Dealer Name and Address] To: Denison Mines Corp. Toronto Ontario M5J 1T1 Canada
Exhibit 99.3
BIDDING VERSION
[Dealer Name and Address]
[__],
2025
▇▇▇▇-▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Toronto
Ontario
M5J 1T1
Canada
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 Name]
(“Dealer”)
and ▇▇▇▇▇▇▇ Mines Corp.
(“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.
Certain defined terms used herein are based on terms that are
defined in the Preliminary Offering Memorandum dated August [_],
2025 (the “Offering
Memorandum”) relating to the [__]% Convertible Senior
Notes due 2031 (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
[●] (as increased by [up to]1 an aggregate principal amount of
USD [●] [if and to the extent that]2[pursuant to the exercise by]3 the Initial Purchasers (as defined
herein) [exercise]4[of]5 their option to purchase additional
Convertible Notes pursuant to the Purchase Agreement (as defined
herein)) pursuant to an Indenture [to be]6 dated August [__], 2025 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 which 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
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 are changed in the Indenture as executed, the
parties will amend this Confirmation in good faith to preserve the
intent of the parties]7[Indenture as executed]8. 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(i)]9 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]10 of the Indenture, subject, in the case
of this clause (y), to the second paragraph under “Method of
Adjustment” in Section 3), any such amendment or supplement
will be disregarded for purposes of this Confirmation unless the
parties agree otherwise in writing.
Each party is
hereby advised, and each such party acknowledges, that the other
party has engaged in, or refrained from engaging in, substantial
financial transactions and has taken other material actions in
reliance upon the parties’ entry into the Transaction to
which this Confirmation relates on the terms and conditions set
forth below.
1. This
Confirmation evidences a complete and binding agreement between
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 ISDA
2002 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), (ii) in respect of Section
5(a)(vi) of the Agreement, the election that the “Cross
Default” provisions shall apply to Dealer with (a) a
“Threshold Amount” of three percent of the
shareholders’ equity of [Dealer][Dealer’s ultimate
parent] as of the Trade Date, (b) the deletion of the phrase
“, or becoming capable at such time of being declared,”
from clause (1) and (c) the following language added to the end
thereof: “Notwithstanding the foregoing, a default under
subsection (2) hereof shall not constitute an Event of Default if
(x) the default was caused solely by error or omission of an
administrative or operational nature; (y) funds were available to
enable the party to make the payment when due; and (z) the payment
is made within two Local Business Days of such party’s
receipt of written notice of its failure to pay.” and (iii)
the modification that the term “Specified Indebtedness”
shall have the meaning specified in Section 14 of the Agreement,
except that such term shall not include obligations in respect of
deposits received in the ordinary course of a party’s banking
business). 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.
2. The
terms of the particular Transaction to which this Confirmation
relates are as follows:
General
Terms.
Trade
Date: [________], 2025
Effective
Date: The second Exchange Business Day immediately prior to
the Premium Payment Date, subject to Section 9(u).
Option
Style: “Modified American”, as described under
“Procedures for Exercise” below
Option
Type: Call
Buyer: Counterparty
Seller: Dealer
Shares: The
common shares of Counterparty (Exchange symbol
“DNN”).
Number of
Options: [_______]11. 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 [______]12.
Strike
Price: USD [______]
Cap
Price: USD [______]
Premium: USD
[______]
Premium Payment
Date: [________], 2025
Exchange: NYSE
American
Related
Exchange(s): All Exchanges
Conversion
Date: With respect to any conversion of a Convertible Note
occurring prior to the Free Convertibility Date (any such
conversion, an “Early
Conversion”), 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)]15 of the Indenture;
Free
Convertibility Date: June 15, 2031
Procedures for
Exercise.
Expiration
Time: The Valuation Time
Expiration
Date: September 15, 2031, subject to earlier
exercise.
Multiple
Exercise: Applicable, as described under “Automatic
Exercise” below.
Automatic
Exercise: Notwithstanding Section 3.4 of the Equity
Definitions or anything to the contrary in this Confirmation,
unless Counterparty notifies Dealer in writing prior to 5:00 p.m.
(New York City time) on the Expiration Date that it does not wish
Automatic Exercise to occur, all Options then outstanding as of
5:00 p.m. (New York City time) on the Expiration Date will be
deemed to be automatically exercised.
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 good faith and in its
commercially reasonable discretion.
Market Disruption
Event: Section 6.3(a) of the Equity Definitions is hereby
replaced in its entirety by the following:
“‘Market
Disruption Event’ means, in respect of a Share, (i) a failure
by the principal United States national or regional securities
exchange or market on which the Shares are then listed or admitted
for trading to open for trading during its regular trading session
or (ii) the occurrence or existence prior to 1:00 p.m. (New York
City time) on any Scheduled Valid Day for the Shares for more than
one half-hour period in the aggregate during regular trading hours
of any suspension or limitation imposed on trading (by reason of
movements in price exceeding limits permitted by the relevant stock
exchange or otherwise) in the Shares or in any options contracts or
futures contracts relating to the Shares.”
Settlement
Terms.
Settlement
Method:
For any Option, Cash
Settlement.
Cash
Settlement:
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.
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.
Valid
Day:
A day on which (i) there is
no Market Disruption Event and (ii) trading in the Shares generally
occurs on the Exchange or, if the Shares are not then listed on the
Exchange, on the principal other United States national or regional
securities exchange on which the Shares are then listed or admitted
for trading. If the Shares are not so listed or admitted for
trading, “Valid Day” means a Business Day.
Scheduled Valid
Day:
A day that is scheduled to be
a Valid Day on the principal United States national or regional
securities exchange or market on which the Shares are listed or
admitted for trading. If the Shares are not so listed or admitted
for trading, “Scheduled Valid Day” means a Business
Day.
Business
Day:
Any day other than a
Saturday, a Sunday or a day on which the Federal Reserve Bank of
New York or commercial banks in New York are 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 [▇▇▇.▇▇]16 <equity> AQR (or its equivalent
successor if such page is not available) in respect of the period
from the scheduled open of trading until the scheduled close of
trading of the primary trading session on such Valid Day (or if
such volume-weighted average price is unavailable, the market value
of one Share on such Valid Day, as determined by the Calculation
Agent in good faith and 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.
Settlement
Averaging Period: For any Option the [●]17 consecutive Valid Days commencing on,
and including, the [●]18st 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.
Settlement
Currency: USD
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 would result in 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” or “Daily Settlement
Amount” (each as 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 fourth sentence of the first
paragraph of Section 14.04(c)]19 of the Indenture or [the fourth
sentence of Section 14.04(d)]20 of the Indenture).
Method of
Adjustment: Calculation Agent Adjustment, which means that,
notwithstanding Section 11.2(c) of the Equity Definitions, upon any
Potential Adjustment Event, the Calculation Agent, acting in good
faith and commercially reasonably, taking into account the relevant
provisions of the Indenture, shall make a corresponding adjustment
to any one or more of the Strike Price, Number of Options, Option
Entitlement and any other variable relevant to the exercise,
settlement or payment for the Transaction.
