Exhibit
10.1
[Dealer’s name]
[Dealer’s address]1
November
[_____], 2023
Re: [Base][Additional]
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 [DEALER] (“Dealer”) and Uber Technologies, 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. Each party further agrees that this Confirmation together with the
Agreement evidence a complete binding agreement between Counterparty and Dealer as to the subject matter and terms of the Transaction
to which this Confirmation relates, and shall supersede all prior or contemporaneous written or oral communications with respect
thereto.
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, except that with respect to the standards of Section 1.40 of the Equity Definitions, as expressly modified by Section
4 below, the Equity Definitions shall govern. Certain defined terms used herein are based on terms that are defined in the Offering
Memorandum dated November 20, 2023 (the “Offering Memorandum”) relating to the 0.875% Convertible Senior Notes
due 2028 (as originally issued by Counterparty, the “Convertible Notes” and each USD 1,000 principal amount
of Convertible Notes, a “Convertible Note”) issued by Counterparty in an aggregate initial principal amount
of USD 1,500,000,000 (as increased by [up to]2 an
aggregate principal amount of USD 225,000,000 [if and to the extent that]3[pursuant
to the exercise by]4 the Initial Purchasers (as defined
below) [exercise]5[of]6
their option to purchase additional Convertible Notes pursuant to the Purchase Agreement (the “Purchase
Agreement”) dated as of November 20, 2023, between Counterparty and Barclays Capital Inc. and BofA Securities, Inc.,
as representatives of the Initial Purchasers party thereto (the “Initial Purchasers”)) pursuant to an Indenture
to be dated November 24, 2023 between Counterparty and U.S. Bank Trust Company, National Association, as trustee (the “Indenture”).
In the event of any inconsistency between the terms defined in the Offering Memorandum, the Indenture 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 Indenture that are also defined herein by reference to the Indenture and (ii) sections of
the Indenture that are referred to herein will conform to the descriptions thereof in the Offering Memorandum. If any such definitions
in the Indenture or any such sections of the Indenture 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 Indenture
section numbers and cross-references used herein are based on the draft of the Indenture last reviewed by Dealer as of the date
of this Confirmation, and if any such section numbers or cross-references are changed in the Indenture as executed, the parties
will amend this Confirmation in good faith to preserve the intent of the parties . Subject to the foregoing, references
to the Indenture herein are references to the Indenture as in effect on the date of its execution, and if the Indenture is amended
or supplemented following such date (other than any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture
that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum
or (y) pursuant to Section 14.07 of the Indenture, subject, in the case of this clause (y), to the second paragraph under “Method
of Adjustment” in Section 3 of this Confirmation), any such amendment or supplement will be disregarded for purposes
of this Confirmation (other than as provided in Section 9(i)(iii) of this Confirmation) unless the parties agree otherwise
in writing.
1 Include
Dealer name, address and, if applicable, logo.
2
Include in the Base Call Option Confirmation.
3
Include in the Base Call Option Confirmation.
4
Include in the Additional Call Option Confirmation.
5
Include in the Base Call Option Confirmation.
6
Include in the Additional Call Option Confirmation.
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 Dealer 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 Dealer and Counterparty had executed an agreement
in such form on the Trade Date (but without any Schedule except for (i) the election of the laws of the State of New York as the
governing law (without reference to choice of law doctrine other than Sections 5-1401 and 5-1402 of the General Obligations Law);
(ii) the election of US Dollars as the Termination Currency; and (iii) the election that the “Cross Default” provisions
of Section 5(a)(vi) of the Agreement shall apply solely to Dealer with a “Threshold Amount” of three percent of Dealer’s
shareholders’ equity as of the Trade Date; provided that (A) “Specified Indebtedness” shall not include
obligations in respect of deposits received in the ordinary course of Dealer’s banking business, (B) the phrase “or
becoming capable at such time of being declared” shall be deleted from clause (1) of such Section 5(a)(vi) and (C) the following
sentence shall be added to the end of Section 5(a)(vi) of the Agreement: “Notwithstanding the foregoing, a default under
subsection (2) hereof shall not constitute an Event of Default if (i) the default was caused solely by error or omission of an
administrative or operational nature; (ii) funds were available to enable the party to make the payment when due; and (iii) the
payment is made within two Local Business Days of such party’s receipt of written notice of its failure to pay.”).
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. If there exists any ISDA Master Agreement between
Dealer and Counterparty or any confirmation or other agreement between Dealer and Counterparty pursuant to which an ISDA Master
Agreement is deemed to exist between Dealer and Counterparty, then notwithstanding anything to the contrary in such ISDA Master
Agreement, such confirmation or agreement or any other agreement to which Dealer and Counterparty are parties, the Transaction
shall not be considered a Transaction under, or otherwise governed by, such existing or deemed ISDA Master Agreement.
| 2. | The terms of the particular
Transaction to which this Confirmation relates are as follows: |
General
Terms.
| Trade
Date: | November
[____], 2023 |
| Effective
Date: | The
second Exchange Business Day immediately prior to the Premium Payment Date |
| Option Style: | “Modified
American”, as described under “Procedures for Exercise” below |
| Shares: | The
common stock of Counterparty, par value USD 0.00001 per share (Exchange symbol “UBER”). |
| Number
of Options: | [_______]7.
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. |
| Applicable
Percentage: | [__]% |
| Option
Entitlement: | A
number equal to the product of the Applicable Percentage and 13.7848. |
| Premium
Payment Date: | November
24, 2023 |
| Exchange: | The
New York Stock Exchange |
| Related
Exchange(s): | All
Exchanges; provided that Section 1.26 of the Equity Definitions shall be amended
to add the words “United States” before the word “exchange” in
the tenth line of such Section. |
| Excluded
Provisions: | Section
14.04(h) and Section 14.03 of the Indenture. |
Procedures
for Exercise.
| Conversion
Date: | With
respect to any conversion of a Convertible Note (other than any conversion of Convertible
Notes with a Conversion Date occurring prior to the Free Convertibility Date (any such
conversion, an “Early Conversion”), to which the provisions of Section
9(i)(i) of this Confirmation shall apply), the date on which the “Holder”
(as such term is defined in the Indenture) of such Convertible Note satisfies all of
the requirements for conversion thereof as set forth in Section 14.02(b) of the Indenture;
provided that if Counterparty has not delivered to Dealer a related Notice of
Exercise, then in no event shall a Conversion Date be deemed to occur hereunder (and
no Option shall be exercised or deemed to be exercised hereunder) with respect to any
surrender of a Convertible Note for conversion in respect of which Counterparty has elected
to designate a financial institution for exchange in lieu of conversion of such Convertible
Note pursuant to Section 14.12 of the Indenture. |
| Free
Convertibility Date: | September
1, 2028 |
| Expiration
Time: | The
Valuation Time |
7
For the Base Call Option Confirmation, this is equal to the number
of Convertible Notes in principal amount of $1,000 initially issued on the closing date for the Convertible Notes. For the Additional
Call Option Confirmation, this is equal to the number of additional Convertible Notes in principal amount of $1,000.
| Expiration
Date: | December
1, 2028, subject to earlier exercise. |
| Multiple
Exercise: | Applicable,
as described under “Automatic Exercise” below. |
| Automatic
Exercise: | Notwithstanding
Section 3.4 of the Equity Definitions, on each Conversion Date occurring on or after
the Free Convertibility Date, in respect of which a “Notice of Conversion”
(as such term is defined in the Indenture) that is effective as to Counterparty has been
delivered by the relevant converting “Holder” (as such term is defined in
the Indenture), a number of Options equal to [(i)] the number of Convertible Notes in
denominations of USD 1,000 as to which such Conversion Date has occurred [, minus
(ii) the number of Options that are or are deemed to be automatically exercised on
such Conversion Date under the Base Call Option Transaction Confirmation letter agreement
dated November 20, 2023 between Dealer and Counterparty (the “Base Call Option
Confirmation”) (and for the purposes of determining whether any Options under
this Confirmation or under the Base Call Option Confirmation will be automatically exercised
hereunder or under the Base Call Option Confirmation, the Convertible Notes subject to
conversion shall be allocated first to the Base Call Option Confirmation until all Options
thereunder are exercised or terminated),]8
shall be deemed to be automatically exercised; provided that such
Options shall be exercised or deemed exercised only if Counterparty has provided a Notice
of Exercise to Dealer in accordance with “Notice of Exercise” below. |
| | Notwithstanding
the foregoing, in no event shall the number of Options that are exercised or deemed exercised
hereunder exceed the Number of Options. |
| Notice
of Exercise: | Notwithstanding
anything to the contrary in the Equity Definitions or under “Automatic Exercise”
above, in order to exercise any Options relating to Convertible Notes with a Conversion
Date occurring on or after the Free Convertibility Date, Counterparty must notify Dealer
in writing before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately
preceding the Expiration Date specifying the number of such Options; provided
that if the Relevant Settlement Method for such Options is not Net Share Settlement,
Dealer shall have received a separate notice (the “Notice of Final Settlement
Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York
City time) on the Free Convertibility Date specifying (1) the Relevant Settlement Method
for such Options, and (2) if the Relevant Settlement Method for such Options is Combination
Settlement, the percentage of the consideration due upon conversion per Convertible Note
in excess of the principal amount thereof that Counterparty has elected to pay to “Holders”
(as such term is defined in the Indenture) of the related Convertible Notes in cash (the
“Cash Percentage”). Notwithstanding anything to the contrary herein,
if Counterparty does not timely deliver the Notice of Final Settlement Method, then the
Notice of Final Settlement Method shall be deemed timely given and the Relevant Settlement
Method specified therein shall be deemed to be Net Share Settlement. Counterparty acknowledges
its responsibilities under applicable securities laws, and in particular Section 9 and
Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder,
in respect of any election (or any deemed election) of a settlement method with respect
to the Convertible Notes. |
8Include
for Additional Call Option Confirmation only.
