12.2 of Share-for-Share: The Transaction will be adjusted in accordance with the Equity Definitions and without limitation of “Adjustment to Cap Price” below, upon Reference Notes as provided in the occurrence of a Merger Event, the Calculation Agent shall make the corresponding adjustment to the adjustment under the Indenture in respect of any adjustment under the Indenture to any one or more of the nature of the Shares, the Strike Price, the Number of Capped Note Hedging Units, the Capped Note Hedging Unit Entitlement, the Settlement Date and any other variable relevant to the exercise, settlement or payment or other terms of the Transaction (subject to the provisions set forth under “Settlement Amount” above in respect of any Counterparty Determination)Indenture; provided that such adjustment shall be made without regard to any Fundamental Change Adjustment or any Discretionary Adjustmentdiscretionary adjustment to the Conversion Rate by Counterparty pursuant to Section 5.06(a)(10) of the Indenture. Share-for-Other: The Transaction will be adjusted in accordance with the Reference Notes as provided in the Note Indenture; and provided further that the Calculation Agent may limit or alter any such adjustment referenced in this paragraph so that shall be made without regard to any discretionary adjustment to the fair value 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 Dealer is not reduced as a result of such adjustment; and provided further that if, with respect any discretionary adjustment 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 with respect Conversion Rate by Counterparty pursuant to sharesSection 5.06(a)(10) of an entity or person that is not a corporation organized under the laws Indenture. Tender Offer: Applicable, subject to “Consequences of Tender Offers” below. Notwithstanding Section 12.1(d) of the United StatesEquity Definitions, “Tender Offer” means the occurrence of any State thereof event or the District of Columbia or (iicondition set forth in Section 5.06(a)(5) Counterparty following such Merger Event will not be a corporation organized under the laws of the United States, 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 State thereof or discretionary adjustment to the District Conversion Rate by Counterparty pursuant to Section 5.06(a)(10) of Columbia or will not be the Issuer following such Merger Event, Cancellation and Payment (Calculation Agent Determination) shall applyIndenture. 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 shall 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 the NASDAQ Global Market or 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 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 word “Shares” where it appears in clause (X) 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 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 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 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 affiliate of Seller that is involved in the hedging of the Transaction for all applicable Additional Disruption Events Determining Party: Seller for all applicable Extraordinary Events Non-Reliance: Applicable Agreements and Acknowledgments Regarding Hedging Activities: Applicable Additional Acknowledgments: Applicable

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 “Adjustments to Cap PriceAnnouncement Event” below, a “Merger Event” means the occurrence of a “Merger Event” (as defined any event or condition set forth in Section 14.07(a) of the Indenture). Notice of Merger Consideration: In respect of any Merger Event, Counterparty shall notify the Calculation Agent of (i) 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 and (ii) the details of the adjustments made under the Indenture election, reasonably promptly, but in respect of such Merger Eventany event within two Business Days, in each case, immediately 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 the any supplemental indenture effecting such adjustments (a “Merger Supplemental Indenture”) as promptly reasonably as practicable following prior to execution thereof. Consequences of Merger Events: Notwithstanding Section 12.2 of the Equity Definitions and without limitation of “Adjustment to Cap Price” belowDefinitions, upon the occurrence of a Merger Event, the Calculation Agent shall make the corresponding adjustment to the adjustment under the Indenture in respect of any adjustment under the Indenture to any one or more of the nature of the Shares, the Strike Price, the Number of Capped Note Hedging Units, the Capped Note Hedging Unit Entitlement, the Settlement Date and any other variable relevant to the exercise, settlement or payment or other terms of the Transaction (other than the Number of Note Hedging Units and subject to the provisions set forth under “Settlement Amount” above in respect of any Counterparty Determination); provided that such adjustment shall be made without regard to any Fundamental Change Adjustment or any Discretionary Adjustment; 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 is not reduced 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 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, 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 apply. Nationalizationtake such earlier adjustment into account (and, Insolvency and Delisting: for the avoidance of doubt, where Cancellation and Payment (Calculation Agent Determinationis applicable, the Determining Party shall take into account such adjustment in determining the Cancellation Amount); provided further that in addition to no event shall the provisions of Section 12.6(a)(iii) of Cap Price be less than the Equity Definitions, it shall 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 such exchange or quotation system, such exchange or quotation system shall thereafter be deemed to be the ExchangeStrike Price.