Notwithstanding
the foregoing and “Consequences of Merger Events / Tender
Offers” below:
(i) if the
Calculation Agent in good faith disagrees with any adjustment to
the Convertible Notes that involves an exercise of discretion by
Counterparty or its board of directors (including, without
limitation, pursuant to Section [14.05]21 of the Indenture, Section
[14.07]22 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 in a commercially
reasonable manner, taking into account the relevant provisions of
the Indenture; provided
that, notwithstanding the foregoing, if any Potential Adjustment
Event occurs during the Settlement Averaging Period but no
adjustment was made to any Convertible Note under the Indenture
because the relevant “Holder” (as such term is defined
in the Indenture) was deemed to be a record owner of the underlying
Shares on the related Conversion Date, then the Calculation Agent
shall make a commercially reasonable adjustment, as determined by
it, to the terms hereof in order to account for such Potential
Adjustment Event;
(ii) in
connection with any Potential Adjustment Event as a result of an
event or condition set forth in Section [14.04(b)]23 of the Indenture or Section
[14.04(c)]24
of the Indenture where, in either case, the period for determining
“Y” (as such term is used in Section
[14.04(b)]25
of the Indenture) or “SP0” (as such
term is used in Section [14.04(c)]26 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 have the right to adjust, in good faith and
in a commercially reasonable manner, any variable relevant to the
exercise, settlement or payment for the Transaction as appropriate
to reflect the commercially reasonable 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 event or condition not
having been publicly announced prior to the beginning of such
period; and
(iii) 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 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
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, in good faith and
in a commercially reasonable manner, any variable relevant to the
exercise, settlement or payment for the Transaction as appropriate
to reflect the commercially reasonable costs (including, but not
limited to, hedging mismatches and market losses) and commercially
reasonable expenses incurred by Dealer in connection with its
commercially reasonable hedging activities as a result of such
Potential Adjustment Event Change.
Dilution
Adjustment Provisions: Sections [14.04(a), (b), (c), (d) and
(e)]27 and Section [14.05]28 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 “Merger Event” in Section
[14.07(a)]29
of the Indenture.
Tender
Offers: Applicable; provided that notwithstanding Section
12.1(d) of the Equity Definitions, a “Tender Offer”
means the occurrence of any event or condition set forth in
Section [14.04(e)]30 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, including, without limitation, to the
extent any depositary receipts constitute “Reference
Property” under, and as defined in, the Indenture), Strike
Price, Number of Options, Option Entitlement and any other variable
relevant to the exercise, settlement or payment for the
Transaction, subject to the second paragraph under “Method of
Adjustment”; provided, however, that such adjustment shall be
made without regard to any adjustment to the “Conversion
Rate” (as defined in the Indenture) pursuant to any Excluded
Provision; provided further
that if, with respect to any Merger Event or any Tender Offer,
(i) (A) the consideration for the Shares includes (or, at
the option of a holder of Shares, may include) shares (or
depositary receipts with respect to shares) of an entity or person
that is either (1) neither a corporation nor an entity that is
treated as a corporation for U.S. federal income tax purposes or
treated as a corporation for Canadian tax purposes or (2) not
organized under the laws of the United States, any State thereof,
the District of Columbia, the federal laws of Canada or any
province thereof, or (B) Counterparty to the Transaction following
such Merger Event or Tender Offer will not be either a corporation
or an entity that is treated as a corporation for U.S. federal
income tax purposes or will not be organized under the laws of the
United States, any State thereof or the District of Columbia, or
the laws of Canada or any province or territory thereof and (ii)
(A) Dealer determines in a 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 a material adverse effect on Dealer 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) it deems necessary or appropriate to hedge the economic
risk of entering into and performing its obligations with respect
to the Transaction in a commercially reasonable manner or (2)
realize, recover or remit the proceeds of any such transaction(s)
or asset(s) or (B) Dealer determines, in its good faith and
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, then,
in either case, Cancellation and Payment (Calculation Agent
Determination) may apply at Dealer’s commercially reasonable
election; 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, (x) references to
“Tender Offer” shall be replaced by references to
“Announcement Event” and references to “Tender
Offer Date” shall be replaced by references to “date of
such Announcement Event”, (y) the phrase “exercise,
settlement, payment or any other terms of the Transaction
(including, without limitation, the spread)” shall be
replaced with the phrase “Cap Price (provided that in no event shall the Cap
Price be less than the Strike Price)” and 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, and (z) for the avoidance
of doubt, the Calculation Agent shall determine whether the
relevant Announcement Event has had an 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 (and for the
avoidance of doubt shall make such adjustment to take into account
the cumulative effect on the Expiration Date, any Early Termination
Date and/or any other date of cancellation), it being understood
that any adjustment in respect of an Announcement Event shall take
into account any earlier adjustment relating to the same
Announcement Event. An Announcement Event shall be an
“Extraordinary Event” for purposes of the Equity
Definitions, to which Article 12 of the Equity Definitions is
applicable.
Announcement
Event:
(i) The public announcement
by Issuer, any subsidiary of Issuer, any agent of Issuer, any Valid
Third Party Entity or any agent of a 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 by Issuer and/or its subsidiaries where the aggregate
consideration exceeds 35% of the market capitalization of Issuer as
of the date of such announcement (a “Transformative Transaction”) or
(z) the intention to enter into a Merger Event or Tender Offer
or a Transformative 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, if
completed, would constitute a Merger Event, Tender Offer or
Transformative Transaction or (iii) any subsequent public
announcement by any entity referenced in clause (i) above 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 in a
commercially reasonable manner. 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 (as amended by Section 9(i)(ii)
below).
Valid Third Party
Entity: In respect of any transaction or event, any third
party that has a bona fide intent to enter into or consummate such
transaction, as determined by the Calculation Agent (it being
understood and agreed that in determining whether such third party
has such a bona fide intent, the Calculation Agent shall 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 NYSE American, the New York Stock
Exchange, The Nasdaq Global Select Market, The Nasdaq Global Market
or the Nasdaq Capital Market (or their respective successors); if
the Shares are immediately re-listed, re-traded or re-quoted on any
of NYSE American, the New York Stock Exchange, The Nasdaq Global
Select Market, The Nasdaq Global Market or the Nasdaq Capital
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” and (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, (y)
adoption, effectiveness or promulgation of new regulations
authorized or mandated by existing statute, or (z) in the case of
the laws of Canada or any political subdivision thereof, the public
announcement or issuance by a relevant governmental authority of
draft legislation, a notice of ways and means motion or a similar
document)”. Notwithstanding anything to the contrary in the
Equity Definitions, a Change in Law described in clause (Y) of
Section 12.9(a)(ii) of the Equity Definitions shall not constitute
a Change in Law and instead shall constitute an Increased Cost of
Hedging as described in Section 12.9(a)(vi) of the Equity
Definitions, and any such determination of a Change in Law shall be
consistently applied by the Determining Party across transactions
similar to the Transaction and for counterparties similar to
Counterparty.
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.”;
and
(ii) Section
12.9(b)(iii) of the Equity Definitions is hereby amended by
inserting in the third line thereof, after the words “to
terminate the Transaction”, the words “or, if a portion
of the Transaction is affected by such Hedging Disruption (as
determined by the Hedging Party in a commercially reasonable
manner), such portion of the Transaction affected by such Hedging
Disruption”.
Notwithstanding
anything to the contrary herein or in the Equity Definitions, in no
event will a Hedging Disruption occur solely due to the
deterioration of the creditworthiness of the Hedging
Party.
Increased Cost of
Hedging: Applicable solely with respect to a “Change in
Law” described in clause (Y) of Section 12.9(a)(ii) of the
Equity Definitions as set forth in the last sentence opposite the
caption “Change in Law” above (which determination
shall be consistently applied by the Determining Party across
transactions similar to the Transaction and for counterparties
similar to Counterparty).
Hedging
Party: For all applicable Additional Disruption Events,
Dealer. Following any determination by the Hedging Party hereunder,
the Hedging Party shall promptly (but in any event within five (5)
Exchange Business Days) provide to Counterparty by e-mail a report
(in a commonly used file format for the storage and manipulation of
financial data) displaying in reasonable detail the basis for such
determination (including any assumptions used in making such
determination), it being understood that the Hedging Party shall
not be obligated to disclose any proprietary or confidential models
used by it for such determination or any information that may be
proprietary or confidential or subject to an obligation not to
disclose such information. 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 assuming that Dealer maintains a commercially reasonable
hedge position.
