Exhibit
10.1


 


	
   

  	
  November 10, 2009

  
	
   

  	
   

  
	
  To:

  	
  United
  Rentals, Inc.

  
	
   

  	
  Five Greenwich Office
  Park

  
	
   

  	
  Greenwich, Connecticut
  06831

  
	
   

  	
  Attn:

  	
  Irene Moshouris

  
	
   

  	
   

  	
  Vice President and
  Treasurer

  
	
   

  	
  Telephone:

  	
  [          ]

  
	
   

  	
  Email:

  	
  [          ]

  
	
   

  	
   

  
	
  From:

  	
  [Dealer]

  
	
   

  	
  [Address]

  
	
  Attn:

  	
  [          ]

  
	
   

  	
  Telephone:

  	
  [          ]

  
	
   

  	
  Facsimile:

  	
  [          ]

  
	
   

  	
   

  
	
  Re:

  	
  Base
  Capped Call Transaction

  
	
   

  	
  (Transaction
  Reference Number:
  [          ])

  



 


Ladies and Gentlemen:


 


The purpose of this
communication (this “Confirmation”)
is to set forth the terms and conditions of the above-referenced transaction
entered into on the Trade Date specified below (the “Transaction”) between [          ]
(“Dealer”) and United Rentals, Inc.
(“Counterparty”).  This communication constitutes a “Confirmation”
as referred to in the ISDA Master Agreement specified below.


 


1.     This Confirmation is subject to, and incorporates, the
definitions and provisions of the 2000 ISDA Definitions (including the Annex
thereto) (the “2000 Definitions”)
and the definitions and provisions of the 2002 ISDA Equity Derivatives
Definitions (the “Equity Definitions”,
and together with the 2000 Definitions, the “Definitions”),
in each case as published by the International Swaps and Derivatives
Association, Inc. (“ISDA”).  In the event of any inconsistency between the
2000 Definitions and the Equity Definitions, the Equity Definitions will
govern.  Certain defined terms used
herein have the meanings assigned to them in the Indenture to be dated as of November 17,
2009 between Counterparty and The Bank of New York Mellon as trustee (the “Indenture”) relating to the USD150,000,000
principal amount of 4.00% convertible senior notes due 2015 (the “Convertible Securities”).  In the event of any inconsistency between the
terms defined in the Indenture and this Confirmation, this Confirmation shall
govern.  For the avoidance of doubt,
references herein to sections of the Indenture are based on the draft of the
Indenture most recently reviewed by the parties at the time of execution of
this Confirmation. If any relevant sections of the Indenture are changed, added
or renumbered following execution of this Confirmation but prior to the
execution of the Indenture, the parties will amend this Confirmation in good
faith to preserve the economic intent of the parties based on the draft of the
Indenture so reviewed. The parties further acknowledge that 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 following its execution, any such
amendment will be disregarded for purposes of this Confirmation (other than as
provided in Section 8(a) below) unless the parties agree otherwise in
writing.


 


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 be subject to an
agreement (the “Agreement”) in the
form of the 2002 ISDA Master Agreement (the “ISDA
Form”) as if Dealer and Counterparty had executed an agreement in
such form (without any Schedule but with the elections set forth in this
Confirmation).  For the avoidance of
doubt, the Transaction shall be the only transaction under the Agreement.


 


All provisions contained
in, or incorporated by reference to, the Agreement will govern this
Confirmation except as expressly modified herein.  In the event of any inconsistency between
this Confirmation and either the Definitions or the Agreement, this
Confirmation shall govern.


 

















 


2.     The Transaction constitutes a Share Option Transaction for
purposes of the Equity Definitions.  The
terms of the particular Transaction to which this Confirmation relates are as
follows:


 


	
  General Terms:

  	
   

  
	
   

  	
   

  
	
  Trade Date:

  	
  November 10, 2009

  
	
   

  	
   

  
	
  Effective Date:

  	
  The closing date of the
  initial issuance of the Convertible Securities.

  
	
   

  	
   

  
	
  Option Type:

  	
  Call, as described
  under “Procedures for Exercise” below

  
	
   

  	
   

  
	
  Seller:

  	
  Dealer

  
	
   

  	
   

  
	
  Buyer:

  	
  Counterparty

  
	
   

  	
   

  
	
  Shares:

  	
  The common stock of
  Counterparty, par value USD0.01 per share (Ticker Symbol: “URI”).

