Insert Dealer Name]1 [Insert Dealer Address]

Exhibit 10.1

[Insert Dealer Name]¹

 

[Insert Dealer Address]

 

[__________], 2025

 

▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,

San Francisco, California 94107

Attention:             ▇▇▇▇ ▇▇▇▇▇▇▇▇, Chief Financial Officer

Telephone No.:     (▇▇▇) ▇▇▇-▇▇▇▇

 

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”) and DoorDash, Inc. (“Counterparty”) as of the Trade Date specified below (the “Transaction”). This letter agreement constitutes a “Confirmation” as referred to in the ISDA Master Agreement specified below. Each party further agrees that this Confirmation together with the Agreement evidence a complete binding agreement between Counterparty and Dealer as to the subject matter and terms of the Transaction to which this Confirmation relates, and shall supersede all prior or contemporaneous written or oral communications with respect thereto. This Confirmation shall serve as the final documentation for the Transaction.

 

The definitions and provisions contained in the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”), as published by the International Swaps and Derivatives Association, Inc. (“ISDA”) are incorporated into this Confirmation. In the event of any inconsistency between the Equity Definitions and this Confirmation, this Confirmation shall govern. Certain defined terms used herein are based on terms that are defined in the Offering Memorandum dated May [__], 2025 (the “Offering Memorandum”) relating to the [___]% Convertible Senior Notes due 2030 (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]² an aggregate principal amount of USD [__________] [if and to the extent that]³[pursuant to the exercise by] ⁴ the Initial Purchasers (as defined herein) [exercise]⁵[of]⁶ their option to purchase additional Convertible Notes pursuant to the Purchase Agreement (as defined herein)] [as increased by an aggregate principal amount of USD [__________] in connection with the exercise by the Initial Purchasers (as defined herein) of their option to purchase additional Convertible Notes pursuant to the Purchase Agreement (as defined herein)] pursuant to an Indenture [to be]⁷ dated May [__], 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, in each case, 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]⁸ [Indenture as executed]⁹. 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 pursuant to (x) Section [8.01(I)]¹⁰ of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of the Convertible Notes in the Offering Memorandum or (y) Section [5.09]¹¹ of the Indenture, subject, in the case of this clause (y), to the second paragraph under “Method of Adjustment” in Section 3 hereof), any such amendment or supplement will be disregarded for purposes of this Confirmation unless the parties agree otherwise in writing.

 

¹ Include Dealer name, address and, if applicable, logo.

² Include in the Base Call Option Confirmation.

³ Include in the Base Call Option Confirmation.

⁴ Include in the Additional Call Option Confirmation.

⁵ Include in the Base Call Option Confirmation.

⁶ Include in the Additional Call Option Confirmation.

⁷ Insert if Indenture is not completed at the time of the Confirmation.

⁸ Include in the Base Call Option Confirmation.  Include in the Additional Call Option Confirmation if it is executed before closing of the base deal.

⁹ Include in the Additional Call Option Confirmation, but only if the Additional Call Option Confirmation is executed after closing of the base deal.

¹⁰ Include cross-reference to Indenture section permitting amendments without holder consent to conform the Indenture to the Description of Notes.

¹¹ Include cross-reference to Indenture section governing common stock change events.

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.

 

 

 

¹² Include in the Base Call Option Confirmation.

¹³ Include in the Additional Call Option Confirmation.

¹⁴ 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.

¹⁵ Insert the initial Conversion Rate for the Convertible Notes.

¹⁶ Include cross-reference to Indenture section(s) containing discretionary adjustments to the Conversion Rate by Counterparty.

¹⁷ Include cross-reference to Indenture section(s) governing make-whole adjustments to the Conversion Rate.

¹⁸ Include cross-reference to Indenture section(s) describing the right to convert

¹⁹ Include cross-reference to section of the Indenture containing provisions for exchange in lieu of conversion.

²⁰ To match the free convertibility date specified in the Convertible Notes.

²¹ To match the Maturity Date of the Convertible Notes.

²² Include for Additional Call Option Confirmation only.

²³ Insert for Additional Call Option Confirmation only.

²⁴ Insert for Additional Call Option Confirmation only.

²⁵ Include cross-reference to section of the Indenture containing provisions for combination settlement of the Convertible Notes.

²⁶ Include cross-reference to section of the Indenture containing provisions for combination settlement of the Convertible Notes.

²⁷ Include cross-reference to section of the Indenture containing provisions for cash settlement of the Convertible Notes.

 

²⁸ 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.

²⁹ 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.

³⁰ 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, Daily Cash Amount or Daily Share Amounts are calculated.

³¹ Include cross-reference to Indenture section relating to common stock change events.

³² Include cross-reference to Indenture section providing for an adjustment to the Conversion Rate in connection with a below-market rights, options or warrants offering.