Determining
Party: For all applicable Extraordinary Events, Dealer;
provided that when making
any determination or calculation as “Determining
Party,” Dealer shall be bound by the same obligations
relating to required acts of the Calculation Agent as set forth in
Section 1.40 of the Equity Definitions and this Confirmation as if
the Determining Party were the Calculation Agent. Following any
determination or calculation by the Determining Party hereunder,
the Determining Party shall promptly (but in any event within five
(5) Exchange Business Days) provide to Counterparty by e-mail a
report (in a commonly used file format for the storage and
manipulation of financial data) displaying in reasonable detail the
basis for such determination or calculation (including any
assumptions used in making such determination or calculation), it
being understood that the Determining Party shall not be obligated
to disclose any proprietary or confidential models used by it for
such determination or calculation or any information that may be
proprietary or confidential or subject to an obligation not to
disclose such information. 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 assuming that Dealer maintains a commercially reasonable
hedge position.
Non-Reliance: Applicable
Agreements and
Acknowledgments
Regarding Hedging
Activities: Applicable
Additional
Acknowledgments: Applicable
Hedging
Adjustments: For the avoidance of doubt, whenever the
Determining Party or Calculation Agent is called upon or permitted
to make an adjustment pursuant to the terms of this Confirmation or
the Equity Definitions to take into account the effect of an event
(other than, for the avoidance of doubt, any adjustment that is
required to be made by reference to the Indenture), the Determining
Party or Calculation Agent, as the case may be, shall make such
adjustment by reference to the effect of such event on Dealer
assuming that Dealer maintains a commercially reasonable hedge
position.
4.
Calculation
Agent. Dealer,
whose judgments, determinations and calculations shall be made in
good faith and in a commercially reasonable manner; provided that, following the occurrence
and during the continuance of an Event of Default of the type
described in Section 5(a)(vii) of the Agreement with respect to
which Dealer is the sole Defaulting Party, if the Calculation Agent
fails to timely make any calculation, adjustment or determination
required to be made by the Calculation Agent hereunder and such
failure continues for five (5) Exchange Business Days following
notice to the Calculation Agent by Counterparty of such failure,
Counterparty shall have the right to designate a nationally
recognized third-party dealer in over-the-counter corporate equity
derivatives to act, during the period commencing on the date such
Event of Default occurred and ending on the Early Termination Date
with respect to such Event of Default, as the Calculation Agent.
Following any determination, adjustment or calculation by the
Calculation Agent hereunder, the Calculation Agent shall promptly
(but in any event within five (5) Exchange Business Days) provide
to Counterparty by e-mail a report (in a commonly used file format
for the storage and manipulation of financial data) displaying in
reasonable detail the basis for such determination, adjustment or
calculation (including 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 used by it for such
determination or calculation or any information that may be
proprietary or confidential or subject to an obligation not to
disclose such information.
Dealer, whether
as Calculation Agent, Hedging Party, Determining Party or
otherwise, shall use commercially reasonable efforts to notify
Counterparty of any event giving rise to any adjustment required
or, to the extent it makes any such adjustment, permitted to be
made to the terms of the Transaction, the terms being adjusted and,
for each term so adjusted, such term, in each case, as promptly as
reasonably practicable after giving effect to such
adjustment.
5. Account
Details.
(a)
Account for payments to
Counterparty:
To be provided by
Counterparty.
(b)
Account for payments to
Dealer:
[_____]
6. Offices.
(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]
7. Notices.
(a)
Address for notices or
communications to Counterparty:
▇▇▇▇▇▇▇ Mines
Corp.
▇▇▇▇-▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Toronto
Ontario
M5J 1T1
Canada
Attention:
[_____]
E-mail:
[_____]
(b)
Address for notices or
communications to Dealer:
[______]
8. Representations
and Warranties of Counterparty.
Counterparty
hereby represents and warrants to Dealer on the date hereof and as
of the Premium Payment Date that:
(a)
Counterparty has all
necessary corporate power and authority to execute, deliver and
perform its obligations in respect of the Transaction; such
execution, delivery and performance have been duly authorized by
all necessary corporate action on Counterparty’s part; and
this Confirmation has been duly and validly executed and delivered
by Counterparty and constitutes its valid and binding obligation,
enforceable against Counterparty in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting
creditors’ rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity) and except that rights to
indemnification and contribution hereunder may be limited by
federal, provincial or state securities laws or public policy
relating thereto.
(b)
Neither the execution and
delivery of this Confirmation nor the incurrence or performance of
obligations of Counterparty hereunder will conflict with or result
in a breach of the articles of incorporation or by-laws (or any
equivalent documents) of Counterparty, or any applicable law or
regulation, or any order, writ, injunction or decree of any court
or governmental authority or agency, or any agreement or instrument
filed as an exhibit to Counterparty’s Annual Report on Form
40-F for the year ended December 31, 2024, as updated by any
subsequent filings, to which Counterparty or any of its
subsidiaries is a party or by which Counterparty or any of its
subsidiaries is bound or to which Counterparty or any of its
subsidiaries is subject, or constitute a default under, or result
in the creation of any lien under, any such agreement or
instrument.
(c)
No consent, approval,
authorization, or order of, or filing with, any governmental agency
or body or any court is required in connection with the execution,
delivery or performance by Counterparty of this Confirmation,
except such as have been obtained or made and such as may be
required under the Securities Act or provincial or state securities
laws.
(d)
Counterparty is not and,
after consummation of the transactions contemplated hereby, will
not be required to register as an “investment company”
as such term is defined in the Investment Company Act of 1940, as
amended.
(e)
Counterparty is an
“eligible contract participant” (as such term is
defined in Section 1a(18) of the Commodity Exchange Act, as
amended, other than a person that is an eligible contract
participant under Section 1a(18)(C) of the Commodity Exchange
Act).
(f)
Counterparty is not, on the
date hereof, in possession of any material non-public information
with respect to Counterparty or the Shares.
(g)
To Counterparty’s
actual knowledge, no state or local (including any non-U.S.
jurisdiction’s) 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.
(h)
Counterparty (A) is capable
of evaluating investment risks independently, both in general and
with regard to all transactions and investment strategies involving
a security or securities; (B) will exercise independent judgment in
evaluating the recommendations of any broker-dealer or its
associated persons, unless it has otherwise notified the
broker-dealer in writing; (C) has consulted with its own legal,
regulatory, tax, business, investments, financial and accounting
advisors with respect to the Transaction to the extent that it has
deemed necessary; and (D) has total assets of at least USD 50
million.
(i)
The assets of Counterparty do
not constitute “plan assets” under the Employee
Retirement Income Security Act of 1974, as amended, the Department
of Labor Regulations promulgated thereunder or similar
law.
(j)
On and immediately after the
Trade Date and the Premium Payment Date, (A) there are
no reasonable grounds for believing that (a) the Counterparty
is, or would after the payment of the Premium be, unable to pay its
liabilities as they become due; or (b) the realizable value of
the Counterparty’s assets would after the payment of the
Premium be less than the aggregate of its liabilities and stated
capital of all classes of shares and (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 an “insolvent
person” (as such term is defined under Section 2 of the
Bankruptcy and Insolvency
Act (Canada), R.S.C., 1985, c. B-3 or is insolvent within
the meaning of Canadian Insolvency Law (as defined below) 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.