Merger Events. Notwithstanding Section 12.1(b(a) Upon the terms and subject to the conditions set forth in this Agreement, at the Effective Time, by virtue of the Equity DefinitionsMerger and without any action on the part of the Company, except Subco and Purchaser, or any holder of Company Common Shares: (i) each issued and outstanding Company Common Share (other than Dissenting Shares) will automatically be converted into the right to receive: (A) a number of Resulting Issuer Common Shares equal to one multiplied by the Exchange Ratio (the “Closing Payment”); and (B) the Pro Rata Share of each Earn-Out Payment, if any, payable pursuant to Section 2.10 (the amounts payable pursuant to this Section 2.2(a)(i) collectively, the “Purchase Price”). For greater certainty, issued and outstanding Company Common Shares (other than Dissenting Shares) will be disposed of to the Purchaser by an Eligible Holder for purposes the Purchase Price; (ii) each Company Option outstanding immediately prior to the Effective Time will be cancelled and exchanged for one Resulting Issuer Option on the following basis: (A) the number of “Announcement Event” Resulting Issuer Common Shares subject to the Resulting Issuer Option, rounded down to the nearest whole share, will equal the number of Company Common Shares issuable upon exercise of the Company Option immediately prior to the Effective Time, multiplied by the Exchange Ratio; (B) the exercise price of each Resulting Issuer Option will equal the exercise price of the Company Option divided by the Exchange Ratio; (C) the other terms and “Adjustments conditions of the Resulting Issuer Option will be equivalent to Cap Price” belowthe terms and conditions of the Company Option, a “Merger Event” means including with respect to term, expiry date and vesting; (D) the occurrence Resulting Issuer Options will otherwise be governed by the Purchaser Stock Option Plan; (E) it is the intention of a “Merger Event” (the Parties that each Resulting Issuer Option issued pursuant to this Section 2.2(ii) shall continue to qualify following the Effective Time as an incentive stock option as defined in the Indenture). Notice of Merger Consideration: In respect of any Merger Event, Counterparty shall notify the Calculation Agent of (i) if applicable, the weighted average Section 422 of the kind and amounts of consideration Code to be received by the holders of Shares in any Merger Event who affirmatively make such an election and (ii) the details extent permitted under Section 422 of the adjustments made under Code and to the Indenture in respect of such Merger Event, in each case, extent the related Company Option qualified as an incentive stock option immediately upon determination thereof (and in any event prior to the effective date Effective Time; and (F) notwithstanding Section 2.2(a)(ii)(B), the exercise price per share and the number of Resulting Issuer Common Shares purchasable pursuant to each exchanged for Company Option following the Effective Time as well as the terms and conditions of such option shall be adjusted, to the extent necessary, in order to comply with Sections 424(a) and 409A of the Merger Event), and Counterparty shall deliver a copy Code; (iii) each outstanding Company Warrant will be assumed by Purchaser on the following basis: (A) the number of the supplemental indenture effecting such adjustments (a “Merger Supplemental Indenture”) as promptly as practicable following execution thereof. Consequences of Merger Events: Notwithstanding Section 12.2 of the Equity Definitions and without limitation of “Adjustment to Cap Price” below, upon the occurrence of a Merger Event, the Calculation Agent shall make the corresponding adjustment to the adjustment under the Indenture in respect of any adjustment under the Indenture to any one or more of the nature of the Shares, the Strike Price, the Number of Capped Note Hedging Units, the Capped Note Hedging Unit Entitlement, the Settlement Date and any other variable relevant to the exercise, settlement or payment or other terms of the Transaction (Resulting Issuer Common Shares subject to the provisions set forth under “Settlement Amount” above in respect Company Warrant will equal the number of any Counterparty Determination)Company Common Shares issuable upon exercise of the Company Warrant immediately prior to the Effective Time, multiplied by the Exchange Ratio; (B) the exercise price of each Company Warrant will equal the exercise price of the Company Warrant divided by the Exchange Ratio; (C) the other terms and conditions of the Company Warrant will remain unchanged and will continue to be governed by the applicable warrant certificate evidencing such Company Warrant; provided that such adjustment and (iv) each share of Subco common stock issued and outstanding immediately prior to the Effective Time shall be made without regard to any Fundamental Change Adjustment or any Discretionary Adjustment; converted into and provided further become one share of common stock of Mergeco such that the Calculation Agent may limit or alter any such adjustment referenced in this paragraph so that the fair value Mergeco shall be a wholly-owned subsidiary of the Transaction to Dealer is not reduced as a result of such adjustment; and provided further that if, with respect to a Merger Event, (i) the Resulting Issuer. As consideration for the Shares includes (or, at issuance of the option of a holder of Payment Shares, may include) shares (or depositary receipts with respect Mergeco shall issue Purchaser one share of Mergeco common stock for each Resulting Issuer Common Share issued to shares) of an entity or person that is not the Company Stockholders as a corporation organized under the laws part 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, Cancellation and Payment (Calculation Agent Determination) shall apply. Nationalization, Insolvency and 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 shall 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 such exchange or quotation system, such exchange or quotation system shall thereafter be deemed to be the ExchangeMerger.