³³ Include cross-reference to Indenture section providing for an adjustment to the Conversion Rate in connection with distributions of distributed property.

³⁴ Include cross-reference to Indenture section providing for an adjustment to the Conversion Rate in connection with a below-market rights, options or warrants offering.

³⁵ Include cross-reference to Indenture section providing for an adjustment to the Conversion Rate in connection with distributions of distributed property.

³⁶ Include cross-references to Indenture sections containing anti-dilution adjustments to the Conversion Rate.

³⁷ 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, Daily Cash Amount or Daily Share Amounts are calculated.

³⁸ Include cross-reference to Indenture section describing consequences of common stock change events.

³⁹ Include cross-reference to Indenture section describing consequences of tender offers.

⁴⁰ Include cross-reference to Indenture section describing consequences of common stock change events.

 

Dealer, unless an Event of Default has occurred and is continuing pursuant to Section 5(a)(vii) of the Agreement with respect to which Dealer is the Defaulting Party, in which case Counterparty shall have the right to designate a nationally recognized third‑party dealer in over‑the‑counter corporate equity derivatives to replace Dealer as Calculation Agent, and the parties shall work in good faith to execute any appropriate documentation required by such replacement Calculation Agent. All calculations and determinations by the Calculation Agent shall be made in good faith and in a commercially reasonable manner. Following any determination or calculation by the Calculation Agent hereunder (including for the avoidance for doubt, any determination by the Calculation Agent of any adjustment to the terms of the Transaction pursuant to the second paragraph under “Method of Adjustment” in Section 3 above), upon a written request from either party, the Calculation Agent will promptly (but in any event within five Scheduled Trading Days) provide to such party a statement displaying in reasonable detail the basis for such determination or calculation (including, without limitation, any quotations, market data or information from internal or external sources and any assumptions used in making such determination or calculation), as the case may be (it being understood that the Calculation Agent shall not be required to disclose any proprietary models or information or confidential models or information used by it in connection with such determination or calculation, as the case may be).

 

 

(a)          Account for payments to Counterparty:

 

To be provided by Counterparty.

 

Account for delivery of Shares to Counterparty:

 

To be provided by Counterparty.

 

(b)          Account for payments to Dealer:

 

	Bank:	[___]
		[___]
		[___]
	ABA#:	[___]
	SWIFT:	[___]
	Acct Name:	[___]
	Acct No.:	[___]

Account for delivery of Shares from Dealer:

 

To be provided by Dealer.

 

 

(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: [____]

 

[________]

[________]

[________]

 

 

(a)          Address for notices or communications to Counterparty:

 

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San Francisco, California 94107

Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, General Counsel and Secretary

Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇

Email: ***

 

With a copy to:

 

▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇

San Francisco, California 94107

Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇, Chief Financial Officer

Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇

Email: ***

(b)          Address for notices or communications to Dealer:

 

 

 

Counterparty hereby represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:

 

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

 

(b)         Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of (i) the certificate of incorporation or by‑laws (or any equivalent documents) of Counterparty, (ii) any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or (iii) any agreement or instrument filed as an exhibit to Counterparty’s Annual Report on Form 10‑K 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, other than, in the case of clause (iii), any such conflict, breach, default or lien that would not have a material adverse effect on Counterparty’s ability to perform its obligations under the Transaction.

 

(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 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.

 

(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 the knowledge of Counterparty, 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 in connection with the Transaction; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of equity securities by Dealer or any of its affiliates solely as a result of it or any of such affiliates being financial institutions or broker-dealers.

 

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

 

(i)          On and immediately after the Trade Date and the Premium Payment Date, (A) the value of the total assets of Counterparty is greater than the sum of the total liabilities (including contingent liabilities) and the capital (as such terms are defined in Section 154 and Section 244 of the General Corporation Law of the State of Delaware) of Counterparty, (B) the capital of Counterparty is adequate to conduct the business of Counterparty, and Counterparty’s entry into the Transaction will not impair its capital, (C) Counterparty has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature, (D) Counterparty will be able to continue as a going concern, (E) Counterparty is not “insolvent” (as such term is defined under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (F) Counterparty would be able to purchase the number of Shares with respect to the Transaction in compliance with the laws of the jurisdiction of Counterparty’s incorporation (including the adequate surplus and capital requirements of Sections 154 and 160 of the General Corporation Law of the State of Delaware).

 

(j)          [Counterparty has received, read and understands the OTC Options Risk Disclosure Statement provided by Dealer and a copy of the most recent disclosure pamphlet prepared by The Options Clearing Corporation entitled “Characteristics and Risks of Standardized Options”.]⁴¹

 

 

(a)         Opinions. Counterparty shall deliver to Dealer an opinion of counsel, dated as of the Premium Payment Date, with respect to the matters set forth in Sections 8(a) through (d) of this Confirmation. Delivery of such opinion to Dealer shall be a condition precedent for the purpose of Section 2(a)(iii) of the Agreement with respect to each obligation of Dealer under Section 2(a)(i) of the Agreement.