(k)
Counterparty is a
“local counterparty” (as such term is defined under
applicable Canadian securities laws, including Ontario Securities
Commission Rule 91-507 – Trade Repositories and Derivatives
Data Reporting) for the purposes of the transactions contemplated
hereby and is an “eligible derivatives party” as
defined under Multilateral Instrument 93-101 Derivatives: Business Conduct pursuant
to paragraph (m) of that definition being a person or company,
other than an individual, that has net assets of at least CAD
25,000,000 as shown on its most recently prepared financial
statements.
(l)
The Transaction, including
the exercise or deemed exercise of any Option hereunder (whether at
maturity, upon early termination or cancellation or otherwise),
shall not constitute an “issuer bid” as such term is
defined in National Instrument 62-104—Take-Over Bids and Issuer Bids, and
provided that the Dealer is acting as principal in undertaking
commercially reasonable hedging activities with respect to the
Shares for its own account as contemplated by this Confirmation,
such hedging activities will not constitute an indirect
participation in an issuer bid.
9. Other
Provisions.
(a)
Opinions.
Counterparty shall deliver to Dealer an opinion of counsel, dated
as of the Premium Payment Date, with respect to the legal matters
set forth in Sections 8(a) through (d) of this Confirmation and
Section 3(a)(i) of the Agreement; provided that any such opinion of
counsel may contain customary exceptions and qualifications.
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. If at any time Counterparty ceases to qualify as a
“foreign private issuer” as defined in Rule 3b-4 under
the Exchange Act or the Shares otherwise become subject to Section
16 of the Exchange Act, Counterparty shall, on or prior to the date
one Scheduled Trading Day immediately following any date on which
Counterparty has effected any repurchase of Shares, promptly give
Dealer a written notice of such repurchase (a “Repurchase Notice”) on such day if
following such repurchase, the number of outstanding Shares as
determined on such day is (i) less than [__]31 million (in the case of the first such
notice) or (ii) thereafter more than [__]32 million less than the number of Shares
included in the immediately preceding Repurchase Notice;
provided that, with respect
to any repurchase of Shares pursuant to a plan under Rule 10b5-1
under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”),
Counterparty may elect to satisfy such requirement by promptly
giving Dealer written notice of the entry into such plan, the
maximum number of Shares that may be repurchased thereunder and the
approximate dates or periods during which such repurchases may
occur (with such maximum number of Shares deemed repurchased on the
date of such notice for purposes of this Section 9(b)).
Counterparty agrees that, if Counterparty ceases to qualify as a
“foreign private issuer” as defined in Rule 3b-4 under
the Exchange Act or the Shares otherwise become subject to the
requirements of Section 16 of the Exchange Act, Counterparty will
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 losses (including losses relating to
Dealer’s hedging activities as a consequence of becoming, or
of the risk of becoming, a Section 16 “insider”,
including without limitation, any forbearance from hedging
activities or cessation of hedging activities and any losses in
connection therewith with respect to the Transaction), claims,
damages, judgments, liabilities and reasonable expenses (including
reasonable attorney’s fees), joint or several, which an
Indemnified Person may become subject to, in each case, as a result
of Counterparty’s failure to provide Dealer with a Repurchase
Notice on the day and in the manner specified in this paragraph,
and to reimburse, within 30 days, upon written request, each of
such Indemnified Persons for any reasonable legal or other expenses
incurred in connection with investigating, preparing for, providing
testimony or other evidence in connection with or defending any of
the foregoing. If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be
brought or asserted against the Indemnified Person as a result of
Counterparty’s failure to provide 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 fees and expenses of
such counsel related to such proceeding. Counterparty shall not be
liable for any settlement of any proceeding contemplated by this
paragraph that is effected without its written consent, but if
settled with such consent or if there be a final judgment for the
plaintiff, Counterparty agrees to indemnify any Indemnified Person
from and against any loss or liability by reason of such settlement
or judgment. Counterparty shall not, without the prior written
consent of the Indemnified Person, effect any settlement of any
pending or threatened proceeding contemplated by this paragraph
that is in respect of which any Indemnified Person is or could have
been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability
on claims that are the subject matter of such proceeding on terms
reasonably satisfactory to such Indemnified Person. If the
indemnification provided for in this paragraph is unavailable to an
Indemnified Person or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then
Counterparty hereunder, in lieu of indemnifying such Indemnified
Person thereunder, shall contribute to the amount paid or payable
by such Indemnified Person as a result of such losses, claims,
damages or liabilities. The remedies provided for in this paragraph
(b) are not exclusive and shall
not limit any rights or remedies which may otherwise be available
to any Indemnified Person at law or in equity. The indemnity and
contribution agreements contained in this paragraph shall remain
operative and in full force and effect regardless of the
termination of the Transaction.
(c)
Regulation M and
OSC Rule 48-501. Counterparty is not on the Trade Date
engaged in a distribution, as such term is used in Regulation M
under 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. Counterparty will not take, directly or indirectly,
any action prohibited by Ontario Securities Commission Rule 48-501
– Trading during
Distributions, Formal Bids and Share Exchange Transactions
in connection with the Transaction.
(d)
No
Manipulation. Counterparty is not entering into the
Transaction to create actual or apparent trading activity in the
Shares (or any security convertible into or exchangeable for the
Shares) or to raise or depress or otherwise manipulate the price of
the Shares (or any security convertible into or exchangeable for
the Shares) or otherwise in violation of the Exchange Act or
applicable Canadian securities laws.
(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:
(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 Canadian and United States securities
laws in a manner that, in the reasonable judgment of
Dealer, will not expose Dealer to material risks under applicable Canadian and
United States securities laws) and execution of any documentation
and delivery of legal opinions with respect to applicable Canadian
and United States securities laws and other matters by such third
party and Counterparty, as are requested and reasonably
satisfactory to Dealer;
(D)
under
the applicable law effective on or as of the date of such transfer
and assignment, (1) Dealer will not, as a result of such
transfer and assignment (including, for the avoidance of doubt,
after giving effect to any indemnity from the transferee or
assignee to Dealer provided in connection with such transfer or
assignment), be required to pay the transferee on any payment date
an amount under Section 2(d)(i)(4) of the Agreement greater than
the amount that Dealer
would have been
required to pay to Counterparty in the absence of such transfer and
assignment, except to the extent that the greater amount is due to
a Change in Tax Law after the date of such transfer or assignment
and (2) Dealer shall be
entitled to a payment (including, for the avoidance of doubt, after
giving effect to any indemnity from the transferee or assignee to
Dealer provided in connection with such transfer or assignment), on
any payment date, that is not less than the payment Dealer would
have received in the absence of such transfer and/or assignment on
account of any deduction or withholding for or on account of any
Tax (as defined in the Agreement), except to the extent such
deduction or withholding is due to a Change in Tax Law after the
date of such transfer or 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
consent (such consent not to be unreasonably withheld or delayed),
to any other third party 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 and Poor’s
Financial Services LLC or its successor (“S&P”), or A3 by ▇▇▇▇▇’▇
Investor Service, Inc. or its successor (“▇▇▇▇▇’▇”) or, if either
S&P or ▇▇▇▇▇’▇ ceases to rate such debt, at least an
equivalent rating or better by a substitute rating agency mutually
agreed by Counterparty and Dealer; provided that, in the case of any
transfer or assignment described in clause (A) or (B) above, under
the applicable law effective on or as of the date of such transfer
or assignment, (i) no Event of Default, Potential Event of Default
or Termination Event will occur as a result of such transfer or
assignment, (ii) such transfer or assignment would not result in a
taxable exchange from Counterparty’s perspective for U.S.
