Nomura Global Financial Products Inc.

EXHIBIT 10.2

EXECUTION COPY

c/o Nomura Securities International, Inc.
Worldwide Plaza

000 Xxxx 00xx Xxxxxx

0xx Xxxxx
Xxx Xxxx, XX 00000

May 19, 2015


To:	Xxxxx Group, Inc. 000 Xxxxxxxxx Xxxxxx 00xx Xxxxx Xxx Xxxx, XX 00000 Facsimile No.: (000) 000-0000; (000) 000-0000 Attention: Xxxxxxx Xxxxxx, Chief Financial Officer Telephone No.: (000) 000-0000

Re: Additional Capped Call Option Transaction

The purpose of this letter agreement (this “Confirmation”) is to confirm the terms and conditions of the call option transaction entered into between Nomura Global Financial Products Inc. (“Nomura”) and Xxxxx Group, Inc. (“Counterparty”) as of the Trade Date specified below (the “Transaction”). This letter agreement constitutes a “Confirmation” as referred to in the ISDA Master Agreement specified below. This Confirmation shall replace any previous agreements and serve as the final documentation for the Transaction.

The definitions and provisions contained in the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”), as published by the International Swaps and Derivatives Association, Inc. (“ISDA”), are incorporated into this Confirmation. In the event of any inconsistency between the Equity Definitions and this Confirmation, this Confirmation shall govern. Certain defined terms used herein are based on terms that are defined in the Offering Memorandum dated May 13, 2015 (the “Offering Memorandum”) relating to the 105,000 shares of 5.625% Series A Cumulative Perpetual Convertible Preferred Stock (the “Convertible Preferred Shares” and each such share with USD 1,000 liquidation preference, a “Convertible Preferred Share”) issued by Counterparty (as increased by 15,750 shares pursuant to the exercise by the Initial Purchasers (as defined herein) of their option to purchase additional Convertible Preferred Shares pursuant to the Purchase Agreement (as defined herein)), the rights, preferences and privileges of which are set forth in a Certificate of Designation dated May 19, 2015 of the Counterparty (the “Certificate of Designation”). In the event of any inconsistency between the terms defined in the Offering Memorandum, the Certificate of Designation and this Confirmation, this Confirmation shall govern. The parties acknowledge that this Confirmation is entered into on the date hereof with the understanding that (i) definitions set forth in the Certificate of Designation which are also defined herein by reference to the Certificate of Designation and (ii) sections of the Certificate of Designation that are referred to herein will conform to the descriptions thereof in the Offering Memorandum. If any such definitions in the Certificate of Designation or any such sections of the Certificate of Designation differ from the descriptions thereof in the Offering Memorandum, the descriptions thereof in the Offering Memorandum will govern for purposes of this Confirmation. The parties further acknowledge that the Certificate of Designation section numbers used herein are based on the Certificate of Designation as executed. Subject to the foregoing, references to the Certificate of Designation herein are references to the Certificate of Designation as in effect on the date of its execution, and if the Certificate of Designation is amended or supplemented following such date (other than any amendment or supplement (x) pursuant to Section 4(g)(ii) of the Certificate of Designation that, as determined by the Calculation Agent, conforms the Certificate of Designation to the description of Convertible Preferred Shares in the Offering Memorandum or (y) pursuant to Section 8 of the Certificate of Designation, subject, in the case of this clause (y), to the second paragraph under “Method of Adjustment” in Section 3), any such amendment will be disregarded for purposes of this Confirmation unless the parties agree otherwise in writing.

Each party is hereby advised, and each such party acknowledges, that the other party has engaged in, or refrained from engaging in, substantial financial transactions and has taken other material actions in reliance upon the parties’ entry into the Transaction to which this Confirmation relates on the terms and conditions set forth below.

1.This Confirmation evidences a complete and binding agreement between Nomura and Counterparty as to the terms of the Transaction to which this Confirmation relates. This Confirmation shall supplement, form a part of, and be subject to an agreement in the form of the 2002 ISDA Master Agreement (the “Agreement”) as if Nomura and Counterparty had executed an agreement in such form (but without any Schedule except for the election of (i) the laws of the State of New York as the governing law (without reference to choice of law doctrine), (ii) Nomura Holdings, Inc. as a Credit Support Provider, and (iii) the Guarantee of Nomura Holdings, Inc. dated May 14, 2015 referencing this transaction as a Credit Support Document) on the Trade Date. In the event of any inconsistency between provisions of the Agreement and this Confirmation, this Confirmation will prevail for the purpose of the Transaction to which this Confirmation relates. The parties hereby agree that no transaction other than the Transaction to which this Confirmation relates shall be governed by the Agreement. The Transaction shall constitute a Share Option Transaction for purposes of the Equity Definitions.

2. The terms of the particular Transaction to which this Confirmation relates are as follows:

General Terms.


Trade Date:	May 19, 2015


Effective Date:	The third Exchange Business Day immediately prior to the Premium Payment Date


Option Style:	European, as described under “Procedures for Exercise” below


Option Type:	Call


Buyer:	Counterparty


Seller:	Nomura


Shares:	The Class A Common Stock of Counterparty, par value USD 0.01 per share (Exchange symbol “XXXX”).


Number of Options:	15,750. For the avoidance of doubt, the Number of Options shall be reduced by any Options exercised by Counterparty. In no event will the Number of Options be less than zero.


Option Entitlement:	152.2476.


Strike Price:	USD 6.5682


Cap Price:	USD 8.385


Premium:	USD 2,071,125


Premium Payment Date:	The Closing Date


Closing Date:	May 20, 2015


Exchange:	The NASDAQ Global Select Market


Related Exchange(s):	All Exchanges


Excluded Provisions:	Section 12 and Section 13(l) of the Certificate of Designation.

Procedures for Exercise.


Expiration Time:	The Valuation Time


Expiration Date:	May 20, 2020


Automatic Exercise:	Notwithstanding Section 3.4 of the Equity Definitions, a number of Options equal to the then-current Number of Options shall be deemed to be automatically exercised on the Expiration Date.

For the avoidance of doubt, in no event shall the number of Options that are exercised or deemed exercised hereunder exceed the Number of Options.


Valuation Time:	At the close of trading of the regular trading session on the Exchange; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in its reasonable discretion.


Market Disruption Event:	Section 6.3(a) of the Equity Definitions is hereby replaced in its entirety by the following:

“‘Market Disruption Event’ means, in respect of a Share, (i) a failure by the primary United States national or regional securities exchange or market on which the Shares are listed or admitted for trading to open for trading during its regular trading session or (ii) the occurrence or existence prior to 1:00 p.m. (New York City time) on any Scheduled Valid Day for the Shares for more than one half-hour period in the aggregate during regular trading hours of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant stock exchange or otherwise) in the Shares or in any options contracts or futures contracts relating to the Shares.”