 

(b)       Repurchase Notices. Counterparty shall, on any day on which Counterparty effects any repurchase of Shares or consummates or otherwise executes or engages in any transaction or event (a “Conversion Rate Adjustment Event”) that would lead to an increase in the Conversion Rate (as such term is defined in the Indenture), promptly give Dealer a written notice of such repurchase or Conversion Rate Adjustment Event (a “Repurchase Notice”) on such day if following such repurchase or Conversion Rate Adjustment Event, as the case may be, the number of outstanding Shares as determined on such day is (i) less than [__]⁴²million (in the case of the first such notice) or (ii) thereafter more than [__]⁴³ million less than the number of Shares included in the immediately preceding Repurchase Notice. Counterparty agrees to indemnify and hold harmless Dealer and its affiliates and their respective officers, directors, employees, affiliates, advisors, agents and controlling persons (each, an “Indemnified Person”) from and against any and all losses (including losses relating to Dealer’s commercially reasonable hedging activities as a consequence of becoming, or of the risk of becoming, a Section 16 “insider”, including without limitation, any forbearance from hedging activities or cessation of hedging activities and any losses in connection therewith with respect to the Transaction), claims, damages, judgments, liabilities and reasonable and documented out-of-pocket expenses (including reasonable attorney’s fees), joint or several, which an Indemnified Person may become subject to, as a result of Counterparty’s failure to provide 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 and documented out-of-pocket 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 be liable for any losses, claims, damages or liabilities (or expenses relating thereto) of any Indemnified Person that result from the bad faith, gross negligence or willful misconduct of such Indemnified Person. 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; provided that in no event shall Counterparty be responsible hereunder for any fees and expenses of more than one counsel (in addition to any local counsel) for all Indemnified Persons in connection with any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand in the same jurisdiction. 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.

 

⁴¹ Insert for Dealers who are U.S. broker‑dealers.

⁴² Insert the number of Shares outstanding that would cause Dealer’s current position in the Warrants (including the number of Warrants if the greenshoe is exercised in full, and any warrants under pre-existing warrant transactions with Company) to increase by 0.5%.

⁴³ Insert the number of Shares that, if repurchased, would cause Dealer’s current position in the Warrants (including the number of Warrants if the greenshoe is exercised in full, and any warrants under pre-existing warrant transactions with Company) to increase by a further 0.5% from the threshold for the first Repurchase Notice.

(c)         Regulation M. 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.

 

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

 

(e)          Transfer or Assignment.

 

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

 

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

 

(B)          Any Transfer Options shall only be transferred or assigned to a third party that is a “United States person” (as defined in Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended (the “Code”));

 

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

 

(D)        Dealer will not, as a result of 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 an amount that Dealer would have been required to pay to Counterparty in the absence of such transfer or assignment;

 

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

 

(F)         Without limiting the generality of clause (B), Counterparty shall cause the transferee or assignee 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 clause (D) will not occur upon or after such transfer or assignment; and

 