federal income tax purposes, (iii)(1) Counterparty will not, as a
result of such transfer or assignment (including, for the avoidance
of doubt, after giving effect to any indemnity to Counterparty
provided in connection with such transfer or assignment), be
required to pay the transferee or assignee on any payment date an
amount under Section 2(d)(i)(4) of the Agreement greater than the
amount that Counterparty would have been required to pay to Dealer
in the absence of such transfer or assignment, except to the extent
that the greater amount is due to a Change in Tax Law after the
date of such transfer or assignment and (2) Counterparty shall be
entitled to a payment (including, for the avoidance of doubt, after
giving effect to any indemnity to Counterparty provided in
connection with such transfer or assignment), on any payment date,
that is not less than the payment Counterparty would have received
in the absence of such transfer and/or assignment on account of any
deduction or withholding for or on account of any Tax (as defined
in the Agreement), except to the extent such deduction or
withholding is due to a Change in Tax Law after the date of such
transfer or assignment. If at any time at which (A) the Section 13
Percentage exceeds 9.0%, (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 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(k) 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 13
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 applies with respect to the Shares 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 could give rise to reporting or
registration obligations (except for any filing requirements on
Form 13F, Schedule 13D or Schedule 13G under the Exchange Act, 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 cause the transferee or assignee
to make the Payee Tax Representations and to provide such tax
documentation as may be reasonably requested by Counterparty to
permit Counterparty to determine that the results described in
(ii), (iii)(1) and (iii)(2) of this paragraph will not occur upon
or after the transfer and 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. Counterparty
shall be entitled to a payment, on any payment date, that is not,
after giving effect to any amounts paid under Section 2(d)(i)(4) of
the Agreement, less than the payment Counterparty would have
received in the absence of such designation on account of any
deduction or withholding for or on account of any Tax (as defined
in the Agreement), except to the extent such deduction or
withholding results from a Change in Tax Law occurring after the
date of such designation. Dealer shall be discharged of its
obligations to Counterparty to the extent of any such
performance.
(f)
Eligible Financial
Contract. The parties intend that this Agreement, including
all Transactions entered into hereunder, shall be an
“eligible financial contract” as such term is defined
in the Bankruptcy and Insolvency
Act (Canada), the Companies’ Creditors Arrangement
Act (Canada) and the Winding-Up and Restructuring Act
(Canada) (collectively, “Canadian Insolvency
Law”).
(g)
Additional
Termination Events.
(i)
Notwithstanding anything to the
contrary in this Confirmation, upon any Early Conversion 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)
Counterparty may, in its sole and absolute
discretion, within five (5) 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”), and the giving of
such Early Conversion
Notice shall
constitute an Additional Termination Event as provided in this
clause (i);
(B)
upon receipt of any Early Conversion
Notice, Dealer shall designate an
Exchange Business Day as an Early Termination Date (which Exchange
Business Day shall be as promptly as reasonably practicable
following the Conversion Date for such Early Conversion) 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 (as defined
below) [minus the “Affected Number of Options” (as
defined in the Base Call Option Confirmation), if any, that relate
to such Affected Convertible Notes]33 and (y)
the Number of Options as of the Conversion Date for such Early
Conversion;
(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;
(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
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)
[Reserved.]
(iii)
Within five (5) Scheduled
Trading Days following any Repayment Event (as defined below),
Counterparty may 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 any such Repayment Notice
shall contain an acknowledgement by Counterparty of its
responsibilities under applicable securities laws, and in
particular Section 9 and Section 10(b) of the Exchange Act and the
rules and regulations thereunder, in respect of the delivery of
such Repayment Notice and shall remake the representation set forth
in Section 8(f) hereof as of the date of such Repayment Notice.
[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]34. The receipt by Dealer from
Counterparty of any Repayment Notice shall constitute an Additional
Termination Event as provided in this Section 9(h)(iii).
Upon receipt of any such Repayment Notice, Dealer shall designate
an Exchange Business Day following receipt of such Repayment Notice
(which Exchange Business Day shall be on or as promptly as
reasonably practicable after the related repurchase settlement date
for the relevant repayment event) 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)]35, 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, (3) no
adjustments to the Conversion Rate have occurred pursuant to an
Excluded Provision, (4) the corresponding Convertible Notes remain
outstanding, (5) the relevant Repayment and any conversions,
adjustments, agreements, payments, deliveries or acquisitions by or
on behalf of Counterparty leading thereto had not occurred and (6)
the terminated portion of the Transaction were the sole Affected
Transaction. “Repayment
Event” means that (i) any Convertible Notes are
repurchased or redeemed (whether in connection with or as a result
of a fundamental change, howsoever defined, or for any other
reason) by Counterparty or any of its subsidiaries, (ii) any
Convertible Notes are delivered to Counterparty in exchange for
delivery of any property or assets of Counterparty or any of its
subsidiaries (howsoever described), (iii) any principal of any of
the Convertible Notes is repaid prior to the final maturity date of
the Convertible Notes, 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” (as defined in the Indenture) or
any combination thereof) pursuant to the terms of the Indenture
shall not constitute a Repayment Event.
(h)
Amendments to
Equity Definitions.
(i)
Section 11.2(e)(vii) of the
Equity Definitions is hereby amended by deleting the words “a
diluting or concentrative” and replacing them with the words
“a material” and adding the phrase “or the
Options, as a result of a corporate event involving the
Issuer” at the end of the sentence.
(ii)
Section 12.1(d) of the Equity
Definitions is hereby amended by replacing “10%” with
“20%” in the third line thereof and by replacing all
references to “voting shares” therein with
“Shares”.
(iii)
Section 12.6(a)(ii) of the
Equity Definitions is hereby amended by (1) inserting
“(1)” immediately following the word
“means” in the first line thereof and (2) inserting
immediately prior to the semi-colon at the end of subsection (B)
thereof the following words: “or (2) the occurrence of any of
the events specified in Section 5(a)(vii)(1) through (9) of the
ISDA Master Agreement with respect to that
Issuer”.
(iv)
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.
(i)
No Netting or
Set-off. The provisions of Section 2(c) of the Agreement
shall not apply to the Transaction. Each party waives any and all
rights it may have to set-off delivery or payment obligations it
owes to the other party under the Transaction against any delivery
or payment obligations owed to it by the other party under any
other agreement between the parties hereto, by operation of law or
otherwise.
(k)
Waiver of Jury
Trial. Each party waives, to the fullest extent permitted by
applicable law, any right it may have to a trial by jury in respect
of any suit, action or proceeding relating to the Transaction. Each
party (i) certifies that no representative, agent or attorney of
either party has represented, expressly or otherwise, that such
other party would not, in the event of such a suit, action or
proceeding, seek to enforce the foregoing waiver and (ii)
acknowledges that it and the other party have been induced to enter
into the Transaction, as applicable, by, among other things, the
mutual waivers and certifications provided herein.
(l)
Registration.
Counterparty hereby agrees that if, in the good faith reasonable
judgment of Dealer, based on the advice of counsel, the Shares
(“Hedge Shares”)
acquired by Dealer for the purpose of effecting a commercially
reasonable hedge of its obligations pursuant to the Transaction
cannot be sold in the public market by Dealer without registration
under the Securities Act, Counterparty shall, at its election made
in its sole discretion, 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 satisfactory to
Dealer, substantially in the form of an underwriting agreement for
a registered secondary offering of similar size (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, Counterparty will use its best
efforts to enter into a private placement agreement substantially
similar to private placement purchase agreements customary for
private placements of equity securities of similar size, in form
and substance 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 of similar size), 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.
(m)
Tax
Disclosure. Effective from the date of commencement of
discussions concerning the Transaction, Counterparty and each of
its employees, representatives, or other agents may disclose to any
and all persons, without limitation of any kind, the tax treatment
and tax structure of the Transaction and all materials of any kind
(including opinions or other tax analyses) that are provided to
Counterparty relating to such tax treatment and tax
structure.