  
	
   

  	
   

  
	
  Number of Options:

  	
  The number of
  Convertible Securities in denominations of USD1,000 principal amount issued
  by Counterparty on the closing date for the initial issuance of the
  Convertible Securities

  
	
   

  	
   

  
	
  Number of Shares:

  	
  As of any date, the
  product of the Number of Options, the Conversion Rate and the Applicable
  Percentage.

  
	
   

  	
   

  
	
  Applicable Percentage:

  	
  [   ]%

  
	
   

  	
   

  
	
  Conversion Rate:

  	
  As of any date, the
  “Conversion Rate” (as defined in the Indenture) as of such date but without
  regard to any adjustments to the “Conversion Rate” pursuant to Sections
  12.04(f) or (g) or 12.06(a) of the Indenture.

  
	
   

  	
   

  
	
  Strike Price:

  	
  The “Conversion Price”
  (as defined in the Indenture, but without regard to any adjustments to the
  “Conversion Rate” (as defined in the Indenture) pursuant to Sections
  12.04(f) or (g) or 12.06(a) of the Indenture).

  
	
   

  	
   

  
	
  Cap Price:

  	
  USD15.5575

  
	
   

  	
   

  
	
  Premium:

  	
  USD[          ]
  (Premium per Option
  USD[          ]).

  
	
   

  	
   

  
	
  Premium Payment Date:

  	
  The Effective Date

  
	
   

  	
   

  
	
  Exchange:

  	
  New York Stock Exchange

  
	
   

  	
   

  
	
  Related Exchange:

  	
  All Exchanges

  
	
   

  	
   

  
	
  Procedures for
  Exercise:

  	
   

  
	
   

  	
   

  
	
  Exercise Dates:

  	
  Each Conversion Date.

  
	
   

  	
   

  
	
  Conversion Date:

  	
  Each “Conversion Date”,
  as defined in the Indenture, occurring during the period from and excluding
  the Trade Date to and including the Expiration Date, for Convertible
  Securities, each in denominations of USD1,000 principal amount, that are
  submitted for conversion on such Conversion Date in accordance with the terms
  of the Indenture, excluding Convertible Securities that are Excluded
  Convertible Securities (such Convertible Securities, other than those
  excluded as set forth above, the “Relevant
  Convertible Securities” for such Conversion Date).

  



 


2

















 


	
  Required Exercise on Conversion
  Dates:

  	
  On each Conversion
  Date, a number of Options equal to the number of Relevant Convertible
  Securities for such Conversion Date in denominations of USD1,000 principal
  amount shall be automatically exercised.

  
	
   

  	
   

  
	
  Excluded Convertible
  Securities:

  	
  Convertible Securities
  surrendered for conversion on any date prior to May 15, 2015.

  
	
   

  	
   

  
	
  Expiration Date:

  	
  The second “Scheduled
  Trading Day” immediately preceding the “Maturity Date” (each as defined in
  the Indenture).

  
	
   

  	
   

  
	
  Automatic Exercise:

  	
  Applicable, as provided
  above under “Required Exercise on Conversion Dates”.

  
	
   

  	
   

  
	
  Exercise Notice
  Deadline:

  	
  In respect of any
  exercise of Options hereunder on any Conversion Date, the Exchange Business
  Day immediately following such Conversion Date.

  
	
   

  	
   

  
	
  Notice of Exercise:

  	
  Notwithstanding
  anything to the contrary in the Equity Definitions, Dealer shall have no
  obligation to make any payment or delivery in respect of any exercise of
  Options hereunder unless Counterparty notifies Dealer in writing (which can
  be by e-mail or facsimile) prior to 4:00 PM, New York City time, on the
  Exercise Notice Deadline in respect of such exercise of the number of Options
  being exercised on the relevant Exercise Date. Counterparty acknowledges its
  responsibilities under applicable securities laws, and in particular
  Section 9 and Section 10(b) of the Exchange Act (as defined
  below) and the rules and regulations thereunder, in respect of any
  election of a Cash Percentage with respect to the Convertible Securities.  For the avoidance of doubt, if Counterparty
  fails to give such notice when due in respect of any exercise of Options
  hereunder, Dealer’s obligation to make any payment or delivery in respect of
  such exercise shall be permanently extinguished, and late notice shall not
  cure such failure; provided that
  notwithstanding the foregoing, such notice (and the related exercise of
  Options) shall be effective if given after the Exercise Notice Deadline, but
  prior to 4:00 PM New York City time, on the fifth Exchange Business Day
  following the Exercise Notice Deadline, in which event the Calculation Agent
  shall have the right to adjust the Delivery Obligation as appropriate to
  reflect the additional actual out-of-pocket costs (including, but not limited
  to, market losses actually incurred from hedging mismatches) and reasonable
  out-of-pocket expenses actually incurred by Dealer in connection with its
  hedging activities (including the unwinding of any hedge position) as a
  result of Dealer not having received such notice on or prior to the Exercise
  Notice Deadline; provided  further that the adjusted Delivery
  Obligation described in the preceding proviso can never be less than zero and
  can never require any payment by Counterparty.

  
	
   

  	
   

  
	
  Notice of Cash
  Percentage:

  	
  Counterparty shall
  notify Dealer in writing before 4:00 P.M. (New York City time) on the
  second “Scheduled Trading Day” immediately prior to the 42nd “Scheduled
  Trading Day” preceding the “Maturity Date” (each as defined in the Indenture)
  of the irrevocable election by Counterparty, in accordance with Section 12.03(c) of
  the Indenture, of the “Cash Percentage” (as defined in the Indenture)
  applicable to Relevant Convertible Securities.

  



 


3

















 


	
  Dealer’s Telephone
  Number  and Telex
  and/or Facsimile Number and Contact Details for purpose of Giving Notice:

  	
  To be provided by
  Dealer.

  
	
   

  	
   

  
	
  Settlement
  Terms:

  	
   

  
	
   

  	
   

  
	
  Settlement Date:

  	
  In respect of an
  Exercise Date occurring on a Conversion Date, the settlement date for the
  cash and Shares (if any) to be delivered in respect of the Relevant
  Convertible Securities converted on such Conversion Date pursuant to
  Section 12.03(a) of the Indenture; provided
  that the Settlement Date will not be prior to the Exchange Business Day
  immediately following the date Counterparty provides the Notice of Delivery
  Obligation prior to 4:00 PM, New York City time.

  
	
   

  	
   

  
	
  Delivery Obligation:

  	
  In lieu of the
  obligations set forth in Sections 8.1 and 9.1 of the Equity Definitions, and
  subject to “Notice of Exercise” above, in respect of an Exercise Date occurring
  on a Conversion Date, Dealer will deliver to Counterparty, on the related
  Settlement Date, a number of Shares and/or amount of cash in USD equal to the
  product of (i) the Applicable Percentage and (ii) the aggregate
  number of Shares and/or amount of cash, as the case may be, that Counterparty
  is obligated to deliver to the holder(s) of the Relevant Convertible
  Securities converted on such Conversion Date pursuant to
  Section 12.03(b)(ii) of the Indenture (except that such aggregate number
  of Shares shall be determined without taking into consideration any rounding
  pursuant to Section 12.03(f) of the Indenture and shall be rounded
  down to the nearest whole number) and cash in lieu of fractional Shares, if
  any, resulting from such rounding (the “Convertible
  Obligation”); provided
  that (i) if the Convertible Obligation exceeds the Capped Convertible
  Obligation, then the Delivery Obligation shall be the Capped Convertible
  Obligation; (ii) the Convertible Obligation (and, for the avoidance of
  doubt, the Capped Convertible Obligation) shall be determined excluding any
  Shares and/or cash that Counterparty is obligated to deliver to
  holder(s) of the Relevant Convertible Securities as a result of any
  adjustments to the Conversion Rate pursuant to Sections 12.04(f) or
  (g) or 12.06(a) of the Indenture (and, for the avoidance of doubt,
  the Delivery Obligation shall not include any interest payment on the
  Relevant Convertible Securities that the Counterparty is (or would have been)
  obligated to deliver to holder(s) of the Relevant Convertible Securities
  for such Conversion Date); and (iii) if such exercise relates to the
  conversion of Relevant Convertible Securities in connection with which
  holders thereof are entitled to receive additional Shares and/or cash pursuant
  to the adjustments to the Conversion Rate set forth in
  Section 12.06(a) of the Indenture, then, notwithstanding the
  foregoing, the Delivery Obligation shall include the product of (i) the
  Applicable Percentage and (ii) such additional Shares and/or cash,
  except that the Delivery Obligation shall be capped so that the value of the
  Delivery Obligation per Option (with the value of any Shares included in the
  Delivery Obligation determined by the Calculation Agent using the VWAP Price
  on the last day of the relevant “Observation Period”) does not exceed the
  amount as determined by the Calculation Agent that would be payable by Dealer
  pursuant to Section 6 of the Agreement if such Conversion