Merger Events. Notwithstanding Section 12.1(b(a) Buyer shall have the right, upon becoming 12 aware of the Equity Definitions, except for purposes of “Announcement Event” and “Adjustments to Cap Price” below, a “Merger Event” means the occurrence of a “any Share-for-Share Merger Event” Event (as defined in below), to notify Seller that the Indenture). Notice number of Merger Consideration: In respect New Shares (as defined below) to which a holder of shares of the Common Stock that is the subject of any Transaction equal to each Base Amount with respect to such Transaction would be entitled upon consummation of the Share-for-Share Merger EventEvent will be deemed such "Base Amount" and the New Shares and their issuer will be deemed the "Common Stock" and the "Company" for such Transaction, Counterparty shall notify respectively, and that the Calculation Agent of (i) will make corresponding adjustments, if applicableany, the weighted average of the kind and amounts of consideration to be received by the holders of Shares in any Merger Event who affirmatively make such an election and (ii) the details of the adjustments made under the Indenture in respect of such Merger Event, in each case, immediately upon determination thereof (and in any event prior to the effective date of the Merger Event), and Counterparty shall deliver a copy of the supplemental indenture effecting such adjustments (a “Merger Supplemental Indenture”) as promptly as practicable following execution thereof. Consequences of Merger Events: Notwithstanding Section 12.2 of the Equity Definitions and without limitation of “Adjustment to Cap Price” below, upon the occurrence of a Merger Event, the Calculation Agent shall make the corresponding adjustment to the adjustment under the Indenture in respect of any adjustment under the Indenture to any one or more of the nature of the Shareseach Base Amount, each Settlement Ratio, the Strike Threshold Appreciation Price, the Number of Capped Note Hedging UnitsDownside Protection Threshold Price, the Capped Note Hedging Unit Entitlement, the Settlement Date any Closing Price and any other variable relevant to the exercise, settlement or payment or other terms of each such Transaction. Notwithstanding the Transaction (subject to the provisions set forth under “Settlement Amount” above in respect of any Counterparty Determination); provided that such adjustment shall be made without regard to any Fundamental Change Adjustment or any Discretionary Adjustment; and provided further that above, the Calculation Agent may limit or alter will determine if any such Merger Event adjustment referenced affects the theoretical value of any such Transaction, and if so, may in its sole discretion make an adjustment to any one or more of the Base Amount, the Settlement Ratio, the Threshold Appreciation Price, the Downside Protection Threshold Price, any Closing Price, and any other variable relevant to the exercise, settlement or payment terms of such Transaction to reflect the characteristics (including, without limitation, the volatility, dividend practice and policy and liquidity) of the New Shares. Any adjustment made pursuant to this paragraph so that the fair value will be effective as of the Transaction to Dealer is date determined by the Calculation Agent. (b) Buyer shall have the right, upon becoming aware of the occurrence of any Merger Event (as defined below) which does not reduced as constitute a result of such adjustment; and provided further that if, with respect to a Share-for-Share Merger Event, (i) to notify Seller of such event and terminate the consideration for the Shares includes (orrelevant Transaction Confirmation, at the option of following which Seller shall make a holder of Shares, may include) shares (or depositary receipts with respect payment to 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, Cancellation and Payment (Calculation Agent Determination) shall apply. Nationalization, Insolvency and Delisting: Cancellation and Payment (Calculation Agent Determination); Buyer as provided that in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it shall 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 such exchange or quotation system, such exchange or quotation system shall thereafter be deemed to be the Exchange7.04.