(n)
Right to
Extend. Dealer may postpone or add, in whole or in part, any
Valid Day or Valid Days during the Settlement Averaging Period or
any other date of valuation, payment or delivery by Dealer, with
respect to some or all of the Options hereunder, if Dealer
reasonably determines, in its discretion, based on the advice of
counsel in the case of clause (ii) below, 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 or
(ii) to enable Dealer to effect purchases of Shares in
connection with its 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
(provided that such
policies and procedures have been adopted by Dealer in good faith
and are generally applicable in similar situations and applied in a
non-discriminatory manner); provided that no such Valid Day or
other date of valuation, payment or delivery may be postponed or
added more than 50 Valid Days after the original Valid Day or other
date of valuation, payment or delivery, as the case may
be.
(o)
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
shareholders 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.
(p)
Securities
Contract; Swap Agreement. Each of Dealer and Counterparty
agrees and acknowledges that Dealer is a “financial
institution,” “swap participant” and
“financial participant” within the meaning of Sections
101(22), 101(53C) and 101(22A) of the Bankruptcy Code. The parties
hereto further agree and acknowledge (A) that this Confirmation is
(i) a “securities contract,” as such term is defined in
Section 741(7) of the Bankruptcy Code, with respect to which each
payment and delivery hereunder or in connection herewith is a
“termination value,” “payment amount” or
“other transfer obligation” within the meaning of
Section 362 of the Bankruptcy Code and a “settlement
payment” within the meaning of Section 546 of the Bankruptcy
Code, and (ii) a “swap agreement,” as such term is
defined in Section 101(53B) of the Bankruptcy Code, with respect to
which each payment and delivery hereunder or in connection herewith
is a “termination value,” “payment amount”
or “other transfer obligation” within the meaning of
Section 362 of the Bankruptcy Code and a “transfer”
within the meaning of Section 546 of the Bankruptcy Code, and (B)
that Dealer is entitled to the protections afforded by, among other
sections, Sections 362(b)(6), 362(b)(17), 362(b)(27), 362(o),
546(e), 546(g), 546(j), 548(d)(2), 555, 560 and 561 of the
Bankruptcy Code.
(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 weighted average of the types and amounts of consideration
received by holders of Shares upon consummation of 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 any event at least
one Exchange Business Day prior to the relevant Adjustment Notice
Deadline) 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 (other than a
Potential Adjustment in respect of the Dilution Adjustment
Provisions set forth in Section [14.04(b)]36 or
Section [14.04(d)]37 of the
Indenture) or Merger Event and (B) promptly following any such
adjustment, Counterparty shall give Dealer written notice of the
details of such adjustment. The “Adjustment Notice Deadline” means
(i) for any Potential Adjustment in respect of the Dilution
Adjustment Provision set forth in
Section [14.04(a)]38 of the Indenture, the relevant
“Ex-Dividend Date” (as such term is defined in the
Indenture) or “Effective Date” (as such term is defined
in the Indenture), as the case may be, (ii) for any Potential
Adjustment in respect of the Dilution Adjustment Provision in the
first formula set forth in Section [14.04(c)]39 of the Indenture, the first
“Trading Day” (as such term is defined in the
Indenture) of the period referred to in the definition of
“SP0” in such
formula, (iii) for any Potential Adjustment in respect of the
Dilution Adjustment Provision in the second formula set forth in
Section [14.04(c)]40 of the Indenture, the first
“Trading Day” (as such term is defined in the
Indenture) of the “Valuation Period” (as such term is
defined in the Indenture), (iv) for any Potential Adjustment
in respect of the Dilution Adjustment Provision set forth in
Section [14.04(e)]41 of the Indenture, the first
“Trading Day” (as such term is defined in the
Indenture) of the period referred to in the definition of
“SP1’” in
the formula in such Section, and (v) for any Merger Event, the
effective date of such Merger Event (or, if earlier, the first day
of any valuation or similar period in respect of such Merger
Event).
(r)
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)).
(s)
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.
(t)
Early
Unwind. In the event
the sale of the [“Initial Securities”][“Option
Securities”] (as defined in the Purchase Agreement (the
“Purchase
Agreement”) dated as of August [_____], 2025, among
Counterparty and [●] and [●] as representatives of the
Initial Purchasers party thereto (the “Initial Purchasers”)) is not
consummated with the Initial Purchasers for any reason, or
Counterparty fails to deliver to Dealer opinions of counsel as
required pursuant to Section 9(a), 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.
(u)
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.
(v)
Other Adjustments
Pursuant to the Equity Definitions. Notwithstanding anything
to the contrary in this Confirmation, solely for the purpose of
adjusting the Cap Price pursuant to this Section 9(w), the terms
“Merger Event,” “Tender Offer” and
“Potential Adjustment Event” shall each have the
meanings assigned to such term in the Equity Definitions (in the
case of the definition of “Tender Offer,” as amended by
Section 9(i)(ii) above, and in the case of the definition of
“Potential Adjustment Event”, as amended by Section
9(i)(i) above), and upon the occurrence of a Merger Date, the
occurrence of a Tender Offer Date, or declaration by Counterparty
of the terms of any Potential Adjustment Event, respectively, as
such terms are defined in the Equity Definitions, the Calculation
Agent shall determine whether such occurrence or declaration, as
applicable, has had a material economic effect on the Transaction
and, if so, shall, adjust the Cap Price to preserve the fair value
of the Options; provided
that (w) solely in the case of a Potential Adjustment Event
pursuant Section 11.2(e)(i), (ii)(A) or (iv), no adjustments will
be made to account solely for changes in volatility, expected
dividends, stock loan rate or liquidity relative to the relevant
Shares, (x) the parties agree that Exempted Repurchases shall not
be considered Potential Adjustment Events, and (y) in no event
shall the Cap Price be less than the Strike Price.
“Exempted
Repurchase” means any (1) open market Share repurchase
at prevailing market prices (including, without limitation, any
discount to average VWAP prices), (2) any privately negotiated
Share repurchases entered into outside of an exchange or (3) Share
repurchase through a dealer pursuant to accelerated share
repurchases, forward contracts or similar transactions that is
entered into at prevailing market prices (including, without
limitation, any discount to average VWAP prices) and in accordance
with customary market terms for transactions of such type to
repurchase the Shares, so long as the aggregate of such Exempted
Repurchase transactions described in clauses (1), (2) and (3) above
would not exceed 20% of the number of
Shares outstanding as of the Trade Date, as determined by
Calculation Agent in a commercially reasonable manner and as
adjusted by the Calculation Agent to account for any subdivision or
combination with respect to the Shares.
(w)
Tax
Matters.
(i)
Withholding Tax Imposed on Payments to
Non-U.S. Counterparties under the United States Foreign Account Tax
Compliance Provisions of the HIRE Act. “Indemnifiable Tax,” as defined in
Section 14 of the Agreement, shall not include any U.S. federal
withholding tax imposed or collected pursuant to Sections 1471
through 1474 of the Code, 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) of the Agreement.
