Common use of Merger Events Clause in Contracts

Merger Events. 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 14.07 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 Events/ Tender Offers: Notwithstanding 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 terms of the Indenture to result in an adjustment to the terms 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 each case, to the 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 or payment for the Transaction, subject to the second paragraph under “Method of Adjustment” and (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 any adjustment to the “Conversion Rate” (as defined in the Indenture) pursuant to any Excluded Provision. Notwithstanding the foregoing, if, with respect to a Merger Event or a Tender Offer, (i) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is not a corporation or is not organized under the laws of the United States, any State thereof or the District of Columbia or (ii) the Counterparty to the Transaction following such Merger Event or Tender Offer will not be 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, (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 have a material adverse effect on Dealer’s rights or obligations hereunder, Dealer’s hedging activities, or the costs of engaging in any of the foregoing, then, in either case, Cancellation and Payment (Calculation Agent Determination) may apply at Dealer’s sole reasonable election; provided that Dealer shall consult 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. Applicable; provided that notwithstanding 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 14.07 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(e5.08(A) of the Indenture. Consequences of Merger Events/ Tender OffersEvents: Notwithstanding Section Sections 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 terms Calculation Agent determines by reference to Section 5.08(A) of the Indenture to would result in an adjustment to under the terms of the Convertible NotesIndenture, 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 each case, a commercially reasonable manner to the 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 terms relevant to the exercise, settlement settlement, payment or payment for other terms of the Transaction, subject to the second paragraph under “Method of AdjustmentDiscretionary Adjustments” and (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))above; 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 pursuant to Section 5.06 or 5.07 of the Indenture and (as defined ii) the election, if any, by Counterparty to adjust the Conversion Rate (in the Indenture) 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 Excluded Provision. Notwithstanding such adjustment referenced in this paragraph so that the foregoing, 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 or a Tender OfferEvent, (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, (2) whose obligations under the Transaction are fully and unconditionally guaranteed by Columbia or will not be the Issuer and (3) with respect to which the Calculation Agent determines following such Merger Event, Dealer may elect in its sole discretion that treating such wholly owned subsidiary as the Counterparty will not have a material adverse effect on Dealer’s rights or obligations hereunder, Dealer’s hedging activities, or the costs of engaging in any of the foregoing, then, in either case, Cancellation and Payment (Calculation Agent Determination) may apply at Dealer’s sole reasonable election; provided that Dealer shall consult 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 applicableapply.

Merger Events. 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 Merger Event” in Section 14.07 14.07(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 Events/ Tender Offers: Notwithstanding 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 terms of the Indenture to result in an adjustment to the terms of the Convertible NotesOffer, the Calculation Agent shall make (A) a corresponding adjustment 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), Strike Price, Number of Options and Options, Option Entitlement, in each case, to the 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 Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction, subject to the second paragraph under “Method of Adjustment” and (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”; provided, for the avoidance of doubthowever, 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 any adjustment to the “Conversion Rate” (as defined in the Indenture) Rate pursuant to any Excluded Provision. Notwithstanding the foregoing, ; provided further that if, with respect to a Merger Event or a Tender Offer, (i) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is not a corporation or is not organized under the laws of the United States, any State thereof or the District of Columbia or (ii) the Counterparty to the Transaction following such Merger Event or Tender Offer will not be 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, (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 have a material adverse effect on Dealer’s rights or obligations hereunder, Dealer’s hedging activities, or the costs of engaging in any of the foregoing, then, in either case, Cancellation such Merger Event or Tender Offer shall constitute an Additional Termination Event with respect to which the Transaction is the sole Affected Transaction and Payment (Calculation Agent Determination) may apply at Dealer’s Counterparty is the sole reasonable election; provided that Affected Party, and Dealer shall consult with Counterparty prior be the party entitled to declaring designate an Early Termination Date with respect pursuant to Section 6(b) of the Transaction unless Dealer reasonably determinesAgreement and to determine the amount payable pursuant to Section 6(e) of the Agreement; provided further that, 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 for the avoidance of doubt, adjustments shall be made pursuant to the foregoing provisions will apply 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, (wx) 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”, (xy) 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)”, (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 may determine whether the relevant Announcement Event has had a material an economic effect on the Transaction (and, if so, shall may adjust the Cap Price accordingly to account for such economic effectaccordingly) on one or more occasions on or after the date of such 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 any adjustment in respect of an Announcement Event hereunder shall not be without duplication in respect of duplicative with any other adjustment or cancellation valuation made pursuant to this Confirmation, the Equity Definitions or hereunderthe 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 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, to which Article 12 of the Equity Definitions is applicable.