| 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 commercially reasonable discretion. |
| Market
Disruption Event: | A
“Market Disruption Event” as defined in the Indenture. |
Settlement
Terms.
| Settlement
Method: | For
any Option, Net Share Settlement; provided that if the Relevant Settlement Method
set forth below for such Option is not Net Share Settlement, then the Settlement Method
for such Option shall be such Relevant Settlement Method, but only if Counterparty shall
have notified Dealer of the Relevant Settlement Method in the Notice of Final Settlement
Method for such Option. |
| Relevant
Settlement Method: | In
respect of any Option: |
(i) if
Counterparty has not elected to settle all or any portion of its conversion obligations in respect of the related Convertible
Note in excess of the principal amount thereof in cash either by specifying a Cash Percentage of 0% or not timely specifying a
Cash Percentage, in each case, pursuant to Section 14.02(a)(i) of the Indenture, then the Relevant Settlement Method for such
Option shall be Net Share Settlement;
(ii) if
Counterparty has elected to settle its conversion obligations in respect of the related Convertible Note in excess of the principal
amount thereof in a combination of cash and Shares by specifying a Cash Percentage less than 100% but greater than 0% pursuant
to Section 14.02(a)(i) of the Indenture, then the Relevant Settlement Method for such Option shall be Combination Settlement;
and
(iii) if
Counterparty has elected to settle its conversion obligations in respect of the related Convertible Note in excess of the principal
amount thereof entirely in cash by specifying a Cash Percentage of 100% pursuant to Section 14.02(a)(i) of the Indenture, then
the Relevant Settlement Method for such Option shall be Cash Settlement.
| Net
Share Settlement: | If
Net Share Settlement is applicable to any Option exercised or deemed exercised hereunder,
Dealer will deliver to Counterparty, on the relevant Settlement Date for each such Option,
a number of Shares (the “Net Share Settlement Amount”) equal to the
sum, for each Valid Day during the Settlement Averaging Period for each such Option,
of (i) (a) the Daily Option Value for such Valid Day, divided by (b) the
Relevant Price on such Valid Day, divided by (ii) the number of Valid Days in
the Settlement Averaging Period; provided that in no event shall the Net Share
Settlement Amount for any Option exceed a number of Shares equal to the Applicable Limit
for such Option divided by the Applicable Limit Price on the Settlement Date for
such Option. |
| | Dealer
will pay cash in lieu of delivering any fractional Shares to be delivered with respect
to any Net Share Settlement Amount valued at the Relevant Price for the last Valid Day
of the Settlement Averaging Period. |
| Combination
Settlement: | If
Combination Settlement is applicable to any Option exercised or deemed exercised hereunder,
Dealer will pay or deliver, as the case may be, to Counterparty, on the relevant Settlement
Date for each such Option: |
| (i) | cash
(the “Combination Settlement Cash Amount”) equal to the sum, for each
Valid Day during the Settlement Averaging Period for such Option, of (A) an amount (the
“Daily Combination Settlement Cash Amount”) equal to the product of
(1) the Cash Percentage and (2) the Daily Option Value, divided by (B) the number
of Valid Days in the Settlement Averaging Period; provided that if the calculation
in clause (A) above results in zero or a negative number for any Valid Day, the Daily
Combination Settlement Cash Amount for such Valid Day shall be deemed to be zero; and |
| (ii) | Shares
(the “Combination Settlement Share Amount”) equal to the sum, for
each Valid Day during the Settlement Averaging Period for such Option, of a number of
Shares for such Valid Day (the “Daily Combination Settlement Share Amount”)
equal to (A) (1) the Daily Option Value on such Valid Day minus the Daily
Combination Settlement Cash Amount for such Valid Day, divided by (2) the Relevant
Price on such Valid Day, divided by (B) the number of Valid Days in the Settlement
Averaging Period; provided that if the calculation in sub-clause (A)(1) above
results in zero or a negative number for any Valid Day, the Daily Combination Settlement
Share Amount for such Valid Day shall be deemed to be zero; |
| | provided
that in no event shall the sum of (x) the Combination Settlement Cash Amount for
any Option and (y) the Combination Settlement Share Amount for such Option multiplied
by the Applicable Limit Price on the Settlement Date for such Option, exceed the
Applicable Limit for such Option. |
| | Dealer
will pay cash in lieu of delivering any fractional Shares to be delivered with respect
to any Combination Settlement Share Amount valued at the Relevant Price for the last
Valid Day of the Settlement Averaging Period. |
| Cash
Settlement: | If
Cash Settlement is applicable to any Option exercised or deemed exercised hereunder,
in lieu of Section 8.1 of the Equity Definitions, Dealer will pay to Counterparty, on
the relevant Settlement Date for each such Option, an amount of cash (the “Cash
Settlement Amount”) equal to the sum, for each Valid Day during the Settlement
Averaging Period for such Option, of (i) the Daily Option Value for such Valid Day, divided
by (ii) the number of Valid Days in the Settlement Averaging Period; provided
that in no event shall the Cash Settlement Amount exceed the Applicable Limit for
such Option. |
| Daily
Option Value: | For
any Valid Day, an amount equal to (i) the Option Entitlement on such Valid Day, multiplied
by (ii) (A) the lesser of the Relevant Price on such Valid Day and the Cap Price,
less (B) the Strike Price on such Valid Day; provided that if the calculation
contained in clause (ii) above results in a negative number, the Daily Option Value for
such Valid Day shall be deemed to be zero. In no event will the Daily Option Value be
less than zero. |
| Applicable
Limit: | For
any Option, an amount of cash equal to the Applicable Percentage multiplied by
the excess of (i) the aggregate of (A) the amount of cash paid to the “Holder”
(as such term is defined in the Indenture) of the related Convertible Note upon conversion
of such Convertible Note and (B) the number of Shares, if any, delivered to the “Holder”
(as such term is defined in the Indenture) of the related Convertible Note upon conversion
of such Convertible Note multiplied by the Applicable Limit Price on the Settlement
Date for such Option, over (ii) USD 1,000. |
| Applicable
Limit Price: | On
any day, the opening price as displayed under the heading “Op” on Bloomberg
page UBER <equity> (or any successor thereto). |
| Valid
Day: | A
“Trading Day” for purposes of determining the amounts due upon conversion
of the Convertible Notes as defined in the Indenture. |
| Scheduled
Valid Day: | A
“Scheduled Trading Day” as defined in the Indenture. |
| 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 UBER <equity> AQR (or its equivalent
successor if such page is not available) in respect of the period from the scheduled
open of trading on the Exchange to the Scheduled Closing Time of the Exchange on such
Valid Day (or if such volume-weighted average price is unavailable, the market value
of one Share on such Valid Day, as determined by the Calculation Agent in a commercially
reasonable manner 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, the 20 consecutive Valid Days commencing on, and including, the 21st
Scheduled Valid Day immediately prior to the Expiration Date. |
| Settlement
Date: | For
any Option, the second Business Day immediately following the final Valid Day of the
Settlement Averaging Period for such Option. |
| 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 “Physical Settlement” or
“Physically-settled” shall be read as references to “Share Settled”.