Merger Events. Notwithstanding Applicable; provided that notwithstanding Section 12.1(b) of the Equity Definitions, except for purposes of “Announcement Event” and “Adjustments to Cap Price” below, a “Merger Event” means the occurrence of a any event or condition set forth in the definition of “Merger Event” (as defined in Section 14.07(a) of the Indenture). Notice Tender Offers: Applicable; provided that notwithstanding Section 12.1(d) of Merger Consideration: In respect the Equity Definitions, a “Tender Offer” means the occurrence of any Merger Event, Counterparty shall notify the Calculation Agent of (ievent or condition set forth in Section 14.04(e) if applicable, the weighted average of the kind and amounts of consideration to be received by the holders of Shares in any Merger Event who affirmatively make such an election and (ii) the details of the adjustments made under the Indenture in respect of such Merger Event, in each case, immediately upon determination thereof (and in any event prior to the effective date of the Merger Event), and Counterparty shall deliver a copy of the supplemental indenture effecting such adjustments (a “Merger Supplemental Indenture”) as promptly as practicable following execution thereof. Consequences of Merger EventsEvents/ Tender Offers: Notwithstanding Section 12.2 and Section 12.3 of the Equity Definitions and without limitation of “Adjustment to Cap Price” belowDefinitions, upon the occurrence of a Merger EventEvent or a Tender Offer, the Calculation Agent shall make the a corresponding adjustment to the adjustment under the Indenture in respect of any adjustment under the Indenture to any one or more of the nature of the SharesShares (in the case of a Merger Event), the Strike Price, the Number of Capped Note Hedging UnitsOptions, the Capped Note Hedging Unit Entitlement, the Settlement Date Option Entitlement and any other variable relevant to the exercise, settlement or payment or other terms of for the Transaction (Transaction, subject to the provisions set forth second paragraph under “Settlement Amount” above in respect Method of any Counterparty Determination)Adjustment”; provided provided, however, that such adjustment shall be made without regard to any Fundamental Change Adjustment or adjustment to the Conversion Rate pursuant to any Discretionary AdjustmentExcluded 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 is not reduced 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 with respect to 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 not 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 Issuer following such Merger Event, Cancellation party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement and Payment (Calculation Agent Determinationto determine the amount payable pursuant to Section 6(e) shall apply. Nationalization, Insolvency and Delisting: Cancellation and Payment (Calculation Agent Determination)of the Agreement; provided that in addition 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 12.6(a)(iii12.3(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 also constitute 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 Equity Definitions or the Agreement. Section 12.3(d) of the Equity Definitions is hereby modified by (x) adding the words “whether within a Delisting if commercially reasonable (as determined by the Exchange is located Calculation Agent) period of time prior to or after the Announcement Event” after “Transaction)” in the United States sixth line thereof and (y) deleting the Shares are not immediately re-listed, re-traded or re-quoted text beginning “Cancellation ...” on any the 11th line thereof through the end of the New York Stock Exchangeparagraph and inserting “such 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, 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 such exchange or quotation system, such exchange or quotation system and Dealer shall thereafter be deemed to be the Exchangeparty 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, to which Article 12 of the Equity Definitions is applicable.

Merger Events. Notwithstanding Section 12.1(b) of the Equity Definitions, except for purposes of “Announcement Event” and “Adjustments to Cap Price” below, a “Merger Event” means shall have the occurrence same meaning as the meaning of a “Merger Common Stock Change Event” (as defined set forth in Section 13.07(a) of the Indenture). Notice of Merger Consideration: In respect of any Merger Event, Counterparty shall notify the Calculation Agent of (i) if applicable, the weighted average of the kind and amounts of consideration to be received by the holders of Shares in any Merger Event who affirmatively make such an election and (ii) the details of the adjustments made under the Indenture in respect of such Merger Event, in each case, immediately upon determination thereof (and in any event prior to the effective date of the Merger Event), and Counterparty shall deliver a copy of the supplemental indenture effecting such adjustments (a “Merger Supplemental Indenture”) as promptly as practicable following execution thereof. Consequences of Merger Events/Tender Offers: Notwithstanding Section 12.2 of the Equity Definitions and without limitation of “Adjustment to Cap Price” belowDefinitions, upon the occurrence of a Merger Event, the Calculation Agent Agent, acting in good faith and commercially reasonably, shall make the a corresponding adjustment to the adjustment under the Indenture in respect of any adjustment under the Indenture to any one or more of the nature of the Shares, the Strike PriceNumber of Options, the Number of Capped Note Hedging Units, the Capped Note Hedging Unit Option Entitlement, composition of the Settlement Date “Shares” hereunder and any other variable relevant to the exercise, settlement or payment or other terms for the Transaction, to the extent an analogous adjustment is required under Section 13.07 of the Transaction (subject to the provisions set forth under “Settlement Amount” above Indenture in respect of any Counterparty Determination)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 any Fundamental Change adjustment to the Conversion Rate pursuant to a Make-Whole Adjustment or any a Discretionary Adjustment; and provided further that in respect of any election by the holders of Shares with respect to the consideration due upon consummation of any Merger Event, the Calculation Agent may limit shall have the right to adjust any variable relevant to the exercise, settlement or alter any such adjustment referenced in this paragraph so that the fair value of payment for the Transaction as appropriate to compensate Dealer is not reduced as 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 result commercially reasonable Hedge Position, and the type and amount of consideration actually paid or issued to the holders of Shares in respect 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 with respect to 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 commercially reasonable discretion that Cancellation and Payment (Calculation Agent Determination) shall apply. NationalizationFor the avoidance of doubt, Insolvency and Delisting: Cancellation and Payment (Calculation Agent Determination); provided that in addition 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 12.6(a)(iii13.04(e) of the Equity Definitions, it shall 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 such exchange or quotation system, such exchange or quotation system shall thereafter be deemed to be the ExchangeIndenture.