Settlement Terms.

Settlement Method Election:

Applicable; provided that (i) Section 7.1 of the Equity Definitions shall be amended by (a) replacing the words “Cash Settlement or Physical Settlement” in the first sentence thereof with “Cash Settlement, Net Share Settlement or Combination Settlement” and (b) inserting the words “, and in the case of Combination Settlement, the Specified Dollar Amount that will apply to the Transaction” (x) at the end of the first sentence thereof and (y) immediately following the words “with respect to such Transaction” in the last sentence thereof and (ii) Counterparty may elect Cash Settlement or Combination Settlement only if Counterparty represents to Nomura in writing on the date of such election that (a) Counterparty is not in possession of any material non-public information regarding Counterparty or the Shares, (b) Counterparty is making such election in good faith and not as part of a plan or scheme to evade compliance with the federal securities laws and (c) (x) the assets of Counterparty at their fair valuation exceed the liabilities of Counterparty (including contingent liabilities), (y) the capital of Counterparty is adequate to conduct the business of Counterparty, and (z) Counterparty has the ability to pay

its debts and obligations as they mature and does not intend to, and does not believe that it will, incur debt beyond its ability to pay as such debts mature.


Electing Party:	Counterparty.


Settlement Method Election Date:	The Expiration Date.


Default Settlement Method:	Net Share Settlement.


Specified Dollar Amount:	In the case of Combination Settlement, an amount in USD, which shall be greater than USD 1,000, as specified by Counterparty to Nomura in writing no later than the Settlement Method Election Date.


Net Share Settlement:	If applicable, Nomura will deliver to Counterparty, on the Settlement Date, a number of Shares equal to the Net Share Settlement Amount in respect of any Option exercised or deemed exercised hereunder. In no event will the Net Share Settlement Amount be less than zero.


Net Share Settlement Amount:	In respect of any Option exercised or deemed exercised hereunder, a number of Shares equal to the sum of the Daily Net Share Settlement Amounts for each of the 50 consecutive Valid Days during the Settlement Averaging Period.


Daily Net Share Settlement Amount:	For each of the 50 consecutive Valid Days during the Settlement Averaging Period, a number of Shares equal to the quotient of (i) the Daily Option Value on such Valid Day, divided by (ii) the Relevant Price for such Valid Day.


Daily Option Value:	For each of the 50 Valid Days in the Settlement Averaging Period, 2% of the product of (i) the Option Entitlement and (ii) the Strike Price Differential on such Valid Day.


Strike Price Differential:	For each Valid Day in the Settlement Averaging Period, if the Relevant Price on such Valid Day is:

(i) greater than or equal to the Cap Price, the Cap Price less the Strike Price;

(ii) greater than the Strike Price and less than the Cap Price, the Relevant Price on such Valid Day less the Strike Price; or

(iii) less than or equal to the Strike Price, USD 0.00.


Combination Settlement:	If applicable, Nomura will pay or deliver, as the case may be, to Counterparty, on the Settlement Date, the amount of cash and number of Shares included in the Combination Settlement Amount in respect of any Option exercised or deemed exercised hereunder. In no event will such amount of cash or such number of Shares be less than zero.


Combination Settlement Amount:	In respect of any Option exercised or deemed exercised hereunder, an amount of cash equal to the aggregate amount

of cash, together with a number of Shares equal to the aggregate number of Shares, included in the Daily Combination Settlement Amounts for each of the 50 consecutive Valid Days during the Settlement Averaging Period.


Daily Combination Settlement Amount:	For each of the 50 consecutive Valid Days during the Settlement Averaging Period:

(i) an amount of cash equal to the lesser of (a) the Daily Option Measurement Value and (b) the Daily Option Value on such Valid Day; and

(ii) (a) if the Daily Option Value on such Valid Day exceeds the Daily Option Measurement Value, a number of Shares equal to (1) the difference between the Daily Option Value on such Valid Day and the Daily Option Measurement Value, divided by (2) the Relevant Price for such Valid Day, and (b) otherwise, zero Shares.


Daily Option Measurement Value:	(i) The excess of the Specified Dollar Amount over USD 1,000 divided by (ii) 50.

Fractional Shares:

If Combination Settlement or Net Share Settlement is applicable in respect of any Option exercised or deemed exercised hereunder, notwithstanding anything to the contrary herein, Nomura shall pay cash to Counterparty on the Settlement Date in lieu of delivering any fractional Shares that would otherwise be included in the Combination Settlement Amount or the Net Share Settlement Amount, as the case may be, in each case, valued at the Relevant Price on the last Valid Day of the Settlement Averaging Period.


Cash Settlement:	If applicable, in lieu of Section 8.1 of the Equity Definitions, Nomura will pay to Counterparty, on the Settlement Date, the Option Cash Settlement Amount in respect of any Option exercised or deemed exercised hereunder. In no event will the Option Cash Settlement Amount be less than zero.


Option Cash Settlement Amount:	In respect of any Option exercised or deemed exercised hereunder, an amount in cash equal to the sum of the Daily Option Values for each of the 50 consecutive Valid Days during the Settlement Averaging Period.

Valid Day:

A day on which (i) there is no Market Disruption Event and (ii) trading in the Shares generally occurs on the Exchange or, if the Shares are not then listed on the Exchange, on the principal other United States national or regional securities exchange on which the Shares are then listed or, if the Shares are not then listed on a United States national or regional securities exchange, on the principal other market on which the Shares are then listed or admitted for trading. If the Shares are not so listed or admitted for trading, “Valid Day” means a Business Day.


Scheduled Valid Day:	A day that is scheduled to be a Valid Day on the principal United States national or regional securities exchange or

market on which the Shares are listed or admitted for trading. If the Shares are not so listed or admitted for trading, “Scheduled Valid Day” means a Business Day.


Business Day:	Any day other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of New York is authorized or required by law or executive order to close or be closed.

Relevant Price:

On any Valid Day, the per Share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page XXXX <equity> AQR (or its equivalent successor if such page is not available) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Valid Day (or if such volume-weighted average price is unavailable at such time, the market value of one Share on such Valid Day, as determined by the Calculation Agent using, if practicable, a volume-weighted average method). The Relevant Price will be determined without regard to after hours trading or any other trading outside of the regular trading session trading hours.


Settlement Averaging Period:	For any Option exercised or deemed exercised hereunder, the 50 consecutive Valid Days commencing on, and including, the third Valid Day immediately following May 20, 2020.


Settlement Date:	For any Option exercised or deemed exercised hereunder, the third Business Day immediately following the final Valid Day of the Settlement Averaging Period for such Option.