(G)      Counterparty shall be responsible for all commercially reasonable costs and expenses, including commercially 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 its ultimate parent, or (B) with Counterparty’s prior written consent (such consent not to be unreasonably withheld) 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 or assignment and (2) A‑ by Standard and Poor’s Financial Services LLC or its successor (“S&P”), or A3 by ▇▇▇▇▇’▇ Investor Service, Inc. (“▇▇▇▇▇’▇”) 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 such transfer or assignment under clause (A) or (B) above, (I) an Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer or assignment, (II) at the time of such transfer or assignment either (i) each of Dealer and the transferee or assignee in any such transfer or assignment is a “dealer in securities” within the meaning of Section 475(c)(1) of the Code or (ii) the transfer or assignment does not result in a deemed exchange by Counterparty within the meaning of Section 1001 of the Code; and (III) as a result of any such transfer or assignment (a) Counterparty will not (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Counterparty provided in connection with such transfer or assignment) receive from the transferee or assignee on any payment date or delivery date (after accounting for amounts paid by the transferee or assignee under Section 2(d)(i)(4) of the Agreement as well as any withholding or deduction) an amount or a number of Shares, as applicable, lower than the amount or the number of Shares, as applicable, that Counterparty would have been entitled to receive from Dealer in the absence of such transfer or assignment (except to the extent such lower amount or number results from a change in law after the date of such transfer or assignment), (b) Counterparty will not be required to pay such assignee or transferee on any payment date (taking into account any additional amount required to be paid by Counterparty under Section 2(d)(i)(4) of the Agreement) an amount greater than the amount that Counterparty would have been required to pay to Dealer in the absence of such transfer or assignment, and (c) Dealer shall cause the transferee or assignee to make such 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 clause (III)(a) or (b) will not occur upon or after such transfer or assignment. If at any time at which (A) the Section 16 Percentage exceeds 8.0%, (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(l) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this sentence as if Counterparty were not the Affected Party); provided that in calculating any amount due following such designation, Dealer shall act in good faith and in a commercially reasonable manner and upon written request from Counterparty, Dealer will promptly provide to Counterparty a statement displaying in reasonable detail the basis for such calculation (it being understood that Dealer shall not be required to disclose any proprietary models or information or confidential models or information used by it in connection with such calculation). The “Section 16 Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Dealer and any of its affiliates or any other person subject to aggregation with Dealer for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act, or any “group” (within the meaning of Section 13 of the Exchange Act) of which Dealer is or may be deemed to be a part beneficially owns (within the meaning of Section 13 of the Exchange Act), without duplication, on such day (or, to the extent that for any reason the equivalent calculation under Section 16 of the Exchange Act and the rules and regulations thereunder results in a higher number, such higher number) and (B) the denominator of which is the number of Shares outstanding on such day. The “Option Equity Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the sum of (1) the product of the Number of Options and the Option Entitlement and (2) the aggregate number of Shares underlying any other call option transaction sold by Dealer to Counterparty, and (B) the denominator of which is the number of Shares outstanding. The “Share Amount” as of any day is the number of Shares that Dealer and any person whose ownership position would be aggregated with that of Dealer (Dealer or any such person, a “Dealer Person”) under any law, rule, regulation, regulatory order or organizational documents or contracts of Counterparty that are, in each case, applicable to ownership of Shares (“Applicable Restrictions”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership under any Applicable Restriction, as determined by Dealer in its reasonable discretion. The “Applicable Share Limit” means a number of Shares equal to (A) the minimum number of Shares that could give rise to reporting or registration obligations 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.

 

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

 

(f)       Staggered Settlement. If upon advice of counsel with respect to applicable legal and regulatory requirements, including any requirements relating to Dealer’s commercially reasonable hedging activities hereunder, Dealer reasonably determines that it would not be practicable or advisable to deliver, or to acquire Shares to deliver, any or all of the Shares to be delivered by Dealer on any Settlement Date for the Transaction, Dealer may, by notice to Counterparty on or prior to any Settlement Date (a “Nominal Settlement Date”), elect to deliver the Shares on two or more dates (each, a “Staggered Settlement Date”) as follows:

 

(i)          in such notice, Dealer will specify to Counterparty the related Staggered Settlement Dates (each of which will occur on or prior to such Nominal Settlement Date) and the number of Shares that it will deliver on each Staggered Settlement Date;

 

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

 

(iii)        if the Net Share Settlement or Combination Settlement terms set forth above were to apply to the Nominal Settlement Date, then the Net Share Settlement or Combination Settlement terms, as the case may be, will apply on each Staggered Settlement Date, except that the number of Shares otherwise deliverable pursuant to such terms will be allocated among such Staggered Settlement Dates as specified by Dealer in the notice referred to in clause (i) above.

 

(g)          [Insert relevant Dealer agency language, if any.] [Reserved.]

 

(h)          Adjustments. For the avoidance of doubt, whenever the Calculation Agent is called upon to make an adjustment pursuant to the terms of this Confirmation or the Equity Definitions to take into account the effect of an event, the Calculation Agent shall make such adjustment by reference to the effect of such event on the Hedging Party, assuming that the Hedging Party maintains a commercially reasonable hedge position.

 

(i)          Additional Termination Events.

 

(i)          Notwithstanding anything to the contrary in this Confirmation, if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section [7.01] ⁴⁴ of the Indenture that results in an acceleration of the Convertible Notes pursuant to the terms of the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement.

 