“Share Settled” in relation to any Option 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 (i) 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, (ii) Dealer may deliver
any Shares required to be delivered hereunder in certificated form in lieu of delivery
through the Clearance System, (iii) any Shares delivered to Counterparty may be “restricted
securities” (as defined in Rule 144 under the Securities Act of 1933, as amended
(the “Securities Act”)) and (iv) the Representation and Agreement
contained in Section 9.11 of the Equity Definitions shall be deemed modified accordingly. |
| 3. | Additional Terms applicable
to the Transaction. |
Adjustments
applicable to the Transaction:
| Potential
Adjustment Events: | 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 requires an adjustment under the Indenture 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,”
“Daily Net Settlement Amount” or “Daily Settlement Amount” (as
each such term is defined in the Indenture). For the avoidance of doubt, Dealer 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 Notes (upon conversion or
otherwise) or (y) any other transaction in which holders of the Convertible Notes are
entitled to participate, in each case, in lieu of an adjustment under the Indenture of
the type referred to in the immediately preceding sentence (including, without limitation,
pursuant to the fifth sentence of Section 14.04(c) of the Indenture or the fourth sentence
of Section 14.04(d) of the Indenture). |
| Method
of Adjustment: | Calculation
Agent Adjustment, which shall not have the meaning set forth in Section 11.2(c) of the
Equity Definitions and instead shall mean that, upon any Potential Adjustment Event,
the Calculation Agent shall make adjustments in a commercially reasonable manner 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 that correspond
to the adjustments to the Convertible Notes under the Indenture. |
| | 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
Notes determined pursuant to the Indenture that involves an exercise of discretion by
Counterparty or its board of directors (including, without limitation, pursuant to Section
14.05 of the Indenture, Section 14.07 of the Indenture or any supplemental indenture
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, using, if applicable,
the methodology set forth in the Indenture for any such adjustment, in good faith and
in a commercially reasonable manner. |
| | Notwithstanding
anything contained herein to the contrary, (i) in connection with any Potential Adjustment
Event as a result of an event or condition set forth in Section 14.04(b) of the Indenture
or Section 14.04(c) of the Indenture where, in either case, the period for determining
“Y” (as such term is used in Section 14.04(b) of the Indenture) or “SP0”
(as such term is used in Section 14.04(c) of the Indenture), as the case may be, begins
before Counterparty has publicly announced the event or condition giving rise to such
Potential Adjustment Event, then the Calculation Agent shall, acting in good faith and
in a commercially reasonable manner, have the right to adjust any variable relevant to
the exercise, settlement or payment for the Transaction as appropriate to reflect the
commercially reasonable costs incurred by Dealer in connection with its hedging activities,
with such adjustments to be made only if Dealer maintains commercially reasonable hedge
positions, as a result of such event or condition not having been publicly announced
prior to the beginning of such period and (ii) if any Potential Adjustment Event is declared
and (a) the event or condition giving rise to such Potential Adjustment Event is subsequently
amended, modified, cancelled or abandoned, (b) the “Conversion Rate” (as
such term is defined in the Indenture) is otherwise not adjusted at the time or in the
manner contemplated by the relevant Dilution Adjustment Provision based on such declaration
or (c) the “Conversion Rate” (as such term is defined in the Indenture) is
adjusted as a result of such Potential Adjustment Event and subsequently re-adjusted
(each of clauses (a), (b) and (c), a “Potential Adjustment Event Change”)
then, in each case, the Calculation Agent shall have the right to adjust any variable
relevant to the exercise, settlement or payment for the Transaction as appropriate to
reflect the costs (including, but not limited to, hedging mismatches and market losses)
and expenses incurred by Dealer in connection with its commercially reasonable hedging
activities as a result of such Potential Adjustment Event Change, with such adjustments
to be made only if Dealer maintains commercially reasonable hedge positions. |
| Dilution
Adjustment Provisions: | Sections
14.04(a), (b), (c), (d) and (e) and Section 14.05 of the Indenture. |
Extraordinary
Events applicable to the Transaction:
| 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(a) of the Indenture. |
| Tender
Offers: | Applicable;
provided that “Tender Offer” shall not have the meaning set forth
in Section 12.1(d) of the Equity Definitions and instead shall mean 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, the Calculation Agent shall make a corresponding adjustment
in respect of any adjustment under the Indenture to any one or more of the nature of
the Shares (in the case of a 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 such term is defined in the Indenture) 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 laws of the United States,
any State thereof or the District of Columbia, then, in either case, Cancellation and
Payment (Calculation Agent Determination) shall apply if (A) Dealer determines in a good
faith and commercially reasonable manner at any time following the occurrence of such
Merger Event or Tender Offer that (x) such Merger Event or Tender Offer has had or will
have an adverse effect on Dealer’s rights and obligations under the Transaction
or (y) Dealer will incur or has incurred an increased (as compared with circumstances
existing on the Trade Date) amount of tax, duty, expense or fee to (1) acquire, establish,
re-establish, substitute, maintain, unwind or dispose of any transaction(s) or asset(s)
constituting a commercially reasonable hedge position in respect of the economic risk
of entering into and performing its obligations with respect to the Transaction or (2)
realize, recover or remit the proceeds of any transaction(s) or asset(s) constituting
a commercially reasonable hedge position in respect of the economic risk of entering
into and performing its obligations with respect to the Transaction or (B) Dealer determines,
in its good faith and commercially reasonable judgment, that it will not be in compliance
with applicable legal, regulatory or self-regulatory requirements, or with related policies
and procedures, applicable to Dealer; provided further that, for the avoidance
of doubt, adjustments shall be made pursuant to the provisions set forth above regardless
of whether any Merger Event or Tender Offer gives rise to an Early Conversion. |
| Consequences
of Announcement Events: | Modified
Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions;
provided that, in respect of an Announcement Event (w) references in such Section
12.3(d) to “Tender Offer” shall be replaced by references to “Announcement
Event” and references in such Section 12.3(d) 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)” in such Section 12.3(d) 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 (as determined by the Calculation Agent) period of time prior to or after
the Announcement Event,” shall be inserted prior to the word “which”
in the seventh line of such Section 12.3(d), 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, acting in good faith and in a
commercially reasonable manner, adjust the Cap Price accordingly) on one or more occasions
on or after the date of the Announcement Event up to, and including, the Expiration Date,
any Early Termination Date and/or any other date of cancellation, it being understood
that (1) any adjustment in respect of an Announcement Event shall take into account any
earlier adjustment relating to the same Announcement Event and (2) such adjustment shall
be made without duplication of any other adjustment hereunder. An Announcement Event
shall be an “Extraordinary Event” for purposes of the Equity Definitions,
to which Article 12 of the Equity Definitions, as modified in this paragraph, is applicable. |
| Announcement
Event: | (i)
The public announcement by the Issuer, any subsidiary or agent of the Issuer or any Valid
Third Party Entity of (x) any transaction or event that, if completed, would constitute
a Merger Event or Tender Offer, (y) any potential acquisition or disposition by Issuer
and/or its subsidiaries where the aggregate consideration exceeds 40% of the market capitalization
of Issuer as of the date of such announcement (an “Acquisition Transaction”)
or (z) the intention to enter into a Merger Event or Tender Offer or an Acquisition
Transaction, (ii) the public announcement by Issuer of an intention to solicit or enter
into, or to explore strategic alternatives or other similar undertaking that may include,
a Merger Event or Tender Offer or an Acquisition Transaction or (iii) any subsequent
public announcement by the Issuer, any subsidiary or agent of the Issuer or any Valid
Third Party Entity of a change to a transaction or intention that is the subject of an
announcement of the type described in clause (i) or (ii) of this sentence (including,
without limitation, a new announcement, whether or not by the same party, relating to
such a transaction or intention or the announcement of a withdrawal from, or the abandonment
or discontinuation of, such a transaction or intention), as determined by the Calculation
Agent. For the avoidance of doubt, the occurrence of an Announcement Event with respect
to any transaction or intention shall not preclude the occurrence of a later Announcement
Event with respect to such transaction or intention. For purposes of this definition
of “Announcement Event,” (A) “Merger Event” shall mean such term
as defined under Section 12.1(b) of the Equity Definitions (but, for the avoidance of
doubt, the remainder of the definition of “Merger Event” in Section 12.1(b)
of the Equity Definitions following the definition of “Reverse Merger” therein
shall be disregarded) and (B) “Tender Offer” shall mean such term as defined
under Section 12.1(d) of the Equity Definitions, except that all references to “voting
shares” in Sections 12.1(d), 12.1(e) and 12.1(l) of the Equity Definitions shall
be deemed to be references to “Shares”. |
| Valid
Third Party Entity: | In
respect of any transaction, any third party that has a bona fide intent to enter into
or consummate such transaction (it being understood and agreed that in determining whether
such third party has such a bona fide intent, the Calculation Agent may take into consideration
the effect of the relevant announcement by such third party on the Shares and/or options
relating to the Shares). |
| 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 phrase “the interpretation” in the third line thereof
with the phrase “, or public announcement of, the formal or informal interpretation”,
(ii) replacing the word “Shares” where it appears in clause (X) thereof with
the words “Hedge Position”, (iii) replacing the parenthetical beginning after
the word “regulation” in the second line thereof the words “(including,
for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption, effectiveness
or promulgation of new regulations authorized or mandated by existing statute)”
and (iv) adding the words “provided that in the case of clause (Y) hereof,
the consequence of such law, regulation or interpretation is applied consistently by
Dealer to all similar transactions in a non-discriminatory manner;” after the semi-colon
in the last line thereof; provided further that, in the case of any Change
in Law described in clause (Y) of Section 12.9(a)(ii) of the Equity Definitions, the
consequences provided with respect to “Increased Cost of Hedging” in Section
12.9(b)(vi) of the Equity Definitions shall apply to such Change in Law, as if Increased
Cost of Hedging were applicable to such event. |
| Failure
to Deliver: | Applicable |
| Hedging
Disruption: | Applicable;
provided that: |
| (i) | Section
12.9(a)(v) of the Equity Definitions is hereby amended by 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.”; |
| (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
the portion of the Transaction affected by such Hedging Disruption”; and |
| (iii) | it
shall not be a Hedging Disruption if such inability occurs solely due to the deterioration
of the creditworthiness of the Hedging Party. |
| Increased
Cost of Hedging: | Not
Applicable |
| Hedging
Party: | For
all applicable Additional Disruption Events, Dealer. Following any determination by the
Hedging Party hereunder, within five Business Days following a written request by Counterparty
therefor, the Hedging Party shall provide to Counterparty by e-mail to the e-mail address
provided by Counterparty a written explanation and report (in a commonly used file format
for the storage and manipulation of financial data) describing in reasonable detail any
determination made by it (including, as applicable, any quotations, market data, information
from internal sources used in making such determinations, descriptions of the methodology
and any assumptions and basis used in making for such determination), it being understood
that the Hedging Party shall not be obligated to disclose any proprietary or confidential
models or proprietary or confidential information used by it for such determination.