Settlement Currency:	USD


Other Applicable Provisions:	The provisions of Sections 9.1(c), 9.8, 9.9 and 9.11 of the Equity Definitions will be applicable, except that all references in such provisions to “Physically-settled” shall be read as references to “Share Settled”. “Share Settled” in relation to any Option exercised or deemed exercised hereunder means that Net Share Settlement or Combination Settlement is applicable to that Option.


Representation and Agreement:	Notwithstanding anything to the contrary in the Equity Definitions (including, but not limited to, Section 9.11 thereof), the parties acknowledge that any Shares delivered to Counterparty shall be, upon delivery, subject to restrictions and limitations arising from Counterparty’s status as issuer of the Shares under applicable securities laws.

3. Additional Terms applicable to the Transaction.

Adjustments applicable to the Transaction:


Potential Adjustment Events:	Other than for purposes of Section 9(w), notwithstanding Section 11.2(e) of the Equity Definitions, a “Potential Adjustment Event” means an occurrence of any event or condition, as set forth in any Dilution Adjustment Provision,

that would result in an adjustment under the Certificate of Designation to the “Conversion Rate” or the composition of a “unit of Reference Property” or to any “Last Reported Sale Price,” “Daily VWAP,” “Daily Conversion Value” or “Daily Settlement Amount” (each as defined in the Certificate of Designation). For the avoidance of doubt, Nomura shall not have any delivery or payment obligation hereunder, and no adjustment shall be made to the terms of the Transaction, on account of (x) any distribution of cash, property or securities by Counterparty to holders of the Convertible Preferred Shares (upon conversion or otherwise) or (y) any other transaction in which holders of the Convertible Preferred Shares are entitled to participate, in each case, in lieu of an adjustment under the Certificate of Designation of the type referred to in the immediately preceding sentence (including, without limitation, pursuant to the fourth sentence of Section 13(c) of the Certificate of Designation or the last sentence of Section 13(d) of the Certificate of Designation).

Method of Adjustment:

Calculation Agent Adjustment, which means that, notwithstanding Section 11.2(c) of the Equity Definitions, upon any Potential Adjustment Event, the Calculation Agent shall make a corresponding adjustment to any one or more of the Strike Price, Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction; provided that, if any Potential Adjustment Event occurs during any “Observation Period” (as defined in the Certificate of Designation) but no adjustment was made to any Convertible Preferred Share under the Certificate of Designation because the holder thereof was deemed to be a record owner of the underlying Shares on the related “Conversion Date” (as defined in the Certificate of Designation), then the Calculation Agent shall make an adjustment, as determined by it, to the terms hereof in order to account for such Potential Adjustment Event.

Notwithstanding the foregoing and “Consequences of Merger Events/Tender Offers” below, if the Calculation Agent in good faith disagrees with any adjustment to the Convertible Preferred Shares that involves an exercise of discretion by Counterparty or its board of directors (including, without limitation, pursuant to Section 13(k) of the Certificate of Designation, Section 8 of the Certificate of Designation or any amendment to the Certificate of Designation entered into thereunder or in connection with any proportional adjustment or the determination of the fair value of any securities, property, rights or other assets), then in each such case, the Calculation Agent will determine the adjustment to be made to any one or more of the Strike Price, Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction in a commercially reasonable manner.


Dilution Adjustment Provisions:	Section 13(a), (b), (c), (d), (e) and (k) of the Certificate of Designation.

Extraordinary Events applicable to the Transaction:


Merger Events:	Applicable; provided that, other than for purposes of “Announcement Event”, “Announcement Date” and Section 9(w) below, notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means any Share Exchange Transaction (as defined in the Certificate of Designation).


Tender Offers:	Applicable; provided that, other than for purposes of “Announcement Event”, “Announcement Date” and Section 9(w) 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 13(e) of the Certificate of Designation.

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, the Calculation Agent shall make a corresponding adjustment in respect of any adjustment under the Certificate of Designation to any one or more of the nature of the Shares (in the case of a Merger Event), Strike Price, Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction, subject to the second paragraph under “Method of Adjustment”;

provided, however, that such adjustment shall be made without regard to any adjustment to the “Conversion Rate” (as defined in the Certificate of Designation) pursuant to any Excluded Provision;

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 organized under the law of the United States or any State thereof, then Cancellation and Payment (Calculation Agent Determination) may apply at Nomura’s sole election; and

provided further that, for the avoidance of doubt, adjustments shall be made pursuant to the provisions set forth above regardless of whether any Merger Event or Tender Offer gives rise to an Early Conversion Date (as defined below).

Announcement Event:

If an Announcement Date occurs in respect of a Merger Event (for the avoidance of doubt, determined without regard to the language in the definition of “Merger Event” following the definition of “Reverse Merger” therein) or Tender Offer or public announcement is made by any entity in respect of any potential acquisition by Counterparty and/or its subsidiaries where the aggregate consideration exceeds 15% of the market capitalization of Counterparty as of the date of such announcement (such occurrence, an “Announcement Event”), then on the earliest to occur of the last Valid Day of the Settlement Averaging Period, an Early Termination Date or any other date of cancellation (the “Announcement Event Adjustment Date”) in respect of the Transaction, the Calculation Agent will determine the economic effect on the Transaction of the relevant event (regardless of whether the Announcement Event actually results in a Merger Event or Tender Offer, and taking into account such factors as the Calculation Agent may determine, including, without limitation, changes in volatility, expected dividends or liquidity relevant to the Shares or the Transaction whether prior to or after the Announcement Event or for any period of time, including, without limitation, the period from the Announcement Event to the relevant Announcement Event Adjustment Date). If the Calculation Agent determines that such economic effect on the Transaction is material, then on the Announcement Event Adjustment Date, the Calculation Agent may make such adjustment to the Cap Price as the Calculation Agent determines appropriate to account for such economic effect, which adjustment shall be effective immediately prior to the settlement, termination or cancellation of the Transaction, as the case may be; provided that in no event shall the Cap Price be less than the Strike Price.

Announcement Date:

The definition of “Announcement Date” in Section 12.1 of the Equity Definitions is hereby amended by (i) replacing the words “a firm” with the word “any” in the second and fourth lines thereof, (ii) replacing the word “leads to the” with the words “, if completed, would lead to a” in the third and the fifth lines thereof, (iii) replacing the words “voting shares” with the word “Shares” in the fifth line thereof, and (iv) inserting the words “by any entity” after the word “announcement” in the second and the fourth lines thereof.