(ii)          Promptly following (x) any repurchase and cancellation of Convertible Notes pursuant to [Section 4.02] ⁴⁵ of the Indenture  or Section [4.03]⁴⁶ of the Indenture, Counterparty shall notify Dealer in writing of such repurchase and cancellation and the number of Convertible Notes so repurchased and cancelled or (y) any repurchase and cancellation of Convertible Notes not described in clause (x) above (including, for the avoidance of doubt, any repurchase and cancellation of convertible notes as a result of any open market repurchase or any exchange of Convertible Notes for cash and/or other securities or other considerations not under the terms of the Indenture)  , Counterparty may notify Dealer in writing of such repurchase and cancellation and the number of Convertible Notes so repurchased and cancelled (any repurchase and cancellation in (x) or (y) above, a “Repayment Event”, and any such notice in (x) or (y), a “Repayment Notice”). Any Repayment Notice delivered pursuant to clause (y) of the immediately preceding sentence shall include a written representation and warranty by Counterparty that, as of the date of such Repayment Notice, Counterparty is not in possession of any material non‑public information regarding Counterparty or the Shares. Notwithstanding anything to the contrary in this Confirmation, the receipt by Dealer from Counterparty of any Repayment Notice within the applicable time period set forth in the second immediately preceding sentence shall constitute an Additional Termination Event as provided in this Section 9(i)(ii). Upon receipt of any such Repayment Notice and the related written representation and warranty, Dealer shall promptly designate an Exchange Business Day following receipt of such Repayment Notice (which in no event shall be earlier than the related settlement date for such Convertible Notes and shall be on or as promptly as reasonably practicable after the later of (x) the related repurchase settlement date for the relevant Repayment Event of Convertible Notes and (y) the date on which Counterparty provides the Repayment Notice described in this Section 9(i)(ii)) as an Early Termination Date with respect to the portion of this Transaction corresponding to a number of Options (the “Repurchase Options”) equal to the lesser of (A) the number of such Convertible Notes specified in such Repayment Notice [minus the number of “Repurchase Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Convertible Notes]⁴⁷ 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 Repurchase Options. Any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to this Transaction and a Number of Options equal to the number of Repurchase Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event, (3) the terminated portion of the Transaction were the sole Affected Transaction, (4) the relevant Repayment Event and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (5) no adjustments to the “Conversion Rate” (as defined in the Indenture) have occurred pursuant to any Excluded Provision and (6) the corresponding Convertible Notes remain outstanding as if the circumstances related to such Repayment Event had not occurred; provided that such payment, in respect of a Repayment Event pursuant to [Section 4.02] ⁴⁸ of the Indenture  or Section [4.03]⁴⁹ of the Indenture, shall not be greater than the product of (A) the number of Repurchase Options, multiplied by (B) the Applicable Percentage, multiplied by (C) the excess of (I) the amount paid by Counterparty per Convertible Note pursuant to [Section 4.02] ⁵⁰ of the Indenture  or Section [4.03]⁵¹ of the Indenture, as the case may be, over (II) the Synthetic Instrument Adjusted Issue Price (determined by the Calculation Agent using the Synthetic Instrument AIP Table set forth in Section 9(i)(iii) as if the date of payment for the Repayment Event were the Conversion Settlement Date). Counterparty acknowledges and agrees that if an Additional Termination Event has occurred under this Section 9(i)(ii), then, subject to “Automatic Exercise of Remaining Repurchase Options After Free Convertibility Date”,  any related Convertible Notes subject to a Repayment Event will be deemed to be cancelled and disregarded and no longer outstanding for all purposes under this Section 9(i)(ii).

 

⁴⁴ Include cross-reference to Indenture section describing events of default.

⁴⁵ Include cross-reference to Indenture section governing repurchase upon a fundamental change.

⁴⁶ Include cross-reference to Indenture section governing optional redemption.

⁴⁷ Include for additional capped call.

⁴⁸ Include cross-reference to Indenture section governing repurchase upon a fundamental change.

⁴⁹ Include cross-reference to Indenture section governing optional redemption.

⁵⁰ Include cross-reference to Indenture section governing repurchase upon a fundamental change.

⁵¹ Include cross-reference to Indenture section governing optional redemption.

(iii)         Notwithstanding anything to the contrary in this Confirmation, the receipt by Dealer from Counterparty, within the applicable time period set forth opposite “Notice of Exercise” in Section 2, of any Notice of Exercise in respect of Options that relate to Convertible Notes as to which additional Shares would be added to the “Conversion Rate” (as defined in the Indenture) pursuant to Section [5.07(A)]⁵² of the Indenture in connection with a “Make‑Whole Fundamental Change” (as defined in the Indenture) (the “Make-Whole Notes”) shall constitute an Additional Termination Event as provided in this Section 9(i)(iii). Upon receipt of any such Notice of Exercise, Dealer shall designate an Exchange Business Day following such Additional Termination Event (which Exchange Business Day shall in no event be earlier than the related settlement date for such Convertible Notes (such settlement date, the “Conversion Settlement Date”)) as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “Make‑Whole Conversion Options”) equal to the lesser of (A) the number of Make Whole Notes (in $1,000 denominations) specified in such Notice of Exercise [minus the number of “Make‑Whole Conversion Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Convertible Notes]⁵³ 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 Make‑Whole Conversion Options. Any payment hereunder with respect to such termination (the “Make‑Whole 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 Make‑Whole Conversion Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (3) the terminated portion of the Transaction were the sole Affected Transaction (and, for the avoidance of doubt, in determining the amount payable pursuant to Section 6 of the Agreement, the Calculation Agent shall not take into account any adjustments to the Option Entitlement that result from corresponding adjustments to the “Conversion Rate” (as defined in the Indenture) pursuant to Section [5.07(A)]⁵⁴ of the Indenture); provided that the Make‑Whole Unwind Payment shall not be greater than the product of (A) the Applicable Percentage, multiplied by (B)  the number of Make‑Whole Conversion Options, multiplied by (C) the excess of (I) the sum of (i) the amount of cash paid to the “Holder” (as such term is defined in the Indenture) per such Make-Whole Note upon conversion of such Make-Whole Notes (including any cash payable as a result of an adjustment to the Conversion Rate pursuant to Section [5.07(A)]⁵⁵ of the Indenture) and (ii) the product of (x) the number of Shares (if any) per Make-Whole Note delivered to the “Holder” (as such term is defined in the Indenture) of such Make-Whole Notes upon conversion of such Make-Whole Notes (including any Shares payable as a result of an adjustment to the Conversion Rate pursuant to Section [5.07(A)]⁵⁶ of the Indenture), multiplied by (y) the Applicable Limit Price on the Conversion Settlement Date over (II) the Synthetic Instrument Adjusted Issue Price as of the Conversion Settlement Date. “Synthetic Instrument Adjusted Issue Price” shall mean the amount determined by the Calculation Agent by reference to the table set forth below corresponding to the relevant Conversion Settlement Date (the “Synthetic Instrument AIP Table”). If the relevant Conversion Settlement Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent by reference to the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices for the Conversion Settlement Dates immediately preceding and immediately following the relevant Conversion Settlement Date.