  



 


4

















 


	
   

  	
  Date were an Early
  Termination Date resulting from an Additional Termination Event with respect
  to which the Transaction (except that, for purposes of determining such
  amount (x) the Number of Options shall be deemed to be equal to the
  number of Options exercised on such Exercise Date and (y) such amount
  payable will be determined as if Section 12.06(a) of the Indenture
  were deleted) was the sole Affected Transaction and Counterparty was the sole
  Affected Party (determined without regard to Section 8(b) of this
  Confirmation), it being understood that the cap described in this clause
  (iii) is in addition to, and cumulative with, clauses (i) and
  (ii) of this proviso.

  
	
   

  	
   

  
	
  Capped Convertible
  Obligation:

  	
  In respect of an
  Exercise Date occurring on a Conversion Date, the Convertible Obligation that
  would apply if the “VWAP” for each “Trading Day” in the “Observation Period”
  (each as defined in the Indenture) were the lesser of (x) the Cap Price
  and (y) the actual “VWAP” for such Trading Day as defined in the
  Indenture.

  
	
   

  	
   

  
	
  Notice of Delivery
  Obligation:

  	
  No later than 5:00 PM,
  New York City time on the Exchange Business Day immediately following the
  last day of the relevant “Observation Period,” as defined in the Indenture,
  Counterparty shall give Dealer notice of the aggregate number of Shares
  and/or cash comprising the Convertible Obligations for all Relevant
  Convertible Securities (it being understood, for the avoidance of doubt, that
  the requirement of Counterparty to deliver such notice shall not limit
  Counterparty’s obligations with respect to Notice of Exercise or Notice of
  Cash Percentage or Dealer’s obligations with respect to Delivery Obligation,
  each as set forth above, in any way).

  
	
   

  	
   

  
	
  Other Applicable
  Provisions:

  	
  To the extent Dealer is
  obligated to deliver Shares hereunder, the provisions of Sections 9.1(c),
  9.8, 9.9, 9.10, 9.11 (except that the Representation and Agreement contained
  in Section 9.11 of the Equity Definitions shall be modified by excluding
  any representations therein relating to restrictions, obligations, limitations
  or requirements under applicable securities laws arising as a result of the
  fact that Counterparty is the Issuer of the Shares) and 9.12 of the Equity
  Definitions will be applicable as if “Physical Settlement” applied to the
  Transaction.

  
	
   

  	
   

  
	
  Restricted Certificated
  Shares:

  	
  Notwithstanding
  anything to the contrary in the Equity Definitions, Dealer may, in whole or
  in part, deliver Shares required to be delivered to Counterparty hereunder in
  certificated form in lieu of delivery through the Clearance System.  With respect to such certificated Shares,
  the Representation and Agreement contained in Section 9.11 of the Equity
  Definitions shall be modified by deleting the remainder of the provision
  after the word “encumbrance” in the fourth line thereof.  Dealer shall pay the applicable transfer
  fees for such delivery of Shares in certificated form.