All calculations, adjustments and determinations by Dealer acting in its capacity as
the Hedging Party shall be made in good faith and in a commercially reasonable manner
and only if Dealer maintains a commercially reasonable hedge position. |
| Determining
Party: | For
all applicable Extraordinary Events, Dealer. Following any determination by the Determining
Party hereunder, within five Business Days following a written request by Counterparty
therefor, the Determining Party shall provide to Counterparty by e-mail to the e-mail
address provided by Counterparty a written explanation and report (in a commonly used
file format for the storage and manipulation of financial data) describing in reasonable
detail any determination made by it (including, as applicable, any quotations, market
data, information from internal sources used in making such determinations, descriptions
of the methodology and any assumptions and basis used in making for such determination),
it being understood that the Determining Party shall not be obligated to disclose any
proprietary or confidential models or proprietary or confidential information used by
it for such determination. All calculations, adjustments, and determinations by Dealer
acting in its capacity as the Determining Party shall be made in good faith and in a
commercially reasonable manner and only if Dealer maintains a commercially reasonable
hedge position. |
Agreements
and Acknowledgments
| Regarding
Hedging Activities: | Applicable |
| Additional
Acknowledgments: | Applicable |
| 4. Calculation
Agent. | Dealer.
Regardless of whether or not a standard for the actions of the Calculation Agent is explicitly
stated in any provision hereof, the standards of Section 1.40 of the Equity Definitions,
as modified by adding the words, “acts or” immediately before the words,
“is required to act” in line 2 thereof, shall apply to the Calculation Agent
at all times and in respect of all circumstances hereunder. Following the occurrence
and during the continuation of an Event of Default described in Section 5(a)(vii) of
the Agreement with respect to which Dealer is the Defaulting Party, Counterparty shall
have the right to designate an independent, nationally recognized equity derivatives
dealer to replace Dealer as Calculation Agent, and the parties shall work in good faith
to execute any appropriate documentation required by such replacement Calculation Agent.
Following any determination or calculation by the Calculation Agent hereunder, within
five Business Days following a written request by Counterparty therefor, the Calculation
Agent shall provide to Counterparty as soon as reasonably practicable following such
request by e-mail to the e-mail address provided by Counterparty in such request a written
explanation and report (in a commonly used file format for the storage and manipulation
of financial data) displaying in commercially reasonable detail the basis for such determination
or calculation (including any quotations, market data or information from internal or
external sources, and any assumptions, used in making such determination or calculation),
it being understood that the Calculation Agent shall not be obligated to disclose any
proprietary or confidential models or proprietary or confidential information used by
it for such determination or calculation. |
| (a) | Account
for payments to Counterparty: |
To be provided.
Account for delivery of
Shares to Counterparty:
To be provided.
| (b) | Account
for payments to Dealer: |
| [Bank
Routing:] | [_________] |
Account for delivery of
Shares from Dealer:
To be provided.
| (a) | The
Office of Counterparty for the Transaction is: Inapplicable, Counterparty is not a Multibranch
Party. |
| (b) | The
Office of Dealer for the Transaction is: [____________][Inapplicable; Dealer is not a
Multibranch Party]10 |
| (a) | Address
for notices or communications to Counterparty: |
| To: | Uber Technologies, Inc. |
0000
Xxxxx Xxxxxx
San
Francisco, CA 94158
Attention:
Chief Financial Officer
9
Insert Dealer’s account information.
10Update
as appropriate for Dealer.
With a copy to:
0000
Xxxxx Xxxxxx
San
Francisco, CA 94158
Attention:
General Counsel
| (b) | Address
for notices or communications to Dealer: |
With a copy to:
| 8. | Representations and
Warranties of Counterparty. |
In
addition to the representations and warranties set forth in Section 3(a) of the Agreement, Counterparty hereby represents and
warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
| (a) | 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. |
| (b) | 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). |
| (c) | Counterparty
is not, on the date hereof, in possession of any material non-public information with
respect to Counterparty or the Shares. |
| (d) | To
the knowledge of Counterparty, no state or local (including non-U.S. jurisdictions) law,
rule, regulation or regulatory order applicable to the Shares would give rise to any
reporting, consent, registration or other requirement (including without limitation a
requirement to obtain prior approval from any person or entity) as a result of Dealer
or its affiliates owning or holding (however defined) Shares; provided that Counterparty
makes no representation or warranty regarding any such requirement that is applicable
generally to the ownership of equity securities by Dealer or any of its affiliates solely
as a result of it or any of such affiliates being financial institutions or broker-dealers. |
| (e) | 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 USD 50 million. |
11Insert
Dealer’s information.
| (f) | On
and immediately after the Trade Date and the Premium Payment Date, (A) the value
of the total assets of Counterparty is greater than the sum of the total liabilities
(including contingent liabilities) and the capital (as such terms are defined in Section
154 and Section 244 of the General Corporation Law of the State of Delaware) of Counterparty,
(B) the capital of Counterparty is adequate to conduct the business of Counterparty,
and Counterparty’s entry into the Transaction will not impair its capital, (C) Counterparty
has the ability to pay its debts and obligations as such debts mature and does not intend
to, or does not believe that it will, incur debt beyond its ability to pay as such debts
mature, (D) Counterparty will be able to continue as a going concern; (E) Counterparty
is not “insolvent” (as such term is defined under Section 101(32) of the
U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”))
and (F) Counterparty would be able to purchase the number of Shares with respect to the
Transaction in compliance with the laws of the jurisdiction of Counterparty’s incorporation
(including the adequate surplus and capital requirements of Sections 154 and 160 of the
General Corporation Law of the State of Delaware). |
| (g) | [Counterparty
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”.]12 |
| (a) | Opinions.