 

⁵² Include cross-reference to Indenture section describing adjustments to the conversion rate in connection with a make-whole fundamental change.

⁵³ Include for additional capped call.

⁵⁴ Include cross-reference to Indenture section describing adjustments to the conversion rate in connection with a make-whole fundamental change.

⁵⁵ Include cross-reference to Indenture section describing adjustments to the conversion rate in connection with a make-whole fundamental change.

⁵⁶ Include cross-reference to Indenture section describing adjustments to the conversion rate in connection with a make-whole fundamental change.

Counterparty may irrevocably elect in the relevant Notice of Exercise to receive any Make‑Whole Unwind Payment in Shares, in which case, in lieu of making such Make‑Whole Unwind Payment as set forth above, Dealer shall deliver to Counterparty, within a commercially reasonable period of time after such designation as determined by Dealer (taking into account existing liquidity conditions and Dealer’s hedging and hedge unwind activity or settlement activity in connection with such delivery) a number of Shares equal to (A) such Make‑Whole Unwind Payment, divided by (B) a price per Share determined by the Calculation Agent in good faith and in a commercially reasonable manner; provided that, notwithstanding anything to the contrary in Section 9(l), Counterparty may elect to receive a Make‑Whole Unwind Payment in Shares only if Counterparty represents and warrants to Dealer in writing on the date of such election that Counterparty is not in possession of any material non‑public information regarding Counterparty or the Shares.

 

(j)          Amendments to Equity Definitions. Section 12.9(b)(i) of the Equity Definitions is hereby amended by (1) replacing “either party may elect” with “Dealer may elect or, solely in the case of a Change in Law pursuant to clause (Y) of Section 12.9(a)(ii) in connection with which Counterparty is the party that will incur the materially increased cost that gives rise to such Change in Law, so long as Counterparty notifies Dealer of such occurrence within one Exchange Business Day and concurrently provides objective evidence of such occurrence to Dealer and delivers to Dealer a written representation and warranty by Counterparty that, as of the date of such notice, Counterparty is not in possession of any material non‑public information regarding Counterparty or the Shares, Dealer shall elect” and (2) replacing “notice to the other party” with “notice to Counterparty” in the first sentence of such section.

 

(k)        No Setoff. Each party waives any and all rights it may have to set off obligations arising under the Agreement and the Transaction against other obligations between the parties, whether arising under any other agreement, applicable law or otherwise.

 

(l)         Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events. If in respect of the Transaction, an amount is payable by Dealer to Counterparty (i) pursuant to Section 12.7 or Section 12.9 of the Equity Definitions or (ii) pursuant to Section 6(d)(ii) and 6(e) of the Agreement (any such amount, a “Payment Obligation”), Dealer shall satisfy the Payment Obligation by the Share Termination Alternative (as defined below), unless (a) Counterparty gives irrevocable telephonic notice to Dealer, confirmed in writing within one Scheduled Trading Day, no later than 12:00 p.m. (New York City time) on the Merger Date, the Tender Offer Date, the Announcement Date (in the case of Nationalization, Insolvency or Delisting), the Early Termination Date or date of cancellation, as applicable, of its election that the Share Termination Alternative shall not apply, (b) Counterparty remakes the representation set forth in Section 8(f) as of the date of such election and (c) Dealer agrees, in its sole discretion, to such election, in which case the provisions of Section 12.7 or Section 12.9 of the Equity Definitions, or the provisions of Section 6(d)(ii) and 6(e) of the Agreement, as the case may be, shall apply.