(ii)
To the extent that either
party is not an adhering party to the ISDA 2015 Section 871(m)
Protocol published by the International Swaps and Derivatives
Association, Inc. on November 2, 2015 and available at
▇▇▇.▇▇▇▇.▇▇▇, as may be amended, supplemented, replaced or
superseded from time to time (the “871(m) Protocol”), Dealer and
Counterparty hereby agree that the provisions and amendments
contained in the Attachment to the 871(m) Protocol are incorporated
into and apply to the Agreement with respect to this Transaction as
if set forth in full herein. If there is any inconsistency between
this provision and a provision in any other agreement executed
between the parties to which this Transaction relates, this
provision shall prevail unless such other agreement expressly
overrides the provisions of the 871(m) Protocol. Dealer and
Counterparty further agree that, solely for purposes of applying
such provisions and amendments to the Agreement with respect to
this Transaction, references to “each Covered Master
Agreement” in the 871(m) Protocol will be deemed to be
references to the Agreement with respect to this Transaction, and
references to the “Implementation Date” in the 871(m)
Protocol will be deemed to be references to the Trade Date of this
Transaction.
(iii)
Tax Documentation. For the purposes of
Sections 4(a)(i) and 4(a)(ii) of the Agreement, Dealer shall
provide to Counterparty a valid U.S. Internal Revenue Service Form
[W-9]42, or any successor thereto, and
Counterparty shall provide to Dealer a valid U.S. Internal Revenue
Service Form [W-8BEN-E]43, or any successor thereto, (i) on or
before the date of execution of this Confirmation, (ii) promptly
upon learning that any such tax form previously provided by it has
become obsolete or incorrect and (iii) promptly upon
reasonable request of the other party. Additionally, each party
shall, promptly upon request by the other party, provide such other
tax forms and documents reasonably requested by the other
party.
(iv)
Payer Tax Representations. For the
purpose of Section 3(e) of the Agreement, each party makes the
following representation: It is not required by any applicable law,
as modified by the practice of any relevant governmental revenue
authority, of any Relevant Jurisdiction to make any deduction or
withholding for or on account of any Tax from any payment (other
than interest under Section 9(h) of the Agreement to be made by it
to the other party under the Agreement. In making this
representation, it may rely on (i) the accuracy of any
representations made by the other party pursuant to Section 3(f) of
the Agreement, (ii) the satisfaction of the agreement contained in
Section 4(a)(i) or 4(a)(iii) of the Agreement and the accuracy and
effectiveness of any document provided by the other party pursuant
to Section 4(a)(a) or 4(a)(iii) of the Agreement, and (iii) the
satisfaction of the agreement of the other party contained in
Section 4(d) of the Agreement, except that it will not be a breach
of this representation where reliance is placed on clause (ii)
above and the other party does not deliver a form or document under
Section 4(a)(iii) of the Agreement by reason of material
prejudice to its legal or commercial position.
(v)
Payee Tax Representations. For the
purpose of Section 3(f) of the Agreement, the parties make the
representations below:
(A)
Dealer represents to
Counterparty that:
[Insert
Dealer Boilerplate]
(B)
Counterparty represents to
Dealer that it is not a non-resident of Canada for the purposes of
the Income Tax Act
(Canada).
(C)
Counterparty and Dealer each
makes the following representation to the other:
It is fully
eligible for the benefits of the “Business Profits” or
“Industrial and Commercial Profits” provision, as the
case may be, the “Interest” provision,
“Dividends” provision or the “Other Income”
provision (if any) of the Specified Treaty with respect to any
payment described in such provision and received or to be received
by it in connection with this Agreement and no such payment is
attributable to a trade or business carried on by it through a
permanent establishment in the Specified Jurisdiction
“Specified
Treaty” means, with respect to Counterparty and Dealer, the
income tax convention or treaty between the Government of Canada
and the [Dealer to provide
jurisdiction].
“Specified
Jurisdiction” means, with respect to Dealer, [Dealer to provide
jurisdiction].
“Specified
Jurisdiction” means, with respect to Counterparty,
Canada.
(x)
CARES Act. Counterparty represents and
warrants that it and any of its subsidiaries has not applied, and
shall not, until after the first date on which no portion of the
Transaction remains outstanding following any final exercise and
settlement, cancellation or early termination of the Transaction,
apply, for a loan, loan guarantee, direct loan (as that term is
defined in the Coronavirus Aid, Relief and Economic Security Act
(the “CARES
Act”)) or other investment, or to receive any
financial assistance or relief under any program or facility
(collectively “Financial
Assistance”) 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) (i)
requires under applicable law (or any regulation, guidance,
interpretation or other pronouncement of a governmental authority
with jurisdiction for such program or facility) as a condition of
such Financial Assistance, that Counterparty comply with any
requirement not 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, and that Counterparty has not, as of the date
specified in the condition, made a capital distribution or will not
make a capital distribution, or (ii) where the terms of the
Transaction would cause Counterparty to fail to satisfy any
condition for application for or receipt or retention of the
Financial Assistance (collectively “Restricted Financial Assistance”);
provided that Counterparty
or any of its subsidiaries may apply for Restricted Financial
Assistance if Counterparty either (a) determines based on the
advice of outside counsel of national standing that the terms of
the Transaction would not cause Counterparty or any of its
subsidiaries to fail to satisfy any condition for application for
or receipt or retention of such Financial Assistance based on the
terms of the program or facility as of the date of such advice or
(b) delivers to Dealer evidence or other guidance from a
governmental authority with jurisdiction for such program or
facility that the Transaction is permitted under such program or
facility (either by specific reference to the Transaction or by
general reference to transactions with the attributes of the
Transaction in all relevant respects). 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 the Transaction
(either by specific reference to the Transaction or by general
reference to transactions with the attributes of the Transaction in
all relevant respects).
(y)
[Insert Agency Boilerplate,
If Applicable.]
(z)
Counterparts.
This Confirmation may be executed in several counterparts, each of
which shall be deemed an original but all of which together shall
constitute one and the same instrument. Delivery of an executed
signature page by facsimile or electronic transmission (e.g.
“pdf” or “tif”), or any electronic
signature complying with the U.S. federal ESIGN Act of 2000,
Uniform Electronic Transactions Act or other applicable law, e.g.,
▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇, shall be effective as delivery of a manually
executed counterpart hereof.
(aa)
[Conduct
Rules. Each of Dealer and Counterparty acknowledges and
agrees to be bound by the Conduct Rules of the Financial Industry
Regulatory Authority, Inc. applicable to transactions in options,
and further agrees not to violate the position and exercise limits
set forth therein.
(bb)
Risk Disclosure
Statement. Counterparty represents and warrants that it has
received, read and understands the OTC Options Risk Disclosure
Statement and a copy of the most recent disclosure pamphlet
prepared by The Options Clearing Corporation entitled
“Characteristics and Risks of Standardized
Options”.]44
(cc)
[U.S. Resolution
Stay Protocol. The parties acknowledge and agree that (i) to
the extent that prior to the date hereof both parties have adhered
to the 2018 ISDA U.S. Resolution Stay Protocol (the
“Protocol”), the
terms of the Protocol are incorporated into and form a part of the
Agreement, and for such purposes the Agreement shall be deemed a
Protocol Covered Agreement, Dealer shall be deemed a Regulated
Entity and Counterparty shall be deemed an Adhering Party; (ii) to
the extent that prior to the date hereof the parties have executed
a separate agreement the effect of which is to amend the qualified
financial contracts between them to conform with the requirements
of the QFC Stay Rules (the “Bilateral Agreement”), the terms
of the Bilateral Agreement are incorporated into and form a part of
the Agreement, and for such purposes the Agreement shall be deemed
a Covered Agreement, Dealer shall be deemed a Covered Entity and
Counterparty shall be deemed a Counterparty Entity; or (iii) if
clause (i) and clause (ii) do not apply, the terms of Section 1 and
Section 2 and the related defined terms (together, the
“Bilateral
Terms”) of the form of bilateral template entitled
“Full-Length Omnibus (for use between U.S. G-SIBs and
Corporate Groups)” published by ISDA on November 2, 2018
(currently available on the 2018 ISDA U.S. Resolution Stay Protocol
page at ▇▇▇.▇▇▇▇.▇▇▇ and, a copy of which is available upon
request), the effect of which is to amend the qualified financial
contracts between the parties thereto to conform with the
requirements of the QFC Stay Rules, are hereby incorporated into
and form a part of the Agreement, and for such purposes the
Agreement shall be deemed a “Covered Agreement,” Dealer
shall be deemed a “Covered Entity” and Counterparty
shall be deemed a “Counterparty Entity.” In the event
that, after the date of the Agreement, both parties hereto become
adhering parties to the Protocol, the terms of the Protocol will
replace the terms of this paragraph. In the event of any
inconsistencies between the Agreement and the terms of the
Protocol, the Bilateral Agreement or the Bilateral Terms (each, the
“QFC Stay
Terms”), as applicable, the QFC Stay Terms will
govern. Terms used in this paragraph without definition shall have
the meanings assigned to them under the QFC Stay Rules. For
purposes of this paragraph, references to “the
Agreement” include any related credit enhancements entered
into between the parties or provided by one to the other. In
addition, the parties agree that the terms of this paragraph shall
be incorporated into any related covered affiliate credit
enhancements, with all references to Dealer replaced by references
to the covered affiliate support provider. “QFC Stay Rules” means the
regulations codified at 12 C.F.R. 252.2, 252.81–8, 12 C.F.R.