Merger Events. Applicable; provided that notwithstanding 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 the definition of “Share Exchange Event” in Section 14.07 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(e14.07(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/ Tender OffersEvents: Notwithstanding 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 terms of the Indenture to result in an adjustment to the terms of the Convertible NotesEvent, the Calculation Agent shall make (A) a the corresponding adjustment in respect of any adjustment under the Indenture to any one or more of the nature of the Shares, the Strike Price, Number of Options and Option the Note Hedging Unit Entitlement, in each case, to the 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 Date and any other variable relevant to the exercise, settlement or payment for or other terms of the Transaction, Transaction (other than the Number of Note Hedging Units and subject to the second paragraph provisions set forth under “Method 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” ; 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 jurisdictions in this clause (2) would not have a material adverse effect on Dealer’s rights and obligations hereunder, Dealer’s hedging activities or the costs of 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 a Permitted Merger Jurisdiction or (B) will not be the Underlying Shares Issuer or a proportionate 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 Cap Price terms of the Transaction with respect to the extent any adjustment is made to the Strike Price such Merger Date, Tender Offer Date or Announcement Event pursuant to clause this Confirmation and/or the Equity Definitions shall take such earlier adjustment into account (A) above (which adjustmentand, for the avoidance of doubt, where Cancellation and Payment is applicable, the Determining Party shall not prohibit take into account such adjustment in determining the Calculation Agent from making any further adjustments to the Cap Price in accordance with, and subject in all respects to, Section 9(x)Cancellation Amount); provided further 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 any adjustment to the “Conversion Rate” (as defined in the Indenture) pursuant to any Excluded Provision. Notwithstanding the foregoing, if, with respect to a Merger Event or a Tender Offer, (i) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is not a corporation or is not organized under the laws of the United States, any State thereof or the District of Columbia or (ii) the Counterparty to the Transaction following such Merger Event or Tender Offer will not be 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, (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 have a material adverse effect on Dealer’s rights or obligations hereunder, Dealer’s hedging activities, or the costs of engaging in any of the foregoing, then, in either case, Cancellation and Payment (Calculation Agent Determination) may apply at Dealer’s sole reasonable election; provided that Dealer shall consult 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. Applicable; provided that notwithstanding Notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means shall have the occurrence of any event or condition set forth in same meaning as the definition meaning of “Share Exchange Common Stock Change Event” in Section 14.07 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(e13.07(a) of the Indenture. Consequences of Merger Events/ Events/Tender Offers: Notwithstanding 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 terms of the Indenture to result in an adjustment to the terms of the Convertible NotesEvent, the Calculation Agent Agent, acting in good faith and commercially reasonably, shall make (A) a corresponding adjustment in respect of any adjustment under the Indenture to any one or more of the nature of the Shares, Strike Price, the Number of Options and Options, the Option Entitlement, in each case, to composition of the 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 PriceShares” and “Settlement Averaging Period” in this Confirmation hereunder and any other variable relevant to the exercise, settlement or payment for the Transaction, subject to the second paragraph under “Method of Adjustment” and (B) a proportionate adjustment to the Cap Price to the extent any an analogous adjustment is made to required under Section 13.07 of the Strike Price pursuant to clause (A) above (which adjustmentIndenture in respect of such Merger Event, for the avoidance of doubt, shall not prohibit as determined in good faith and in a commercially reasonable manner by the Calculation Agent from making any further adjustments by reference to the Cap Price in accordance withsuch Section, and subject in all respects to, Section 9(x))to “Discretionary Adjustments” above; 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 any adjustment to the “Conversion Rate” (as defined in the Indenture) Rate pursuant to a Make-Whole Adjustment or a Discretionary Adjustment; provided further that in respect of any Excluded Provision. Notwithstanding election by the foregoingholders 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 such Merger Event; and provided further that if, with respect to a Merger Event or a Tender Offer, (i) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of securities issued by an entity or person that is not a corporation organized under the laws of the United States, any state thereof or is the District of Columbia or (ii) the Counterparty to the Transaction, 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 (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) Issuer, Dealer may elect in its commercially reasonable discretion that is a corporation organized under the laws of the United States, any State thereof or the District of 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 have a material adverse effect on Dealer’s rights or obligations hereunder, Dealer’s hedging activities, or the costs of engaging in any of the foregoing, then, in either case, Cancellation and Payment (Calculation Agent Determination) may apply at Dealer’s sole reasonable election; provided that Dealer shall consult 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 Transactionapply. For the avoidance of doubt, adjustments shall be made pursuant to the foregoing provisions will apply set forth above regardless of whether any Merger Event or Tender Offer gives rise to an Early Conversion. Consequences For purposes of Announcement Events: Modified Calculation Agent Adjustment as this paragraph, “Tender Offer” means the occurrence of any event or condition set forth in Section 12.3(d13.04(e) 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 applicableIndenture.