 

⁵⁷ To be the maturity date for the Convertible Notes.

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

 

(n)         Registration. Counterparty hereby agrees that if, in the good faith reasonable judgment of Dealer based on the advice of counsel, the Shares (“Hedge Shares”) acquired by Dealer for the purpose of hedging 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, 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 underwritten offering; provided, however, that if Dealer, in its sole reasonable discretion, is not satisfied with access to due diligence materials, the results of its due diligence investigation, or the procedures and documentation for the registered offering referred to above, then clause (ii) or clause (iii) of this paragraph shall apply at the election of Counterparty, (ii) in order to allow Dealer to sell the Hedge Shares in a private placement, enter into a private placement agreement substantially similar to private placement purchase agreements customary for private placements of equity securities, 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 discount from the public market price of the Shares incurred on the sale of Hedge Shares in a private placement), or (iii) purchase the Hedge Shares from Dealer at the then-current market price on such Exchange Business Days, and in the amounts and at such time(s), requested by Dealer.

 

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

 

(p)         Right to Extend. Dealer may postpone or add, in 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 good faith, commercially reasonable judgment (or, in the case of clause (ii) below only, based on the advice of counsel), that such postponement is reasonably necessary or appropriate (i) to preserve Dealer’s commercially reasonable hedging or hedge unwind activity hereunder in light of existing liquidity conditions (but only if there is a material decrease in liquidity relative to Dealer’s expectation on the Trade Date, as determined by Dealer in its commercially reasonable discretion) or (ii) to enable Dealer to effect transactions in 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 no such Valid Day or other date of valuation, payment or delivery may be postponed or added more than 40 Valid Days after the final day in the original Settlement Averaging Period or original other date of valuation, payment or delivery, as the case may be.

 

(q)        Status of Claims in Bankruptcy. Dealer acknowledges and agrees that this Confirmation is not intended to convey to Dealer rights against Counterparty with respect to the Transaction that are senior to the claims of common stockholders of Counterparty in any United States bankruptcy proceedings of Counterparty; provided that nothing herein shall limit or shall be deemed to limit Dealer’s right to pursue remedies in the event of a breach by Counterparty of its obligations and agreements with respect to the Transaction other than during any such bankruptcy proceedings; provided further that nothing herein shall limit or shall be deemed to limit Dealer’s rights in respect of any transactions other than the Transaction.

 

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

 

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

 

(i)        promptly following the public announcement of the results of any election by the holders of Shares with respect to the consideration due upon consummation of any Merger Event, Counterparty shall give Dealer written notice of the weighted average of the types and amounts of consideration that holders of Shares actually receive 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 Provision set forth in Sections  [5.05(A)(ii)]⁵⁸ or Section [5.05(A)(iv)]⁵⁹ of the Indenture), Merger Event or Tender Offer 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 [5.05(A)(i)]⁶⁰ of the Indenture, the relevant “Ex‑Dividend Date” (as such term is defined in the Indenture), (ii) for any Potential Adjustment in respect of the Dilution Adjustment Provision in the first formula set forth in [5.05(A)(iii)]⁶¹ 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 [5.05(A)(iii)]⁶² of the Indenture, the first “Trading Day” (as such term is defined in the Indenture) of the “Spin-Off 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 [5.05(A)(v)]⁶³ of the Indenture, the first Trading Day (as such term is defined in the Indenture) of the period referred to in the definition of “SP’“ 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).

 

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

 

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

 

(v)        Early Unwind. In the event the sale of the [“Firm”]⁶⁴[“Additional”]⁶⁵ Securities” (as defined in the Purchase Agreement (the “Purchase Agreement”), dated as of May [__], 2025, among Counterparty and ▇.▇. ▇▇▇▇▇▇ Securities LLC, as representative 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 1:00 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

 

⁵⁸ Include cross-reference to Indenture section describing adjustments upon distributions of common stock rights, options or warrants entitling holders to subscribe for or purchase undervalued shares of common stock.

⁵⁹ Include cross-reference to Indenture section describing distributions of cash.

⁶⁰ Include cross-reference to Indenture section describing adjustments upon distributions of stock, share splits or share combinations.

⁶¹ Include cross-reference to Indenture section describing adjustments upon distributions of distributed property.

⁶² Include cross-reference to Indenture section describing adjustments upon spin-offs

⁶³ Include cross-reference to Indenture section describing adjustments upon tender offer.

⁶⁴ Include in the Base Call Option Confirmation.

⁶⁵ Insert for Additional Call Option Confirmation only.

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.

 

(w)         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.