Counterparty shall deliver to Dealer an opinion of counsel, dated as of the Trade Date,
with respect to the matters set forth in Section 3(a) of the Agreement, subject to customary
assumptions, qualifications, and exceptions. Delivery of such opinion to Dealer shall
be a condition precedent for the purpose of Section 2(a)(iii) of the Agreement with respect
to each obligation of Dealer under Section 2(a)(i) of the Agreement. |
| (b) | Repurchase
Notices. Counterparty shall, no later than one Exchange Business Day following
the day on which Counterparty effects any repurchase of Shares, give Dealer a written
notice of such repurchase (a “Repurchase Notice”) if following such
repurchase, the number of outstanding Shares as determined on such day is (i) less than
[__] million (in the case of the first such notice) or (ii) thereafter more than [__]
million less than the number of Shares included in the immediately preceding Repurchase
Notice. Counterparty agrees to indemnify and hold harmless Dealer 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 commercially reasonable losses (including losses relating to Dealer’s
commercially reasonable 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 commercially reasonable
losses in connection therewith with respect to the Transaction), claims, damages, judgments,
liabilities and commercially reasonable and documented out-of-pocket expenses (including
reasonable external attorney’s fees), joint or several, which an Indemnified Person
may become subject to, as a result of Counterparty’s failure to provide Dealer
with a Repurchase Notice when 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 Dealer 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 reasonable and documented
fees and expenses of such counsel related to such proceeding. Counterparty shall be relieved
from liability to the extent that any Indemnified Person fails to promptly notify Counterparty
of any action commenced against it in respect of which indemnity may be sought hereunder
to the extent Counterparty is materially prejudiced as a result thereof. 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. |
12 Include for applicable Dealers.
| (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) 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 Dealer 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) of
this Confirmation or any obligations
under Section 9(n) or 9(s) 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) (the “Code”); |
| (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 Dealer,
will not expose Dealer
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 reasonably requested by and reasonably satisfactory
to Dealer; |
| (D) | Dealer
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 Dealer
would have been required to pay to Counterparty in the absence of such transfer and assignment; |
| (E) | No
Event of Default, Potential Event of Default or Termination Event will 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 Dealer
to permit Dealer to determine that results described in clauses (D) and (E)
will not occur upon or after such transfer and assignment; and |
| (G) | Counterparty
shall be responsible for all reasonable costs and expenses, including reasonable counsel
fees, incurred by Dealer in connection with such transfer or assignment. |
| (ii) | Dealer
may transfer or assign all or any part of its rights or obligations under the Transaction
(A) without Counterparty’s consent, to any affiliate of Dealer (1) that has a long-term
issuer rating that is equal to or better than Dealer’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 Dealer generally for
similar transactions, by Dealer or Dealer’s ultimate parent or (B) with Counterparty’s
prior written consent (such consent not to be unreasonably withheld) to any other recognized
dealer in transactions of the same type as the Transaction with a long-term issuer rating
equal to or better than the lesser of (1) the credit rating of Dealer at the time of
the transfer and (2) A- by Standard & Poor’s Financial Services LLC or its
successor (“S&P”), or A3 by Xxxxx’x Investor Service, Inc.
or its successor (“Moody’s”) or, if either S&P 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 Dealer; provided, however, Dealer may
transfer or assign pursuant to this paragraph only if (A) either (i) the transferee is
a “dealer in securities” within the meaning of Section 475(c)(1) of the Internal
Revenue Code of 1986, as amended (the “Code”), or (ii) the transfer
or assignment does not otherwise constitute a “deemed exchange” by Counterparty
within the meaning of Section 1001 of the Code, (B) Counterparty will not, as a result
of any withholding or deduction made by the transferee or assignee as a result of any
Tax, receive from the transferee or assignee on any payment date or delivery date (after
accounting for amounts paid by the transferee or assignee under Section 2(d)(i)(4) of
the Agreement as well as such withholding or deduction) an amount or a number of Shares,
as applicable, lower than the amount or the number of Shares, as applicable, that Dealer
would have been required to pay or deliver to Counterparty in the absence of such transfer
or assignment, except to the extent resulting from a Change in Law occurring after the
date of the transfer and/or assignment and (C) no Event of Default, Potential Event of
Default or Termination Event will occur as a result of such transfer and assignment.
If at any time at which (A) the Section 16 Percentage exceeds 8.5%, (B) the Option Equity
Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit
(if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess
Ownership Position”), Dealer, acting in good faith, 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 Dealer and within a time period reasonably
acceptable to Dealer such that no Excess Ownership Position exists, then Dealer 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 Dealer 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(l) of this Confirmation shall apply to any
amount that is payable by Dealer 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, (A) the numerator of which is the number
of Shares that Dealer and any of its affiliates or any other person subject to aggregation
with Dealer for purposes of the “beneficial ownership” test under Section
13 of the Exchange Act, or any “group” (within the meaning of Section 13
of the Exchange Act) of which Dealer is or may be deemed to be a part beneficially owns
(within the meaning of Section 13 of the Exchange Act), without duplication, on such
day (or, to the extent that for any reason the equivalent calculation under Section 16
of the Exchange Act and the rules and regulations thereunder results in a higher number,
such higher number) and (B) the denominator of which is the number of Shares outstanding
on such day. The “Option Equity Percentage” as of any day is the fraction,
expressed as a percentage, (A) the numerator of which is the sum of (1) the product of
the Number of Options and the Option Entitlement and (2) the aggregate number of Shares
underlying any other call option transaction sold by Dealer to Counterparty, 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 Dealer and any person whose ownership position
would be aggregated with that of Dealer (Dealer or any such person, a “Dealer
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 Dealer in its reasonable discretion.
The “Applicable Share Limit” means a number of Shares equal to (A)
the minimum number of Shares that, in Dealer’s reasonable judgment based on advice
of counsel, could give rise to reporting or registration obligations (except for filings
on Form 13F, Schedule 13D or Schedule 13G, in each case, as in effect on the Trade Date)
or other requirements (including obtaining prior approval from any person or entity)
of a Dealer Person, or could result in an adverse effect on a Dealer Person, under any
Applicable Restriction, as determined by Dealer in its reasonable discretion, minus
(B) 1% of the number of Shares outstanding. Dealer shall provide Counterparty with
written notice of any transfer or assignment on the date of or as promptly as practicable
after the date of such transfer or assignment. |
| (iii) | Notwithstanding
any other provision in this Confirmation to the contrary requiring or allowing Dealer
to purchase, sell, receive or deliver any Shares or other securities, or make or receive
any payment in cash, to or from Counterparty, Dealer 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 Dealer’s obligations in
respect of the Transaction and any such designee may assume such obligations. Dealer
shall be discharged of its obligations to Counterparty to the extent of any such performance. |
| (f) | Staggered
Settlement. If upon advice of counsel with respect to applicable legal and regulatory
requirements, including any requirements relating to Dealer’s commercially reasonable
hedging activities hereunder, Dealer reasonably determines, based on the advice of counsel,
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 Dealer on any Settlement Date for the Transaction,
Dealer may, by notice to Counterparty on or prior to any Settlement Date (a “Nominal
Settlement Date”), elect to deliver the Shares on two or more dates (each,
a “Staggered Settlement Date”) as follows: |
| (i) | in
such notice, Dealer will specify to Counterparty the related Staggered Settlement Dates
(the first of which will be such Nominal Settlement Date and the last of which will be
no later than the twentieth (20th) Exchange Business Day following such Nominal
Settlement Date) and the number of Shares that it will deliver on each Staggered Settlement
Date; |
| (ii) | the
aggregate number of Shares that Dealer will deliver to Counterparty hereunder on all
such Staggered Settlement Dates will equal the number of Shares that Dealer would otherwise
be required to deliver on such Nominal Settlement Date; and |
| (iii) | if
the Net Share Settlement terms or the Combination Settlement terms set forth above were
to apply on the Nominal Settlement Date, then the Net Share Settlement terms or the Combination
Settlement terms, as the case may be, will apply on each Staggered Settlement Date, except
that the Shares otherwise deliverable on such Nominal Settlement Date will be allocated
among such Staggered Settlement Dates as specified by Dealer in the notice referred to
in clause (i) above. |
| (h) | [Conduct
Rules. Each party acknowledges and agrees to be bound by the Conduct Rules of
the Financial Industry Regulatory Authority applicable to transactions in options, and
further agrees not to violate the position and exercise limits set forth therein.]13[Reserved.] |
| (i) | Additional
Termination Events. |
| (i) | Notwithstanding
anything to the contrary in this Confirmation, upon any Early Conversion in respect of
which a Notice of Conversion that is effective as to Counterparty has been delivered
by the relevant converting “Holder” (as such term is defined in the Indenture): |
| (A) | Counterparty
may, but is not required to, within five Scheduled Trading Days of the Conversion Date
for such Early Conversion, provide written notice (an “Early Conversion Notice”)
to Dealer specifying the number of Convertible Notes surrendered for conversion on such
Conversion Date (such Convertible Notes, the “Affected Convertible Notes”);
provided that such Early Conversion Notice shall contain the representation and
warranty that Counterparty is not, on the date thereof, aware of any material non-public
information with respect to Counterparty or the Shares [; provided, further,
that, any “Early Conversion Notice” delivered to Dealer pursuant to the
Base Call Option Confirmation shall be deemed to be an Early Conversion Notice pursuant
to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis
mutandis, to this Confirmation]14; |
| (B) | upon
receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business
Day as an Early Termination Date (which Exchange Business Day shall be on or as promptly
as reasonably practicable after the related settlement date for the conversion of such
Affected Convertible Notes) with respect to the portion of the Transaction corresponding
to a number of Options (the “Affected Number of Options”) equal to
the lesser of (x) the number of Affected Convertible Notes [minus the “Affected
Number of Options” (as defined in the Base Call Option Confirmation), if any, that
relate to such Affected Convertible Notes (and for the purposes of determining whether
any Options under this Confirmation or under the Base Call Option Confirmation will be
among the Affected Number of Options hereunder or under, and as defined in, the Base
Call Option Confirmation, the Affected Convertible Notes specified in such Early Conversion
Notice shall be allocated first to the Base Call Option Confirmation until all Options
thereunder are exercised or terminated)]15
and (y) the Number of Options as of the Conversion Date for such Early Conversion;