Nationalization, Insolvency or Delisting:

Cancellation and Payment (Calculation Agent Determination); provided that, in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it will also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, 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 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:


(i)	Section 12.9(a)(v) of the Equity Definitions is hereby amended by (a) inserting the following words at the end of clause (A) thereof: “in the manner contemplated by the Hedging Party on the Trade Date” and (b) inserting the following two phrases at the end of such Section:

“For the avoidance of doubt, the term “equity price risk” shall be deemed to include, but shall not be limited to, stock price and volatility risk. And, for the further avoidance of doubt, any such transactions or assets referred to in phrases (A) or (B) above must be available on commercially reasonable pricing terms.”; and


(ii)	Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line thereof, after the words “to terminate the Transaction”, the words “or a portion of the Transaction affected by such Hedging Disruption”.


Increased Cost of Hedging:	Applicable


Hedging Party:	For all applicable Additional Disruption Events, Nomura.


Determining Party:	For all applicable Extraordinary Events, Nomura; provided that all determinations shall be made in good faith and in a commercially reasonable manner.


Non-Reliance:	Applicable.

Agreements and Acknowledgements
Regarding Hedging Activities: Applicable

Additional Acknowledgments: Applicable


4.	Calculation Agent. Nomura; provided that all calculations shall be made in good faith and in a commercially reasonable manner.

5. Account Details.


(a)	Account for payments to Counterparty:

Bank: Capital One Bank
Bank Add.: 000 Xxxxxxx Xxxxxx Xxx Xxxx, XX 00000

ABA#: 000-000-000

Acct No.: 7527921710

Beneficiary: Ramius LLC
Attn: Xxxxxxx Xxxxxxxx, (000) 000-0000

Ref: Call Spread

Account for delivery of Shares to Counterparty:

To be provided in writing by Counterparty.


(b)	Account for payments to Nomura:

Agent Bank Name: BOA FX TRADING

Agent BIC: BOFAUS3N

Account Name: BANK OF AMERICA NY NGFP

Account No/Ref: 6550361610

6. Offices.


(a)	The Office of Counterparty for the Transaction is: Inapplicable, Counterparty is not a Multibranch Party.


(b)	The Office of Nomura for the Transaction is: Inapplicable, Nomura is not a Multibranch Party.

7. Notices.


(a)	Address for notices or communications to Counterparty:

Xxxxx Group, Inc.
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile No.:    (000) 000-0000; (000) 000-0000
Attention:     Xxxxxxx Xxxxxx, Chief Financial Officer
Telephone No.:    (000) 000-0000
Email:        xxxxxxx.xxxxxx@xxxxx.xxx

With a copy to:

Attention:     Xxxx Xxxxxxx, General Counsel
Telephone No.:    (000) 000-0000
Email:        xxxx.xxxxxxx@xxxxx.xxx


(b)	Address for notices or communications to Nomura:

Nomura Global Financial Products Inc.

c/o Nomura Securities International, Inc.

Worldwide Plaza

000 Xxxx 00xx Xxxxxx

0xx Xxxxx

Xxx Xxxx, XX 00000
Attention: Equity Derivatives Operations
Telephone No.: (000) 000-0000

Facsimile No.: (000) 000-0000
Email: XXXXXXxx@xx.xxxxxx.xxx

With copies to:

Attention:     Xxxxxxx Xxxx
Title:         Managing Director, Head of Equity Structuring/Equity Capital                 Markets, Americas
Telephone No.:     (000) 000-0000
Facsimile No.:     (000) 000-0000
Email:         xxxxxxx.xxxx@xxxxxx.xxx

Attention:     Xxxxx Xxxxxxx
Title:         Executive Director
Telephone No.:     (000) 000-0000
Facsimile No.:     (000) 000-0000
Email:         xxxxx.xxxxxxx@xxxxxx.xxx

8. Representations and Warranties of Counterparty.

Each of the representations and warranties of Counterparty set forth in Section 3 of the Purchase Agreement (the “Purchase Agreement”), dated as of May 13, 2015, between Counterparty and Nomura Securities International, Inc., as representative of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Nomura as if set forth herein. Counterparty hereby further represents and warrants to Nomura on the date hereof and on and as of the Premium Payment Date that:

(a)

Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.

(b)

Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by‑laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is bound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.


(c)	No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act of 1933, as amended (the “Securities Act”) or state securities laws.


(d)	Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.


(e)	Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).


(f)	Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.


(g)	[Reserved]

(h)

Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least $50 million.


(i)	Counterparty represents and warrants that it has received, read and understands the OTC Options Risk Disclosure Statement and a copy of the most recent disclosure pamphlet prepared by The Options Clearing Corporation entitled “Characteristics and Risks of Standardized Options,” which is available at xxxx://xxx.xxxxxxxxxxxxxxx.xxx/xxxxx/xxxxxxxxxxxx/xxxxxxxxx-xxxxx.xxx.


(j)	Prior to the Trade Date, Counterparty has delivered to Nomura a resolution of Counterparty’s board of directors authorizing the Transaction.

9. Other Provisions.

(a)

Opinion; Incumbency Certificate. Counterparty shall deliver to Nomura an incumbency certificate, dated as of the Closing Date, of Counterparty in customary form. Counterparty shall deliver to Nomura an opinion of counsel, dated as of the Closing Date, in a form reasonably satisfactory to Nomura. Delivery of such incumbency certificate and such opinion to Nomura shall be a condition precedent for the purpose of Section 2(a)(iii) of the Agreement with respect to each obligation of Nomura under Section 2(a)(i) of the Agreement.

(b)

Repurchase Notices. Counterparty shall, on any day on which Counterparty effects any repurchase of Shares, promptly give Nomura a written notice of such repurchase (a “Repurchase Notice”) on such day if following such repurchase, the number of outstanding Shares as determined on such day is (i) less than 109.526 million (in the case of the first such notice) or (ii) thereafter more than 1.277 million less than the number of Shares included in the immediately preceding Repurchase Notice. Counterparty agrees to indemnify and hold harmless Nomura and its affiliates and their respective officers, directors, employees, affiliates, advisors, agents and controlling persons (each, an “Indemnified Person”) from and against any and all losses (including losses relating to Nomura’s hedging activities as a consequence of becoming, or of the risk of becoming, a Section 16 “insider”, including without limitation, any forbearance from hedging activities or cessation of hedging activities and any losses in connection therewith with respect to the Transaction), claims, damages, judgments, liabilities and expenses (including reasonable attorney’s fees), joint or several, which an Indemnified Person may become subject to, as a result of Counterparty’s failure to provide Nomura with a Repurchase Notice on the day and in the manner specified in this paragraph, and to reimburse, within 30 days, upon written request, each of such Indemnified Persons for any reasonable legal or other expenses incurred in connection with investigating, preparing for, providing testimony or other evidence in connection with or defending any of the foregoing. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against the Indemnified Person as a result of Counterparty’s failure to provide Nomura with a Repurchase Notice in accordance with this paragraph, such Indemnified Person shall promptly notify Counterparty in writing, and Counterparty, upon request of the Indemnified Person, shall retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and any others Counterparty may designate in such proceeding and shall pay the fees and expenses of such counsel related to such proceeding. Counterparty shall not be liable for any settlement of any

proceeding contemplated by this paragraph that is effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, Counterparty agrees to indemnify any Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Counterparty shall not, without the prior written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding contemplated by this paragraph that is in respect of which any Indemnified Person is or could have been a party and indemnity could have been sought hereunder by such Indemnified Person, unless such settlement includes an unconditional release of such Indemnified Person from all liability on claims that are the subject matter of such proceeding on terms reasonably satisfactory to such Indemnified Person. If the indemnification provided for in this paragraph is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then Counterparty hereunder, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities. The remedies provided for in this paragraph (b) are not exclusive and shall not limit any rights or remedies which may otherwise be available to any Indemnified Person at law or in equity. The indemnity and contribution agreements contained in this paragraph shall remain operative and in full force and effect regardless of the termination of the Transaction.