382.1-7 and 12 C.F.R. 47.1-8, which, subject to limited exceptions,
require an express recognition of the stay-and-transfer powers of
the FDIC under the Federal Deposit Insurance Act and the Orderly
Liquidation Authority under Title II of the ▇▇▇▇ ▇▇▇▇▇ Wall Street
Reform and Consumer Protection Act and the override of default
rights related directly or indirectly to the entry of an affiliate
into certain insolvency proceedings and any restrictions on the
transfer of any covered affiliate credit enhancements.]45
[Canadian
Representation Letters. Counterparty agrees to deliver to
Dealer, prior to the Effective Date, a duly completed and executed
copy of each of (i) Canadian Representation Letter #1 (Trade
Reporting and Other Obligations), as published by the International
Swaps and Derivatives Association, Inc. on March 23, 2016 and
available at ▇▇▇.▇▇▇▇.▇▇▇ and (ii) Canadian Representation Letter
#2 (Business Conduct Rule), as published by the International Swaps
and Derivatives Association, Inc. on February 12, 2024 and
available at ▇▇▇.▇▇▇▇.▇▇▇.]46
1 Include in
the Base Call Option Confirmation.
2 Include in
the Base Call Option Confirmation.
3 Include in
the Additional Call Option Confirmation.
4 Include in
the Base Call Option Confirmation.
5 Include in
the Additional Call Option Confirmation.
6 Insert if
Indenture is not completed at the time of the
Confirmation.
7 Include in
the Base Call Option Confirmation. Include in the Additional Call
Option Confirmation if it is executed before closing of the base
deal.
8 Include in
the Additional Call Option Confirmation, but only if the Additional
Call Option Confirmation is executed after closing of the base
deal.
9 Include
cross-reference to Indenture section(s) permitting amendments
without holder consent to conform the Indenture to the Description
of Notes
10 Include
cross-reference to Indenture section(s) relating to Merger Events
and Reference Property.
11 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.
12 Insert the
initial Conversion Rate for the Convertible
Notes.
13 Include
cross-reference to Indenture section(s) containing discretionary
adjustments to the Conversion Rate by
Counterparty.
14 Include
cross-reference to Indenture section(s) dealing with make-whole
adjustments to the Conversion Rate.
15 Include
cross-reference to Indenture section(s) setting forth the
requirements for conversion of the Convertible
Notes.
16 Banks to
confirm
17 To be the
observation period under the note
18 To be the
observation period under the notes + 1
19 Include
cross-reference to provision in the Indenture for pass-through of
distributed property, at the same time as it is received by holders
of the Shares, in lieu of a Conversion Rate
adjustment.
20 Include
cross-reference to provision in the Indenture for pass-through of
cash, at the same time as it is received by holders of the Shares,
in lieu of a Conversion Rate adjustment.
21 Include
cross-reference to Indenture section(s) providing for adjustments
where a Conversion Rate adjustment occurs during a period over
which Last Reported Sale Prices, Daily VWAPs, Daily Conversion
Value or Daily Settlement Amounts are
calculated.
22 Include
cross-reference to Indenture section(s) relating to Reference
Property.
23 Include
cross-reference to Indenture section(s) providing for an adjustment
to the Conversion Rate in connection with a below-market rights,
options or warrants offering.
24 Include
cross-reference to Indenture section(s) providing for an adjustment
to the Conversion Rate in connection with distributions of
distributed property.
25 Include
cross-reference to Indenture section(s) providing for an adjustment
to the Conversion Rate in connection with a below-market rights,
options or warrants offering.
26 Include
cross-reference to provision in the Indenture for pass-through of
distributed property, at the same time as it is received by holders
of the Shares, in lieu of a Conversion Rate
adjustment.
27 Include
cross-reference to Indenture sections containing anti-dilution
adjustments to the Conversion Rate.
28 Include
cross-reference to Indenture section providing for adjustments
where a Conversion Rate adjustment occurs during a period over
which Last Reported Sale Prices, Daily VWAPs, Daily Conversion
Values or Daily Settlement Amounts are
calculated.
29 Include
cross-reference to Indenture section describing consequences of
Reference Property.
30 Include
cross-reference to Indenture section describing consequences of
tender offers.
31 Insert the
number of Shares outstanding that would cause the current position
in the Shares underlying the Transaction of the Dealer with the
highest Applicable Percentage (including the number of Shares
underlying any additional transaction if the greenshoe is exercised
in full) to increase by 0.5%.
32 Insert the
number of Shares that, if repurchased, would cause the current
position in the Shares underlying the Transaction of the Dealer
with the highest Applicable Percentage (including the number of
Shares underlying any additional transaction if the greenshoe is
exercised in full) to increase by a further 0.5% from the threshold
for the first Repurchase Notice.
33 Include in
Additional Call Option Confirmation only.
34 Insert for
Additional Call Option Confirmation.
35 Insert for
Additional Call Option Confirmation.
36 Include
cross-reference to Indenture section(s) providing for an adjustment
to the Conversion Rate in connection with a below-market rights,
options or warrants offering.
37 Include
cross-reference to provision in the Indenture for pass-through of
cash, at the same time as it is received by holders of the Shares,
in lieu of a Conversion Rate adjustment.
38 Include
cross-reference to Indenture section(s) providing for an adjustment
to the Conversion Rate in connection with a share distribution,
share split and share combination.
39 Include
cross-reference to provision in the Indenture for pass-through of
distributed property, at the same time as it is received by holders
of the Shares, in lieu of a Conversion Rate
adjustment.
40 Include
cross-reference to provision in the Indenture for pass-through of
distributed property, at the same time as it is received by holders
of the Shares, in lieu of a Conversion Rate
adjustment.
41 Include
cross-reference to Indenture section describing consequences of
tender offers.
42 To be
modified for Dealers as appropriate.
43 To be
confirmed
44 Insert if
applicable.
45 Update as
necessary.
Please confirm
that the foregoing correctly sets forth the terms of our agreement
by executing this Confirmation and returning it to
Dealer.
Very truly
yours,
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[Dealer]
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By:
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Name:
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Title:
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Accepted and
confirmed
as of the Trade
Date:
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▇▇▇▇▇▇▇ Mines Corp.
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By:
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Name:
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Title:
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[Signature Page to [Base][Additional] Capped
Call Confirmation]
1622646275.2