Merger Events. Applicable; provided that notwithstanding 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 “Share Exchange Event” Fundamental Change in Section 14.07 1.01 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 clause (1) of the definition of Fundamental Change in Section 14.04(e) 1.01 of the Indenture. Consequences Consequence of Merger Events/ Tender Offers: Notwithstanding 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 terms of the Indenture to result in an adjustment to the terms of the Convertible NotesOffer, the Calculation Agent shall make (A) a corresponding adjustment in respect of any adjustment under the Indenture to any one or more of the nature of the Shares, Strike Price, Number of Options and Options, the Option Entitlement, in each case, to the 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 Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction; provided, subject to the second paragraph under “Method of Adjustment” and (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 adjustmenthowever, 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 any adjustment to the “Conversion Rate” (Rate for the issuance of additional shares as defined set forth in Section 11.03 of the Indenture) pursuant to any Excluded Provision. Notwithstanding the foregoing, ; provided further that if, with respect to a Merger Event or a Tender Offer, (i) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is not a corporation or is not organized under the laws of the United States, any State thereof or the District of Columbia Columbia," Cancellation and Payment shall apply. Nationalization, Insolvency 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, (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 have a material adverse effect on Dealer’s rights or obligations hereunder, Dealer’s hedging activities, or the costs of engaging in any of the foregoing, then, in either case, Cancellation and Payment (Calculation Agent Delisting: Determination) may apply at Dealer’s sole reasonable election); provided that Dealer shall consult with Counterparty prior to declaring an Early Termination Date with respect that, in addition 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 provisions of 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(d12.6(a)(iii) of the Equity Definitions; provided that, it will also constitute a Delisting if the Exchange is located in respect of an Announcement Eventthe United States and the Shares are not immediately re-listed, (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 re-traded or re-quoted on any other terms of the Transaction (including, without limitationNew York Stock Exchange, the spreadAmerican Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors)” shall be replaced with ; if the phrase “Cap Price (provided that in no event shall Shares are immediately re-listed, re-traded or re-quoted on any of 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 doubtNew York Stock Exchange, the Calculation Agent American Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors), such exchange or quotation system shall determine whether thereafter be deemed to be 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 applicableExchange.

Merger Events. Applicable; provided that notwithstanding Notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means shall have the occurrence of any event or condition set forth in same meaning as the definition meaning of “Share Exchange Common Stock Change Event” in Section 14.07 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) [5.09(A)]42 of the Indenture. Consequences of Merger Events/ Events/Tender Offers: Notwithstanding 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 terms of the Indenture to result in an adjustment to the terms of the Convertible NotesEvent, the Calculation Agent Agent, acting in good faith and commercially reasonably, shall make (A) a corresponding adjustment in respect of any adjustment under the Indenture to any one or more of the nature of the Shares, Strike Price, the Number of Options and Options, the Option Entitlement, in each case, to composition of the 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 PriceShares” and “Settlement Averaging Period” in this Confirmation hereunder and any other variable relevant to the exercise, settlement or payment for the Transaction, subject to the second paragraph under “Method of Adjustment” and (B) a proportionate adjustment to the Cap Price to the extent any an analogous adjustment is made to required under Section [5.09]43 of the Strike Price pursuant to clause (A) above (which adjustmentIndenture in respect of such Merger Event, for the avoidance of doubt, shall not prohibit as determined in good faith and in a commercially reasonable manner by the Calculation Agent from making any further adjustments by reference to the Cap Price in accordance withsuch Section, and subject in all respects to, Section 9(x))to “Discretionary Adjustments” above; 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 any adjustment to the “Conversion Rate” (as defined Rate pursuant to a Make-Whole Adjustment or a 40 Include reference to provision of Indenture providing for adjustments to prices by board of directors in the Indenture) pursuant case of adjustment events that occur during an averaging period. 41 Include reference to any Excluded ProvisionCommon Stock Change Event provision. Notwithstanding the foregoing, if, with respect 42 Include cross reference to a Merger Event or a Tender Offer, (i) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is not a corporation or is not organized under the laws sections of the United States, any State thereof or Indenture setting forth the District list 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, (2) whose obligations under the Transaction are fully merger 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 have a material adverse effect on Dealer’s rights or obligations hereunder, Dealer’s hedging activities, or the costs of engaging in any of the foregoing, then, in either case, Cancellation and Payment (Calculation Agent Determination) may apply at Dealer’s sole reasonable election; provided that Dealer shall consult 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 applicablesimilar events.