|
13 Include for applicable Dealers.
14 Insert for Additional Call Option Confirmation.
15 Include in Additional Call Option Confirmation only.
| (C) | any
payment hereunder with respect to such termination shall be calculated pursuant to Section
6 of the Agreement as if (x) 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 Affected Number of Options, (y) Counterparty were the sole Affected Party with
respect to such Additional Termination Event and (z) the terminated portion of the Transaction
were the sole Affected Transaction; provided that the amount payable with respect
to such termination shall not be greater than (1) the Applicable Percentage, multiplied
by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i)
the amount of cash paid to the “Holder” (as such term is defined in the Indenture)
of an Affected Convertible Note upon conversion of such Affected Convertible Note and
(ii) the number of Shares delivered (if any) to the “Holder” (as such term
is defined in the Indenture) of an Affected Convertible Note upon conversion of such
Affected Convertible Note, multiplied by the Applicable Limit Price on the relevant
date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible
Note, as determined by the Calculation Agent in good faith and in a commercially reasonable
manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note”
shall mean the amount determined by the Calculation Agent utilizing the numbers in the
table set forth below based on the date of payment of the amount due with respect to
the relevant Affected Number of Options (the “Affected Unwind Date”).
If the Affected Unwind Date is not listed below, the amount in the preceding sentence
shall be determined by the Calculation Agent by reference to the table below using a
linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue
Prices per Convertible Note for the dates immediately preceding and immediately following
the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph
shall be subject to Section 9(l) of this Confirmation. |
| Affected
Unwind Date |
Synthetic
Instrument Adjusted
Issue Price per Convertible Note |
| November
24, 2023 |
$[_______] |
| June
1, 2024 |
$[_______] |
| December
1, 2024 |
$[_______] |
| June
1, 2025 |
$[_______] |
| December
1, 2025 |
$[_______] |
| June
1, 2026 |
$[_______] |
| December
1, 2026 |
$[_______] |
| June
1, 2027 |
$[_______] |
| December
1, 2027 |
$[_______] |
| June
1, 2028 |
$[_______] |
| December
1, 2028 |
$[_______] |
| (D) | for
the avoidance of doubt, in determining the amount payable in respect of such Affected
Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume
that (x) the relevant Early Conversion and any conversions, adjustments, agreements,
payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto
had not occurred, (y) no adjustments to the “Conversion Rate” (as such term
is defined in the Indenture) have occurred pursuant to any Excluded Provision and (z)
the corresponding Convertible Notes remain outstanding; and |
| (E) | the
Transaction shall remain in full force and effect, except that, as of the Conversion
Date for such Early Conversion, the Number of Options shall be reduced by the Affected
Number of Options. |
| (ii) | Notwithstanding
anything to the contrary in this Confirmation, if an event of default with respect to
Counterparty occurs under the terms of the Convertible Notes as set forth in Section
6.01 of the Indenture and the Convertible Notes are declared due and payable as a result
thereof, then such event of default shall constitute an Additional Termination Event
applicable to the Transaction and, with respect to such Additional Termination Event,
(A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall
be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate
an Early Termination Date pursuant to Section 6(b) of the Agreement. |
| (iii) | Notwithstanding
anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall
constitute an Additional Termination Event applicable to the Transaction and, with respect
to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole
Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer
shall be the party entitled to designate an Early Termination Date pursuant to Section
6(b) of the Agreement. “Amendment Event” means that Counterparty amends,
modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture
or the Convertible Notes governing the principal amount, coupon, maturity, repurchase
obligation of Counterparty, redemption right of Counterparty, any term relating to conversion
of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment
provisions, conversion settlement dates or conversion conditions), or any term that would
require consent of the holders of not less than 100% of the principal amount of the Convertible
Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to
Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms
the Indenture to the description of Convertible Notes in the Offering Memorandum or (y)
pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer. |
| (iv) | Within
five Scheduled Trading Days following any Repayment Event (as defined below), Counterparty
(i) shall (solely to the extent that such Repayment Event results directly from a “Fundamental
Change” (as such term is defined in the Indenture) or an “Optional Redemption”
(as such term is defined in the Indenture)), and (ii) otherwise may, but shall not be
obligated to, notify Dealer of such Repayment Event and the aggregate principal amount
of Convertible Notes subject to such Repayment Event (any such notice, a “Repayment
Notice”); provided that in the case of (ii) only, such Repayment Notice
shall contain the representation and warranty that Counterparty is not, on the date thereof,
aware of any material non-public information with respect to Counterparty or the Shares[;
provided, further, that any “Repayment Notice” delivered to Dealer
pursuant to the Base Call Option Confirmation shall be deemed to be a Repayment Notice
pursuant to this Confirmation and the terms of such Repayment Notice shall apply, mutatis
mutandis, to this Confirmation]16.
The receipt by Dealer from Counterparty of any Repayment Notice, within the applicable
time period set forth in the preceding sentence, shall constitute an Additional Termination
Event as provided in this paragraph, it being understood that no Repayment Event shall
constitute an Additional Termination Event hereunder unless Dealer has so received such
Repayment Notice. Upon receipt of any such Repayment Notice, Dealer shall designate an
Exchange Business Day following receipt of such Repayment Notice (which in no event shall
be earlier than the date on which the relevant Repayment Event occurs or is consummated)
as an Early Termination Date with respect to the portion of the Transaction corresponding
to a number of Options (the “Repayment Options”) equal to the lesser
of (A) [(x)] the aggregate principal amount of such Convertible Notes specified in such
Repayment Notice, divided by USD 1,000, [minus (y) the number of “Repayment
Options” (as defined in the Base Call Option Confirmation), if any, that relate
to such Convertible Notes (and for the purposes of determining whether any Options under
this Confirmation or under the Base Call Option Confirmation will be among the Repayment
Options hereunder or under, and as defined in, the Base Call Option Confirmation, the
Convertible Notes specified in such Repayment Notice shall be allocated first to the
Base Call Option Confirmation until all Options thereunder are exercised or terminated)]17,
and (B) the Number of Options as of the date Dealer designates such Early Termination
Date and, as of such date, the Number of Options shall be reduced by the number of Repayment
Options. Any payment hereunder with respect to such termination (the “Repayment
Unwind Payment”) 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 the Transaction and a Number of Options equal to the number of Repayment
Options, (2) Counterparty were the sole Affected Party with respect to such Additional
Termination Event and (3) the terminated portion of the Transaction was the sole Affected
Transaction, provided that, in the event of a Repayment Event resulting from a “Fundamental
Change” (as such term is defined in the Indenture) or in connection with an “Optional
Redemption” (as such term is defined in the Indenture), the Repayment Unwind Payment
shall not be greater than (x) the number of Repayment Options multiplied by (y)
the product of (A) the Applicable Percentage and (B) (x) the amount paid by Counterparty
per Convertible Note in connection with the relevant Repayment Event pursuant to the
relevant sections of the Indenture minus (y) the Repayment Synthetic Instrument
Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in
good faith and in a commercially reasonable manner. “Repayment Synthetic Instrument
Adjusted Issue Price per Convertible Note” shall mean the amount determined
by the Calculation Agent utilizing the numbers in the table set forth below based on
the date of payment of the amount due with respect to the relevant Repayment Options
(the “Repayment Unwind Date”). If the Repayment Unwind Date is not
listed below, the amount in the preceding sentence shall be determined by the Calculation
Agent by reference to the table below using a linear interpolation between the lower
and higher Repayment Synthetic Instrument Adjusted Issue Prices per Convertible Note
for the dates immediately preceding and immediately following the Repayment Unwind Date.