(c)

Regulation M. Counterparty is not on the Trade Date engaged in a distribution, as such term is used in Regulation M under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of any securities of Counterparty, other than a distribution meeting the requirements of the exception set forth in Rules 101(b)(10) and 102(b)(7) of Regulation M. Counterparty shall not, until the second Scheduled Trading Day immediately following the Effective Date, engage in any such distribution.


(d)	No Manipulation. Counterparty is not entering into the Transaction to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for the Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for the Shares) or otherwise in violation of the Exchange Act.


(e)	Transfer or Assignment.


(i)	Counterparty shall have the right to transfer or assign its rights and obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Nomura may impose, including but not limited, to the following conditions:


(A)	With respect to any Transfer Options, Counterparty shall not be released from its notice and indemnification obligations pursuant to Section 9(b) or any obligations under Section 9(l) or 9(p) of this Confirmation;


(B)	Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended);

(C)

Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Nomura, will not expose Nomura to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Nomura;


(D)	Nomura will not, as a result of such transfer and assignment, be required to pay the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than an amount that Nomura would have been required to pay to Counterparty in the absence of such transfer and assignment;


(E)	An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;


(F)	Without limiting the generality of clause (B), Counterparty shall cause the transferee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Nomura to permit Nomura to determine that results described in clauses (D) and (E) will not occur upon or after such transfer and assignment;


(G)	Counterparty shall be responsible for all reasonable costs and expenses, including reasonable counsel fees, incurred by Nomura in connection with such transfer or assignment; and


(H)	Nomura shall have completed its customary on-boarding process with respect to the transferee (including satisfaction of all know-your-customer and anti-money laundering requirements, and other customary account opening processes).

(ii)

Nomura may, without Counterparty’s consent, but upon prior written notice, transfer or assign all or any part of its rights or obligations under the Transaction (A) to any affiliate of Nomura (1) that has a rating for its long term, unsecured and unsubordinated indebtedness that is equal to or better than Nomura’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Nomura generally for similar transactions, by Nomura or Nomura Holdings Inc. or (B) to any other third party with a rating for its long term, unsecured and unsubordinated indebtedness equal to or better than the lesser of (1) the credit rating of Nomura at the time of the transfer and (2) A- by Standard and Poor’s Rating Group, Inc. or its successor (“S&P”), A- by Fitch Ratings Inc. or its successor (“Fitch”) or A3 by Xxxxx’x Investor Service, Inc. or its successor (“Moody’s”) or, if any of S&P, Fitch or Moody’s ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Nomura; provided that (i) under the applicable law effective on the date of such transfer or assignment, Counterparty will not receive a payment that is less than the payment Counterparty would have received in the absence of such transfer or assignment on account of any deduction or withholding under Section 2(d)(i) of the Agreement and (ii) no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer or assignment. If at any time at which (A) the Section 16 Percentage exceeds 4.5%, or (B) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clause (A) or (B), an “Excess Ownership Position”), Nomura is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party on pricing terms reasonably acceptable to Nomura and within a time period reasonably acceptable to Nomura such that no Excess Ownership Position exists, then Nomura may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated Portion”), such that following such partial termination no Excess Ownership Position exists. In the event that Nomura so designates an Early Termination Date with respect to a portion of the Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Options underlying the Terminated Portion, (2) Counterparty were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 9(j) shall apply to any amount that is payable by Nomura to Counterparty pursuant to this sentence as if Counterparty was not the Affected Party). The “Section 16 Percentage” as of any day is the fraction, expressed as a percentage, as determined by Nomura, (A) the numerator of which is the number of Shares that Nomura and each person subject to aggregation of Shares with Nomura under Section 13 or Section 16 of the Exchange Act and rules promulgated thereunder directly or indirectly beneficially own (as defined under Section 13 or Section

16 of the Exchange Act and rules promulgated thereunder) and (B) the denominator of which is the number of Shares outstanding. The “Share Amount” as of any day is the number of Shares that Nomura and any person whose ownership position would be aggregated with that of Nomura (Nomura or any such person, a “Nomura Person”) under any law, rule, regulation, regulatory order or organizational documents or contracts of Counterparty that are, in each case, applicable to ownership of Shares (“Applicable Restrictions”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership under any Applicable Restriction, as determined by Nomura in its sole discretion. The “Applicable Share Limit” means a number of Shares equal to (A) the minimum number of Shares that could give rise to reporting or registration obligations or other requirements (including obtaining prior approval from any person or entity) of a Nomura Person, or could result in an adverse effect on a Nomura Person, under any Applicable Restriction, as determined by Nomura in its sole discretion, minus (B) 1% of the number of Shares outstanding. Nomura will use its commercially reasonable efforts to promptly so notify Counterparty if the Section 16 Percentage exceeds 4.0%.

(iii)

Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing Nomura to purchase, sell, receive or deliver any Shares or other securities, or make or receive any payment in cash, to or from Counterparty, Nomura may designate any of its affiliates to purchase, sell, receive or deliver such Shares or other securities, or to make or receive such payment in cash, and otherwise to perform Nomura’s obligations in respect of the Transaction and any such designee may assume such obligations. Nomura shall be discharged of its obligations to Counterparty to the extent of any such performance.