  
	
   

  	
   

  
	
  Share
  Adjustments:

  	
   

  
	
   

  	
   

  
	
  Method of Adjustment:

  	
  Notwithstanding Section 11.2 of the Equity
  Definitions, upon the occurrence of any event or condition set forth in
  Sections 12.04(a), (b), (c), (d) or (e) of the Indenture that
  results in an adjustment to the Conversion Price or the Conversion Rate under
  the Convertible Securities pursuant to the terms of the Indenture, the
  Calculation Agent shall make a corresponding adjustment to the terms relevant

  



 


5

















 


	
   

  	
  to the exercise, settlement or payment of the
  Transaction and may adjust the Cap Price as appropriate to account for the
  economic effect on the Transaction of such event or condition; provided that the Cap Price shall not be
  adjusted so that it is less than the Strike Price.  Immediately upon the occurrence of any
  event or condition that results in an adjustment to the Conversion Price or
  Conversion Rate under the Convertible Securities pursuant to the terms of the
  Indenture (an “Adjustment Event”),
  Counterparty shall notify the Calculation Agent of such Adjustment Event; and
  once the adjustments to be made to the terms of the Indenture and the
  Convertible Securities in respect of such Adjustment Event have been
  determined, Counterparty shall immediately notify the Calculation Agent in
  writing of the details of such adjustments.

  
	
   

  	
   

  
	
  Extraordinary
  Events:

  	
   

  
	
   

  	
   

  
	
  Merger Events:

  	
  Notwithstanding Section 12.1(b) of the Equity
  Definitions, a “Merger Event” means the occurrence of any event or condition
  set forth in Section 12.07(a) of the Indenture.

  
	
   

  	
   

  
	
  Consequences of Merger
  Events:

  	
  Notwithstanding Sections 12.2 and 12.3 of the Equity
  Definitions, upon the occurrence of a Merger Event that results in an
  adjustment under the Indenture, (i) the Calculation Agent shall make a
  corresponding adjustment to the terms relevant to the exercise, settlement or
  payment of the Transaction; provided that
  such adjustment shall be made without regard to any adjustment to the
  Conversion Rate pursuant to Sections 12.04(f) or (g) or
  12.06(a) of the Indenture; and provided
  further that if, with respect to a Merger Event, the consideration
  for the Shares includes (or, at the option of a holder of Shares, may
  include) shares of an entity or person not organized under the laws of the
  United States, any State thereof or the District of Columbia, Cancellation
  and Payment (Calculation Agent Determination) shall apply; and (ii) the
  Calculation Agent may adjust the Cap Price as appropriate to account for the
  economic effect on the Transaction of such Merger Event; provided that the Cap Price shall not be
  adjusted so that it is less than the Strike Price.

  
	
   

  	
   

  
	
  Notice of Merger
  Consideration:

  	
  Upon the occurrence of a Merger Event that causes
  the Shares to be converted into the right to receive more than a single type
  of consideration (determined based in part upon any form of stockholder
  election), Counterparty shall reasonably promptly (but, in any event prior to
  the relevant merger date) notify the Calculation Agent of (i) the
  weighted average of the types and amounts of consideration received by the
  holders of Shares entitled to receive cash, securities or other property or
  assets with respect to or in exchange for such Shares in any Merger Event who
  affirmatively make such an election and (ii) the details of the
  adjustment made under the Indenture in respect of such Merger Event.

  
	
   

  	
   

  
	
  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 shall also constitute a Delisting if the Exchange is located
  in the United States and the Shares are not immediately re-listed, re-traded
  or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select
  Market or The

  



 


6

















 


	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NASDAQ Global Market (or their respective
  successors); if the Shares are immediately re-listed, re-traded or re-quoted
  on any such exchange or quotation system, such exchange or quotation system
  shall thereafter be deemed to be the Exchange. For the avoidance of doubt,
  the occurrence of any event that is a Merger Event and would also constitute
  a Delisting shall have the consequences specified for the relevant Merger
  Event.

  
	
   

  	
   

  
	
  Additional Disruption
  Events:

  	
   

  
	
   

  	
   

  
	
   

  	
  (a)  

  	
  Change in Law:

  	
  Applicable

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (b)

  	
  Failure to Deliver:

  	
  Applicable

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (c)

  	
  Insolvency Filing:

  	
  Applicable

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (d)

  	
  Hedging Disruption:

  	
  Applicable

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (e)

  	
  Increased Cost of
  Hedging:

  	
  Applicable

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (f)

  	
  Loss of Stock Borrow:

  	
  Not Applicable

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (g)

  	
  Increased Cost of Stock
  Borrow:

  	
  Not Applicable

  
	
   

  	
   

  	
   

  	
   

  
	
  Hedging Party:

  	
  For all applicable
  Potential Adjustment Events and Extraordinary Events, Dealer

  
	
   

  	
   

  
	
  Determining Party:

  	
  For all applicable
  Extraordinary Events, Dealer

  
	
   

  	
   

  
	
  Non-Reliance:

  	
  Applicable

  
	
   

  	
   

  
	
  Agreements and
  Acknowledgments Regarding Hedging Activities:

  	
  Applicable

  
	
   

  	
   

  
	
  Additional
  Acknowledgments:

  	
  Applicable

  
	
   

  	
   

  
	
  3.   