For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to
Section 9(l) of this Confirmation. |
| Repayment
Affected Unwind Date |
Repayment
Synthetic Instrument Adjusted
Issue Price per Convertible Note |
| November
24, 2023 |
$[_______] |
| June
1, 2024 |
$[_______] |
| December
1, 2024 |
$[_______] |
| June
1, 2025 |
$[_______] |
| December
1, 2025 |
$[_______] |
| June
1, 2026 |
$[_______] |
| December
1, 2026 |
$[_______] |
| June
1, 2027 |
$[_______] |
| December
1, 2027 |
$[_______] |
| June
1, 2028 |
$[_______] |
| December
1, 2028 |
$[_______] |
16 Insert for Additional Call Option Confirmation.
17 Insert for Additional Call Option Confirmation.
| | For
the avoidance of doubt, solely for purposes of calculating the amount payable pursuant
to Section 6 of the Agreement pursuant to the immediately preceding sentence, Dealer
shall assume that the relevant Repayment Event (and, if applicable, the related “Fundamental
Change” (as such term is defined in the Indenture) and the announcement of such
“Fundamental Change” (as such term is defined in the Indenture)) had not
occurred. “Repayment Event” means that (i) any Convertible Notes are
repurchased and cancelled in accordance with the Indenture (whether in connection with
or as a result of a “Fundamental Change” (as such term is defined in the
Indenture), upon an “Optional Redemption” (as such term is defined in the
Indenture) or for any other reason) by Counterparty or any of its subsidiaries, (ii)
any Convertible Notes are delivered to Counterparty or any of its subsidiaries in exchange
for delivery of any property or assets of such party (howsoever described), (iii) any
principal of any of the Convertible Notes is repaid prior to the final maturity date
of the Convertible Notes (for any reason other than as a result of an acceleration of
the Convertible Notes that results in an Additional Termination Event pursuant to the
preceding Section 9(i)(ii)), or (iv) any Convertible Notes are exchanged by or for the
benefit of the holders thereof for any other securities of Counterparty or any of its
subsidiaries (or any other property, or any combination thereof) pursuant to any exchange
offer or similar transaction. For the avoidance of doubt, any conversion of Convertible
Notes (whether into cash, Shares, reference property or any combination thereof) pursuant
to the terms of the Indenture shall not constitute a Repayment Event. In addition, Counterparty
acknowledges, based on advice of outside counsel, its responsibilities under applicable
securities laws, including, in particular, Sections 9 and 10(b) of the Exchange Act and
the rules and regulations thereunder in respect of the Repayment Event, including, without
limitation, the delivery of a Repayment Notice hereunder. |
| (j) | Amendments
to Equity Definitions. |
| (i) | Section
11.2(e)(vii) of the Equity Definitions is hereby amended by deleting the words “that
may have a diluting or concentrative effect on the theoretical value of the relevant
Shares” and replacing them with the words “that is the result of a corporate
event involving the Issuer or its securities that has, in the commercially reasonable
judgment of the Calculation Agent, a material economic effect on the Shares or the Options.” |
| (ii) | Section
12.9(b)(i) of the Equity Definitions is hereby amended by (1) replacing “either
party may elect” with “Dealer may elect” and (2) replacing “notice
to the other party” with “notice to Counterparty” in the first sentence
of such Section. |
| (k) | Setoff.
Notwithstanding any provision of the Agreement and this Confirmation (including without
limitation this Section 9(k)) or any other agreement between the parties to the contrary,
each party waives any and all rights it may have to set off obligations arising under
the Agreement and the Transaction against other obligations between the parties, whether
arising under any other agreement, applicable law or otherwise. |
| (l) | 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 all holders of Shares consists solely of cash, (ii) an Announcement Event,
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 sole 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 Dealer
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 Dealer shall satisfy the Payment Obligation
by the Share Termination Alternative (as defined below), unless (a) Counterparty
gives irrevocable telephonic notice to Dealer, confirmed in writing within one Scheduled
Trading Day, no later than 12:00 p.m. (New York City time) on the date of the Announcement
Event, 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 shall not apply, (b) Counterparty
remakes the representation set forth in Section 8(c) of this Confirmation as of
the date of such election and (c) Dealer agrees, in its sole discretion, to 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, Dealer 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, 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 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. |
| Share
Termination Unit Price: | The
value to Dealer 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 Dealer 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 that was purchased in connection
with the delivery of the Share Termination Delivery Units. |
| 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 of this Confirmation
will be applicable, except that all references in such provisions to “Physical
Settlement” or “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 Share Termination
Alternative is applicable to the Transaction. |
| (m) | 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. |
| (n) | Registration.
Counterparty hereby agrees that if, in the good faith reasonable judgment of Dealer,
based on the advice of counsel, the Shares acquired and held by Dealer for the purpose
of effecting a commercially reasonable hedge of its obligations pursuant to the Transaction
(“Hedge Shares”) cannot be sold in the public market by Dealer without
registration under the Securities Act (other than any such Hedge Shares that were, at
the time of acquisition by Dealer, “restricted securities” (as defined in
Rule 144 under the Securities Act)), Counterparty shall, at its election, either (i)
in order to allow Dealer to sell the Hedge Shares in a registered offering, make available
to Dealer an effective registration statement under the Securities Act and enter into
an agreement, in form and substance reasonably satisfactory to Dealer, substantially
in the form of an underwriting agreement for a registered secondary offering of substantially
similar size and in a similar industry; provided, however, that if Dealer,
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 Dealer 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 of similar size and industry, in form and substance reasonably satisfactory
to Dealer (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 Dealer
for any commercially reasonable 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 Dealer at the then-current market price on such Exchange Business Days, and in the
amounts and at such time(s), requested by Dealer. |
| (o) | 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. |
| (p) | Right
to Extend. Dealer may postpone or add, in a commercially reasonable manner, 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 Dealer, with respect to some or
all of the Options hereunder, to the extent Dealer reasonably determines (and in the
case of clause (ii) below, based on the advice of counsel), that such action is reasonably
necessary or appropriate (i) to preserve Dealer’s commercially reasonable hedging
or hedge unwind activity hereunder in light of existing liquidity conditions (but only
if there is a material decrease in liquidity relative to Dealer’s expectations
on the Trade Date) or (ii) to enable Dealer to effect purchases or sales of Shares in
connection with its commercially reasonable hedging, hedge unwind or settlement activity
hereunder in a manner that would, if Dealer were Counterparty or an affiliated purchaser
of Counterparty, be in compliance with applicable legal, regulatory or self-regulatory
requirements, or with related policies and procedures applicable to Dealer (so long as
such policies or procedures have been adopted by Dealer in good faith and are consistently
applied to transactions similar to the Transaction); provided that no such Valid
Day or other date of valuation, payment or delivery may be postponed or added more than
20 Valid Days after the original Valid Day or other date of valuation, payment or delivery,
as the case may be. |
| (q) | Status
of Claims in Bankruptcy. Dealer acknowledges and agrees that this Confirmation
is not intended to convey to Dealer rights against Counterparty with respect to the Transaction
that are senior to the claims of common stockholders of Counterparty in any United States
bankruptcy proceedings of Counterparty; provided that nothing herein shall limit
or shall be deemed to limit Dealer’s right to pursue remedies in the event of a
breach by Counterparty of its obligations and agreements with respect to the Transaction;
provided further that nothing herein shall limit or shall be deemed to
limit Dealer’s rights in respect of any transactions other than the Transaction. |
| (r) | 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. |
| (s) | 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 Dealer written notice of the types and amounts of consideration actually received
by holders of Shares pursuant to such Merger Event (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) | (A)
Counterparty shall give Dealer commercially reasonable advance (but in no event less
than one Exchange Business Day) written notice of the section or sections of the Indenture
and, if applicable, the formula therein, pursuant to which any adjustment will be made
to the Convertible Notes in connection with any Potential Adjustment Event, Merger Event
or Tender Offer and (B) promptly following any such adjustment, Counterparty shall give
Dealer written notice of the details of such adjustment. |
| (t) | 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)). |
| (u) | Agreements
and Acknowledgements Regarding Hedging. Counterparty understands, acknowledges
and agrees that: (A) at any time on and prior to the Expiration Date, Dealer 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) Dealer 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) Dealer 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 Dealer 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. |
| (v) | Early
Unwind. In the event the sale of the [“Firm Securities”]18[“Additional
Securities”]19
(as defined in the Purchase Agreement) is not consummated with the Initial
Purchaser for any reason, or Counterparty fails to deliver to Dealer an opinion of counsel
as required pursuant to Section 9(a) of this Confirmation, in each case by 5:00 p.m.