(f)

Staggered Settlement. If Net Share Settlement or Combination Settlement applies to an exercise of Options hereunder and, with respect to applicable legal and regulatory requirements, including any requirements relating to Nomura’s hedging activities hereunder, Nomura reasonably determines that it would not be practicable or advisable to deliver, or to acquire Shares to deliver, any or all of the Shares to be delivered by Nomura on the Settlement Date, Nomura may, by notice to Counterparty on or prior to the Settlement Date (the “Nominal Settlement Date”), elect to deliver the Shares on two or more dates (each, a “Staggered Settlement Date”) as follows:


(i)	in such notice, Nomura will specify to Counterparty the related Staggered Settlement Dates (the first of which will be the Nominal Settlement Date and the last of which will be no later than the twentieth (20^th) Exchange Business Day following the Nominal Settlement Date) and the number of Shares that it will deliver on each Staggered Settlement Date;


(ii)	the aggregate number of Shares that Nomura will deliver to Counterparty hereunder on all such Staggered Settlement Dates will equal the number of Shares that Nomura would otherwise be required to deliver on the Nominal Settlement Date; and


(iii)	the provisions in Section 2 hereof relating to Net Share Settlement or Combination Settlement, as the case may be, will apply on each Staggered Settlement Date, except that the Shares otherwise deliverable on the Nominal Settlement Date will be allocated among such Staggered Settlement Dates as specified by Nomura in the notice referred to in clause (i) above.


(g)	Additional Termination Events.

(i)

Counterparty shall notify Nomura in writing of (a) any “Conversion Date” (as defined in the Certificate of Designation), (x) in respect of which a “Notice of Conversion” (within the meaning of the Certificate of Designation) that is effective as to Counterparty has been delivered by the converting holder and (y) that occurs prior to the Expiration Date (an “Early Conversion Date”), and (b) the number of Convertible Preferred Shares so converted, no later than 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately following such Early Conversion Date (any such notice, an “Early Conversion Notice”).

Notwithstanding anything to the contrary in this Confirmation, the receipt by Nomura from Counterparty, within the applicable time period set forth in the immediately preceding sentence, of an Early Conversion Notice shall constitute an Additional Termination Event as provided in this Section 9(f)(i). Upon receipt of any such Early Conversion Notice, Nomura shall designate an Exchange Business Day following such Additional Termination Event as an Early Termination Date with respect to the portion of this Transaction corresponding to a number of Options (the “Early Conversion Options”) equal to the lesser of (A) the number of Convertible Preferred Shares specified in such Early Conversion Notice less the number of “Early Conversion Options” (as defined in the letter agreement re: Base Capped Call Option Transaction, between the parties hereto, dated May 13, 2015 (the “Base Capped Call Option Confirmation”), if any, that relate to such Early Conversion Notice and (B) the Number of Options as of the date Nomura designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Early Conversion Options. Any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to this Transaction and a Number of Options equal to the number of Early Conversion Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (3) the terminated portion of the Transaction were the sole Affected Transaction (and, for the avoidance of doubt, in determining the amount payable pursuant to Section 6 of the Agreement, the Calculation Agent shall not take into account any adjustments to the Option Entitlement that result from corresponding adjustments to the “Conversion Rate” (as defined in the Certificate of Designation) pursuant to Section 12 of the Certificate of Designation).

(ii)

Promptly following any repurchase and cancellation of Convertible Preferred Shares, Counterparty shall notify Nomura in writing of such repurchase and cancellation and the number of Convertible Preferred Shares so repurchased and cancelled (any such notice, a “Repurchase Notice”). Notwithstanding anything to the contrary in this Confirmation, the receipt by Nomura from Counterparty of any Repurchase Notice, within the applicable time period set forth in the preceding sentence, shall constitute an Additional Termination Event as provided in this Section 9(g)(ii). Upon receipt of any such Repurchase Notice, Nomura shall designate an Exchange Business Day following receipt of such Repurchase Notice as an Early Termination Date with respect to the portion of this Transaction corresponding to a number of Options (the “Repurchase Options”) equal to the lesser of (A) the number of such Convertible Preferred Shares specified in such Repurchase Notice less the number of “Repurchase Options” (as defined in the Base Capped Call Option Confirmation), if any, that relate to such Repurchase Notice and (B) the Number of Options as of the date Nomura designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repurchase Options. Any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to this Transaction and a Number of Options equal to the number of Repurchase Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (3) the terminated portion of the Transaction were the sole Affected Transaction.


(h)	Amendments to Equity Definitions.

(i)

Section 12.6(a)(ii) of the Equity Definitions is hereby amended by (1) deleting from the fourth line thereof the word “or” after the word “official” and inserting a comma therefor, and (2) deleting the semi-colon at the end of subsection (B) thereof and inserting the following words therefor “or (C) the occurrence of any of the events specified in Section 5(a)(vii)(1) through (9) of the ISDA Master Agreement with respect to that Issuer.”


(ii)	Section 12.9(b)(i) of the Equity Definitions is hereby amended by (1) replacing “either party may elect” with “Nomura may elect” and (2) replacing “notice to the other party” with “notice to Counterparty” in the first sentence of such section.

(i)

Setoff. In addition to and without limiting any rights of set-off that a party hereto may have as a matter of law, pursuant to contract or otherwise, upon the occurrence of an Early Termination Date, Nomura (and only Nomura) shall have the right to set off any obligation that it may have to Counterparty under this Confirmation, including without limitation any obligation to make any payment of cash or delivery of Shares or other property or securities, against any obligation Counterparty may have to Nomura under any other agreement between Nomura and Counterparty that does not convey to Nomura rights, or the ability to assert claims, that are senior to the rights and claims of common stockholders in the event of Counterparty’s bankruptcy (each such contract or agreement, a “Separate Agreement”), including without limitation any obligation to make a payment of cash or a delivery of Shares or any other property or securities. For this purpose, Nomura shall be entitled to convert any obligation (or the relevant portion of such obligation) denominated in one currency into another currency at the rate of exchange at which it would be able to purchase the relevant amount of such currency, and to convert any obligation to deliver any non-cash property into an obligation to deliver cash in an amount calculated by reference to the market value of such property as of the Early Termination Date, as determined by the Calculation Agent in its sole discretion; provided that in the case of a set-off of any obligation to release or deliver assets against any right to receive fungible assets, such obligation and right shall be set off in kind and; provided further that in determining the value of any obligation to deliver any Shares or other property or securities, the value at any time of such obligation shall be determined by reference to the market value of such Shares or other property or securities at such time, as determined in good faith by the Calculation Agent. If an obligation is unascertained at the time of any such set-off, the Calculation Agent may in good faith estimate the amount or value of such obligation, in which case set-off will be effected in respect of that estimate, and the relevant party shall account to the other party at the time such obligation or right is ascertained.