Merger Events. 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 Merger Event” in Section 14.07 14.07(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 Consequence of Merger Events/ Tender Offers: Notwithstanding 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 terms of the Indenture to result in an adjustment to the terms of the Convertible NotesOffer, the Calculation Agent shall make (A) a corresponding adjustment in respect of any adjustment under the Indenture to any one or more of the nature of the Shares, Strike Price, Number of Options and the Option Entitlement, in each case, to the 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 Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction; provided, subject to the second paragraph under “Method of Adjustment” and (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 adjustmenthowever, 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 any adjustment to the “Conversion Rate” (Rate for the issuance of additional shares as defined set forth in Section 14.03 of the Indenture) pursuant to any Excluded Provision. Notwithstanding the foregoing, ; provided further that if, with respect to a Merger Event or a Tender Offer, (i) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is not a corporation or is not organized under the laws of the United States, any State thereof or the District of Columbia Columbia,” Cancellation and Payment may apply. Nationalization, Insolvency 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, (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 have a material adverse effect on Dealer’s rights or obligations hereunder, Dealer’s hedging activities, or the costs of engaging in any of the foregoing, then, in either case, Delisting: Cancellation and Payment (Calculation Agent Determination) may apply at Dealer’s sole reasonable election); provided that Dealer shall consult with Counterparty prior to declaring an Early Termination Date with respect that, in addition 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 provisions of 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(d12.6(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 thereafter be deemed to be the Exchange. Additional Disruption Events: Change in Law: Applicable; provided that, in respect of an Announcement Event, (wthat Section 12.9(a)(ii) 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.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. Applicable; provided that notwithstanding Notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means the occurrence of any event or condition set forth to which Section 5.10 of the Note Indenture applies. Notice of Merger Consideration: 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 in writing of the types 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 types and amounts of consideration actually received by such holders. Consequences for Merger Events: Share-for-Share: The Transaction will be adjusted in accordance with the Reference Notes as provided in the definition 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 “Share Exchange Event” the 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 14.07 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 OffersOffer: Applicable; provided that notwithstanding , subject to “Consequences of Tender Offers” below. 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(e5.06(a)(5) of the Note Indenture. Consequences of Merger Events/ Tender Offers: Notwithstanding 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 terms of the Indenture to result in an adjustment to the terms 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 each case, to the extent an analogous adjustment would The Transaction will 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 or payment for the Transaction, subject to the second paragraph under “Method of Adjustment” and (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 adjusted in accordance with, and subject with the Reference Notes as provided in all respects to, Section 9(x))the Note Indenture; 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 any discretionary adjustment to the “Conversion Rate” (as defined in Rate by Counterparty pursuant to Section 5.06(a)(10) of the Indenture) pursuant to any Excluded Provision. Notwithstanding the foregoingNationalization, if, with respect to a Merger Event or a Tender Offer, (i) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is not a corporation or is not organized under the laws of the United States, any State thereof or the District of Columbia or (ii) the Counterparty to the Transaction following such Merger Event or Tender Offer will not be 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, (2) whose obligations under the Transaction are fully Insolvency 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 have a material adverse effect on Dealer’s rights or obligations hereunder, Dealer’s hedging activities, or the costs of engaging in any of the foregoing, then, in either case, Delisting: Cancellation and Payment (Calculation Agent Determination) may apply at Dealer’s sole reasonable election; ), provided that Dealer Buyer shall consult have the right to elect in its sole discretion whether any Cancellation Amount shall be settled in cash or Shares in accordance with Counterparty prior to declaring an Early Termination Date with respect the provisions of this Confirmation under “Additional Agreements, Representations and Covenants of Buyer, Etc.” In addition 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 provisions of 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(d12.6(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, in respect that Section 12.9(a)(ii) of an Announcement Event, the Equity Definitions is hereby amended by (wi) 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) replacing the phrase “exercise, settlement, payment or any other terms of the Transaction (including, without limitation, interpretation” in the spread)” shall be replaced third line thereof with the phrase “Cap Price , or public announcement of, the formal or informal interpretation” and (provided that ii) by replacing the word “Shares” where it appears in no event shall the Cap Price be less than the Strike Price)”, clause (yX) thereof with 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 lineHedge Position”. The parties agree that, 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 Section 12.9(a)(ii) of the Equity Definitions, to which Article 12 “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 applicable.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