(New York City time) on the Premium Payment Date, or such later date as agreed upon by
the parties (the Premium Payment 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 Dealer 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. Each of Dealer and Counterparty represents and acknowledges to the other that upon
an Early Unwind, all obligations with respect to the Transaction shall be deemed fully
and finally discharged. |
(i)
Withholding Tax imposed on payments to non-U.S. counterparties under the United States Foreign Account Tax Compliance provisions
of the HIRE Act. The parties hereto agree that for the Transaction the terms “Tax” and “Indemnifiable Tax”
as defined in Section 13 of the Agreement, shall not include any Tax imposed pursuant to Section 1471 or 1472 of the Code, as
amended, any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section
1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement
entered into in connection with the implementation of such Sections of the Code (a “FATCA Withholding Tax”).
For the avoidance of doubt, a FATCA Withholding Tax is a Tax the deduction or withholding of which is required by applicable law
for the purposes of Section 2(d)(i) of the Agreement.
18
Insert for Base Call Option Confirmation.
19
Insert for Additional Call Option Confirmation
(ii)
Tax Documentation. For purposes of Section 4(a)(i) and (ii) of the Agreement, (i) Counterparty agrees to deliver to Dealer
one duly executed and completed United States Internal Revenue Service Form W-9 (or successor thereto) and (ii) Dealer agrees
to deliver to Counterparty [one duly executed and completed applicable Internal Revenue Service Form W-9 (or successor thereto)]20,
in each case, (A) or before the date of execution of this Confirmation and (B) promptly upon learning that any such tax form previously
provided by it has become obsolete or incorrect. Additionally, each party shall, promptly upon request by the other party, provide
such other tax forms and documents reasonably requested by the other party.
(iii)
Payee Tax Representations. Counterparty is a corporation for U.S. federal income tax purposes and is organized under the
laws of the State of Delaware. Counterparty is a “U.S. person” (as that term is used in section 1.1441-4(a)(3)(ii)
of the United States Treasury Regulations) for U.S. federal income tax purposes and an exempt recipient under Treasury Regulation
Section 1.6049-4(c)(1)(ii). [Dealer is a “U.S. person” (as that term is used in section 1.1441-4(a)(3)(ii) of the
United States Treasury Regulations) for U.S. federal income tax purposes and an exempt recipient under Treasury Regulation Section
1.6049-4(c)(1)(ii).]21 Each party agrees to give
notice of any failure of a representation made by it under this Section 9(w)(iii) to be accurate and true promptly upon learning
of such failure.
(iv)
Section 871(m). The parties hereto agree that for the Transaction the terms “Tax” and “Indemnifiable
Tax” as defined in Section 14 of the Agreement shall not include any tax imposed on payments treated as dividends from sources
within the United States under Section 871(m) of the Code or any regulations issued thereunder.
| (x) | Payment
by Counterparty. In the event that, following payment of the Premium, (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 Dealer an amount calculated under Section 6(e) of the Agreement, or (ii) Counterparty
owes to Dealer, 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. |
| (y) | Other
Adjustments Pursuant to the Equity Definitions. Notwithstanding anything to the
contrary in the Agreement, the Equity Definitions or this Confirmation, 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, the Calculation Agent shall determine
in good faith and in a commercially reasonable manner whether such occurrence or declaration,
as applicable, has had a material economic effect on the Transaction, and if so, shall,
in its good faith and commercially reasonable discretion, adjust the Cap Price to account
for the economic effect on the Transaction of such occurrence or declaration (provided
that in no event shall the Cap Price be less than the Strike Price; and provided
further that any adjustment to the Cap Price made pursuant to this section shall
be made without duplication of any other adjustment hereunder). Solely for purposes of
this Section 9(y): (x) the terms “Potential Adjustment Event,” “Merger
Event,” and “Tender Offer” shall each have the meanings assigned to
each such term in the Equity Definitions (in the case of the definition of “Potential
Adjustment Event”, as amended by Section 9(j)(i) of this Confirmation, and
in the case of the definition of “Tender Offer”, as amended by the provisions
opposite the caption “Announcement Event” in Section 3 of this Confirmation)
and (y) “Extraordinary Dividend” means any cash dividend on the Shares. |
20
To be updated as appropriate for Dealer.
21
To be updated as appropriate for Dealer.
| (z) | CARES
Act. Counterparty acknowledges that the Transaction may constitute a purchase
of its equity securities or a capital distribution. Counterparty further acknowledges
that, pursuant to the provisions of the Coronavirus Aid, Relief and Economic Security
Act (the “CARES Act”), Counterparty will be required to agree to certain
time-bound restrictions on its ability to purchase its equity securities or make capital
distributions if it receives loans, loan guarantees or direct loans (as that term is
defined in the CARES Act) under section 4003(b) of the CARES Act. Counterparty further
acknowledges that it may be required to agree to certain time-bound restrictions on its
ability to purchase its equity securities or make capital distributions if it receives
loans, loan guarantees or direct loans (as that term is defined in the CARES Act) under
programs or facilities established by the Board of Governors of the Federal Reserve System,
the U.S. Department of Treasury or similar governmental entity for the purpose of providing
liquidity to the financial system. Accordingly, Counterparty represents and warrants
that neither it, nor any of its subsidiaries have applied, and have no present intention
to apply, for a loan, loan guarantee, direct loan (as that term is defined in the
CARES Act) or other investment, or to receive any financial assistance or relief (howsoever
defined) under any program or facility that (a) is established under applicable law (whether
in existence as of the Trade Date or subsequently enacted, adopted or amended), including
without limitation the CARES Act and the Federal Reserve Act, as amended, and (b) requires
under applicable law (or any regulation, guidance, interpretation or other pronouncement
thereunder), as a condition of such loan, loan guarantee, direct loan (as that term is
defined in the CARES Act), investment, financial assistance or relief, that Counterparty
comply with any requirement to, or otherwise agree, attest, certify or warrant that it
has not, as of the date specified in such condition, repurchased, or will not repurchase,
any equity security of Counterparty; provided that Counterparty may
apply for any such governmental assistance if Counterparty determines based on the advice
of nationally recognized outside counsel that the terms of the Transaction would not
cause Counterparty to fail to satisfy any condition for application for or receipt or
retention of such governmental assistance based on the terms of the relevant program
or facility as of the date of such advice. Counterparty further represents and warrants
that the Premium is not being paid, in whole or in part, directly or indirectly, with
funds received under or pursuant to any program or facility, including the U.S. Small
Business Administration’s “Paycheck Protection Program”, that (a) is
established under applicable law, including without limitation the CARES Act and the
Federal Reserve Act, as amended, and (b) requires under such applicable law (or any regulation,
guidance, interpretation or other pronouncement of a governmental authority with jurisdiction
for such program or facility) that such funds be used for specified or enumerated purposes
that do not include the purchase of this Transaction (either by specific reference to
this Transaction or by general reference to transactions with the attributes of this
Transaction in all relevant respects). |
| (aa) | [Insert
Dealer agency boilerplate, if applicable.] |
| (bb) | [Insert
preferred form of US QFC Stay Rule language for each Dealer, as applicable.] |
| (cc) | [Insert
additional Dealer boilerplate, if applicable.] |
[Signature
Pages Follow]
Please
confirm that the foregoing correctly sets forth the terms of the agreement between Dealer and Counterparty with respect to the
Transaction, by manually signing this Confirmation or this page hereof as evidence of agreement to such terms and providing the
other information requested herein and returning an executed copy to Dealer.
Very
truly yours,
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[DEALER]22 |
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By: |
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Name: |
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Title: |
22
Include Dealer preferred signature page information, as applicable
[Signature
Page to the [Base] [Additional] Capped Call Confirmation]
Accepted
and confirmed
as of the Trade Date:
[Signature
Page to the [Base] [Additional] Capped Call Confirmation]