(j)

Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events. If (a) an Early Termination Date (whether as a result of an Event of Default or a Termination Event) occurs or is designated with respect to the Transaction or (b) the Transaction is cancelled or terminated upon the occurrence of an Extraordinary Event (except as a result of (i) a Nationalization, Insolvency or Merger Event in which the consideration to be paid to holders of Shares consists solely of cash, (ii) a Merger Event or Tender Offer that is within Counterparty’s control, or (iii) an Event of Default in which Counterparty is the Defaulting Party or a Termination Event in which Counterparty is the Affected Party other than an Event of Default of the type described in Section 5(a)(iii), (v), (vi), (vii) or (viii) of the Agreement or a Termination Event of the type described in Section 5(b) of the Agreement, in each case that resulted from an event or events outside Counterparty’s control), and if Nomura would owe any amount to Counterparty pursuant to Section 6(d)(ii) of the Agreement or any Cancellation Amount pursuant to Article 12 of the Equity Definitions (any such amount, a “Payment Obligation”), then Nomura shall satisfy the Payment Obligation by the Share Termination Alternative (as defined below), unless (x) Counterparty gives irrevocable telephonic notice to Nomura, confirmed in writing within one Scheduled Trading Day, no later than 12:00 p.m. (New York City time) on the Merger Date, Tender Offer Date, Announcement Date (in the case of a Nationalization, Insolvency or Delisting), Early Termination Date or date of cancellation, as applicable, of its election that the Share Termination Alternative (as defined below) shall not apply, and (y) Counterparty remakes the representation set forth in Section 8(f) as of the date of such election, in which case the provisions of Section 12.7 or Section 12.9 of the Equity Definitions, or the provisions of Section 6(d)(ii) of the Agreement, as the case may be, shall apply.

Share Termination Alternative:

If applicable, Nomura shall deliver to Counterparty the Share Termination Delivery Property on, or within a commercially reasonable period of time after, the date when the relevant Payment Obligation would otherwise be due pursuant to Section 12.7 or 12.9 of the Equity Definitions or Section 6(d)(ii) and 6(e) of the Agreement, as applicable (the “Share Termination Payment Date”), in satisfaction of such Payment

Obligation in the manner reasonably requested by Counterparty free of payment.

Share Termination Delivery Property:

A number of Share Termination Delivery Units, as calculated by the Calculation Agent, equal to the Payment Obligation divided by the Share Termination Unit Price. The Calculation Agent shall adjust the Share Termination Delivery Property by replacing any fractional portion of a security therein with an amount of cash equal to the value of such fractional security based on the values used to calculate the Share Termination Unit Price.

Share Termination Unit Price:

The value to Nomura of property contained in one Share Termination Delivery Unit, as determined by the Calculation Agent in its discretion by commercially reasonable means and notified by the Calculation Agent to Nomura at the time of notification of the Payment Obligation. For the avoidance of doubt, the parties agree that in determining the Share Termination Delivery Unit Price the Calculation Agent may consider the purchase price paid in connection with the purchase of Share Termination Delivery Property.

Share Termination Delivery Unit:

One Share or, if the Shares have changed into cash or any other property or the right to receive cash or any other property as the result of a Nationalization, Insolvency or Merger Event (any such cash or other property, the “Exchange Property”), a unit consisting of the type and amount of such Exchange Property received by a holder of one Share (without consideration of any requirement to pay cash or other consideration in lieu of fractional amounts of any securities) in such Nationalization, Insolvency or Merger Event, as determined by the Calculation Agent.


Failure to Deliver:	Applicable

Other applicable provisions:

If Share Termination Alternative is applicable, the provisions of Sections 9.8, 9.9 and 9.11 (as modified above) of the Equity Definitions and the provisions set forth opposite the caption “Representation and Agreement” in Section 2 will be applicable, except that all references in such provisions to “Physically-settled” shall be read as references to “Share Termination Settled” and all references to “Shares” shall be read as references to “Share Termination Delivery Units”. “Share Termination Settled” in relation to the Transaction means that the Share Termination Alternative is applicable to the Transaction.

(k)

Waiver of Jury Trial. Each party waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding relating to the Transaction. Each party (i) certifies that no representative, agent or attorney of either party has represented, expressly or otherwise, that such other party would not, in the event of such a suit, action or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other party have been

induced to enter into the Transaction, as applicable, by, among other things, the mutual waivers and certifications provided herein.

(l)

Registration. Counterparty hereby agrees that if, in the good faith reasonable judgment of Nomura, the Shares (“Hedge Shares”) acquired by Nomura for the purpose of hedging its obligations pursuant to the Transaction cannot be sold in the public market by Nomura without registration under the Securities Act, Counterparty shall, at its election, either (i) in order to allow Nomura to sell the Hedge Shares in a registered offering, make available to Nomura an effective registration statement under the Securities Act and enter into an agreement, in form and substance satisfactory to Nomura, substantially in the form of an underwriting agreement for a registered secondary offering; provided, however, that if Nomura, in its sole reasonable discretion, is not satisfied with access to due diligence materials, the results of its due diligence investigation, or the procedures and documentation for the registered offering referred to above, then clause (ii) or clause (iii) of this paragraph shall apply at the election of Counterparty, (ii) in order to allow Nomura to sell the Hedge Shares in a private placement, enter into a private placement agreement substantially similar to private placement purchase agreements customary for private placements of equity securities, in form and substance satisfactory to Nomura (in which case, the Calculation Agent shall make any adjustments to the terms of the Transaction that are necessary, in its reasonable judgment, to compensate Nomura for any discount from the public market price of the Shares incurred on the sale of Hedge Shares in a private placement), or (iii) purchase the Hedge Shares from Nomura at the Relevant Price on such Exchange Business Days, and in the amounts, requested by Nomura.

(m)

Tax Disclosure. Effective from the date of commencement of discussions concerning the Transaction, Counterparty and each of its employees, representatives, or other agents may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all materials of any kind (including opinions or other tax analyses) that are provided to Counterparty relating to such tax treatment and tax structure.

(n)

Right to Extend. Nomura may postpone or add, in whole or in part, any Valid Day or Valid Days during the Settlement Averaging Period or any other date of valuation, payment or delivery by Nomura, with respect to some or all of the Options hereunder, if Nomura determines, in its commercially reasonable discretion, that such action is reasonably necessary or appropriate to preserve Nomura’s hedging or hedge unwind activity hereunder in light of existing liquidity conditions or to enable Nomura to effect transactions in Shares in connection with its hedging, hedge unwind or settlement activity hereunder in a manner that is, and, if Nomura were Counterparty or an affiliated purchaser of Counterparty, would be, in compliance with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to Nomura.

(o)

Securities Contract; Swap Agreement. The parties hereto intend for (i) the Transaction to be a “securities contract” and a “swap agreement” as defined in the Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”), and the parties hereto to be entitled to the protections afforded by, among other Sections, Sections 362(b)(6), 362(b)(17), 546(e), 546(g), 555 and 560 of the Bankruptcy Code, (ii) a party’s right to liquidate the Transaction and to exercise any other remedies upon the occurrence of any Event of Default under the Agreement with respect to the other party to constitute a “contractual right” as described in the Bankruptcy Code, and (iii) each payment and delivery of cash, securities or other property hereunder to constitute a “margin payment” or “settlement payment” and a “transfer” as defined in the Bankruptcy Code.