 

(x)         [Conduct Rules. Each party acknowledges and agrees to be bound by the Conduct Rules of the Financial Industry Regulatory Authority applicable to transactions in options, and further agrees not to violate the position and exercise limits set forth therein.]⁶⁶[Reserved.]

 

(y)         Financial Assistance. Counterparty acknowledges that the Transaction may constitute a purchase of its equity securities. Counterparty further acknowledges that, pursuant to the provisions of the Coronavirus Aid, Relief and Economic Security Act (the “Cares Act”), the Counterparty will be required to agree to certain time‑bound restrictions on its ability to purchase its equity securities if it receives loans, loan guarantees or direct loans (as that term is defined in the Cares Act) under section 4003(b) of the Cares Act. Counterparty further acknowledges that it may be required to agree to certain timebound restrictions on its ability to purchase its equity securities if it receives loans, loan guarantees or direct loans (as that term is defined in the Cares Act) under programs or facilities established by the Board of Governors of the Federal Reserve System for the purpose of providing liquidity to the financial system. Accordingly, Counterparty represents and warrants that neither it nor any of its subsidiaries has applied, and throughout the term of the Transaction neither it nor any of its subsidiaries shall apply, for a loan, loan guarantee, direct loan (as that term is defined in the Cares Act) or other investment, or to receive any financial assistance or relief (howsoever defined) under any program or facility established in any jurisdiction that (a) is established under applicable law, including without limitation the Cares Act and the Federal Reserve Act, as amended, and (b) requires, as a condition of such loan, loan guarantee, direct loan (as that term is defined in the Cares Act), investment, financial assistance or relief, that the Counterparty agree, attest, certify or warrant that neither it nor any of its subsidiaries has, as of the date specified in such condition, repurchased, or will repurchase, any equity security of Counterparty. 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 established in any jurisdiction, including the U.S. Small Business Administration’s “Paycheck Protection Program”, that (a) is established under applicable law (whether in existence as of the Trade Date or subsequently enacted, adopted or amended), including without limitation the CARES Act and the Federal Reserve Act, as amended, and (b) requires under 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).

 

(z)          Tax Matters.

 

(i)          Payee Tax Representations. For the purpose of Section 3(f) of the Agreement, the parties make the following representations, as applicable:

 

(A)         Counterparty is a corporation created or organized under the laws of Delaware. It is “exempt” within the meaning of Treasury Regulation section 1.6049-4(c) from information reporting on U.S. Internal Revenue Service Form 1099 and backup withholding.

 

⁶⁶ Insert for Dealers who are U.S. broker‑dealers.

(B)          [Dealer is a corporation for U.S. federal income tax purposes created or organized in the United States or under the laws of the United States. It is “exempt” within the meaning of Treasury Regulation section 1.6049-4(c) from information reporting on U.S. Internal Revenue Service Form 1099 and backup withholding.]⁶⁷

 

(ii)          Tax Forms. For the purpose of Section 4(a)(i) of the Agreement:

 

(A)         Counterparty shall provide Dealer with a valid and duly executed U.S. Internal Revenue Service Form W-9, or any successor thereto, (i) on or before the date of execution of this Confirmation, (ii) promptly upon reasonable demand by Dealer and (iii) promptly upon learning that any such tax form previously provided by Counterparty has become obsolete or incorrect.

 

(B)          [Dealer shall provide Counterparty with a valid and duly executed U.S. Internal Revenue Service Form W-9, or any successor thereto, (i) on or before the date of execution of this Confirmation, (ii) promptly upon reasonable demand by Counterparty and (iii) promptly upon learning that any such tax form previously provided by Dealer has become obsolete or incorrect.]⁶⁸

 

(iii)         Foreign Account Tax Compliance 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.

 

(iv)         Section 871(m) Protocol. Dealer and Counterparty hereby agree that the Agreement shall be treated as a Covered Master Agreement (as that term is defined in the 2015 Section 871(m) Protocol published by the International Swaps and Derivatives Association, Inc. on November 2, 2015, as may be amended or modified from time to time (the “2015 Section 871(m) Protocol”)) and the Agreement shall be deemed to have been amended in accordance with the modifications specified in the Attachment to the 2015 Section 871(m) Protocol. If there is any inconsistency between this provision and a provision in any other agreement executed between the parties, this provision shall prevail unless such other agreement expressly overrides the provisions of the 871(m) Protocol.

 

(aa)        [Insert relevant Dealer boilerplate, including QFC language, if any.]

 

⁶⁷ update for specific Dealers.

⁶⁸ update for specific Dealers.

Please confirm that the foregoing correctly sets forth the terms of the agreement between Dealer and Counterparty with respect to the Transaction, by executing this Confirmation or this page hereof as evidence of agreement to such terms and providing the other information requested herein and returning an executed copy to Dealer.

 

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