(p)	Notice of Certain Other Events. Counterparty covenants and agrees that:

(i)

promptly following the public announcement of the results of any election by the holders of Shares with respect to the consideration due upon consummation of any Merger Event, Counterparty shall give Nomura written notice of (x) the weighted average of the types and amounts of consideration received by the holders of Shares that affirmatively make such an election or (y) if no holders of Shares affirmatively make such an election, the types and amounts of consideration actually received by holders of Shares (the date of such notification,

the “Consideration Notification Date”); provided that in no event shall the Consideration Notification Date be later than the date on which such Merger Event is consummated; and


(ii)	promptly following any adjustment to the Convertible Preferred Shares in connection with any Potential Adjustment Event, Merger Event or Tender Offer, Counterparty shall give Nomura written notice of the details of such adjustment.

(q)

Wall Street Transparency and Accountability Act. In connection with Section 739 of the Wall Street Transparency and Accountability Act of 2010 (“WSTAA”), the parties hereby agree that neither the enactment of WSTAA or any regulation under the WSTAA, nor any requirement under WSTAA or an amendment made by WSTAA, shall limit or otherwise impair either party’s otherwise applicable rights to terminate, renegotiate, modify, amend or supplement this Confirmation or the Agreement, as applicable, arising from a termination event, force majeure, illegality, increased costs, regulatory change or similar event under this Confirmation, the Equity Definitions incorporated herein, or the Agreement (including, but not limited to, rights arising from Change in Law, Hedging Disruption, Increased Cost of Hedging, an Excess Ownership Position, or Illegality (as defined in the Agreement)).

(r)

Agreements and Acknowledgements Regarding Hedging. Counterparty understands, acknowledges and agrees that: (A) at any time on and prior to the Expiration Date, Nomura and its affiliates may buy or sell Shares or other securities or buy or sell options or futures contracts or enter into swaps or other derivative securities in order to adjust its hedge position with respect to the Transaction; (B) Nomura and its affiliates also may be active in the market for Shares other than in connection with hedging activities in relation to the Transaction; (C) Nomura shall make its own determination as to whether, when or in what manner any hedging or market activities in securities of Issuer shall be conducted and shall do so in a manner that it deems appropriate to hedge its price and market risk with respect to the Relevant Prices; and (D) any market activities of Nomura and its affiliates with respect to Shares may affect the market price and volatility of Shares, as well as the Relevant Prices, each in a manner that may be adverse to Counterparty.

(s)

Early Unwind. In the event the sale of the “Additional Securities” (as defined in the Purchase Agreement) is not consummated with the Initial Purchasers for any reason, or Counterparty fails to deliver to Nomura opinions of counsel as required pursuant to Section 9(a), in each case by 5:00 p.m. (New York City time) on the Closing Date, or such later date as agreed upon by the parties (the Closing Date or such later date, the “Early Unwind Date”), the Transaction shall automatically terminate (the “Early Unwind”) on the Early Unwind Date and (i) the Transaction and all of the respective rights and obligations of Nomura and Counterparty under the Transaction shall be cancelled and terminated and (ii) each party shall be released and discharged by the other party from and agrees not to make any claim against the other party with respect to any obligations or liabilities of the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall purchase from Nomura on the Early Unwind Date all Shares purchased by Nomura or one or more of its affiliates in connection with the Transaction at the then prevailing market price, as determined by the Calculation Agent. Each of Nomura and Counterparty represents and acknowledges to the other that, subject to the proviso included in this Section 9(s), upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.


(t)	Conduct Rules. Counterparty acknowledges and agrees to be bound by the Conduct Rules of the Financial Industry Regulatory Authority, Inc. applicable to transactions in options, and further agrees not to violate the position and exercise limits set forth therein.


(u)	Matters relating to Nomura and the Agent.


(i)	Nomura is not registered as a broker or dealer under the Exchange Act. Nomura Securities International, Inc. (“Agent”) has acted solely as agent for Nomura and Counterparty to the extent required by law in connection with the Transaction and has no obligations, by way of issuance, endorsement, guarantee or otherwise, with respect to the performance of either

party under the Transaction. The parties agree to proceed solely against each other, and not against Agent, in seeking enforcement of their rights and obligations with respect to the Transaction, including their rights and obligations with respect to payment of funds and delivery of securities.


(ii)	Agent may have been paid a fee by Nomura in connection with the Transaction. Further details will be furnished upon written request.


(iii)	The time of dealing for the Transaction will be furnished by Agent upon written request.

(v)

Payment by Counterparty. In the event that, following the payment by Counterparty of the Premium hereunder, (i) an Early Termination Date occurs or is designated with respect to the Transaction as a result of a Termination Event or an Event of Default (other than an Event of Default arising under Section 5(a)(ii) or 5(a)(iv) of the Agreement) and, as a result, Counterparty owes to Nomura an amount calculated under Section 6(e) of the Agreement, or (ii) Counterparty owes to Nomura, pursuant to Section 12.7 or Section 12.9 of the Equity Definitions, an amount calculated under Section 12.8 of the Equity Definitions, such amount shall be deemed to be zero.

(w)

Other Adjustments Pursuant to the Equity Definitions. Upon the occurrence of a Merger Date, the occurrence of a Tender Offer Date, or declaration by Counterparty of the terms of any Potential Adjustment Event, respectively, as such terms are defined in the Equity Definitions (subject to the immediately succeeding sentence), the Calculation Agent may, in its sole discretion, adjust the Cap Price to preserve the fair value of the Options to Nomura; provided that in no event shall the Cap Price be less than the Strike Price. Notwithstanding anything to the contrary in this Confirmation, solely for the purpose of adjusting the Cap Price pursuant to this section 9(w), the terms “Potential Adjustment Event,” “Merger Event,” and “Tender Offer” shall each have the meanings assigned to such term in the Equity Definitions (provided that Section 11.2(e)(vii) of the Equity Definitions shall be amended by (x) replacing the words “a diluting or concentrative” with “a material” and (y) adding the phrase “or the Options” at the end of such sentence).

Please confirm that the foregoing correctly sets forth the terms of our agreement by executing this Confirmation and returning it to us.

Very truly yours,



Nomura Global Financial Products Inc.
By:	/s/ Xxxxxx Xxxxx
Authorized Signatory
Name: Xxxxxx Xxxxx

[Cowen Capped Call Sig Page - Additional]

Accepted and confirmed
as of the Trade Date:



Xxxxx Group, Inc.
By:	/s/ Xxxxxxx Xxxxxx
Authorized Signatory
Name: Xxxxxxx Xxxxxx

[Cowen Capped Call Sig Page - Additional]

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