  	
  Calculation Agent:

  	
  Dealer

  
	
   

  	
   

  	
   

  
	
  4.

  	
  Account Details:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Dealer Payment Instructions:

  	
  [            ]

  
	
   

  	
   

  	
   

  
	
   

  	
  Counterparty Payment Instructions:

  	
  To be provided
  by Counterparty.

  
	
   

  	
   

  	
   

  
	
  5.

  	
  Offices:

  
	
   

  	
   

  
	
   

  	
  The Office of Dealer for the Transaction is: New
  York

  
	
   

  	
   

  
	
  [Dealer]

  	
   

  
	
  [Address]

  	
   

  
	
  Attention:

  	
  [          ]

  
	
  Telephone:

  	
  [          ]

  
	
  Facsimile:

  	
  [          ]

  
	
   

  	
   

  
	
   

  	
  The Office of Counterparty for the Transaction is:
  Not applicable

  
	
   

  	
   

  
	
  6.

  	
  Notices: For purposes of this Confirmation:

  
	
   

  	
   

  
	
   

  	
  Address for notices or communications to Counterparty:

  
	
   

  	
   

  
	
  To:

  	
  United Rentals, Inc.

  
	
   

  	
  Five Greenwich Office Park

  
	
   

  	
  Greenwich, Connecticut 06831

  
	
  Attn:

  	
  Irene Moshouris

  
	
   

  	
  Vice President and Treasurer

  
	
  Telephone:

  	
  [          ]

  
	
  Email:

  	
  [          ]

  
					



 


7
















 


	
   

  	
  Address for notices or communications to Dealer:

  
	
   

  
	
  To:

  	
  [Dealer]

  
	
   

  	
  [Address]

  
	
  Attn:

  	
  [             ]

  
	
  Telephone:

  	
  [             ]

  
	
  Facsimile:

  	
  [             ]

  
			



 


	
  7.

  	
  Representations, Warranties and Agreements:

  



 


(a)   In addition to the representations and warranties
in the Agreement and those contained elsewhere herein, Counterparty represents
and warrants to and for the benefit of, and agrees with, Dealer as follows:


 


(i)        On the Trade Date, and as of the date of
any election by Counterparty of the Share Termination Alternative under (and as
defined in) Section 8(b) below, (A) Counterparty is not aware of
any material nonpublic information regarding Counterparty or the Shares and (B) all
reports and other documents incorporated by reference into the offering document
for the Convertible Securities filed by Counterparty with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended
(the “Exchange Act”) when
considered as a whole (with the more recent such reports and documents deemed
to amend inconsistent statements contained in any earlier such reports and
documents), do not contain any untrue statement of a material fact or any
omission of a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances in which they were
made, not misleading.


 


(ii)       (A) During (x) the period
starting on the first day of an Observation Period applicable to the Relevant
Convertible Securities and ending on the last day of such Observation Period
(the “Settlement Period”) and (y) in
case of an Early Termination Date resulting from an Additional Termination
Event as a result of an Excluded Conversion Event, a period at or about such
Early Termination Date reasonably determined and notified by Dealer to
Counterparty (an “Early Settlement Period”),
the Shares or securities that are convertible into, or exchangeable or
exercisable for Shares, are not, and shall not be, subject to a “restricted
period,” as such term is defined in Regulation M under the Exchange Act (“Regulation M”) and (B) Counterparty
shall not engage in any “distribution,” as such term is defined in Regulation
M, other than a distribution meeting the requirements of the exceptions set
forth in sections 101(b)(10) and 102(b)(7) of Regulation M, until the
second Exchange Business Day immediately following the Settlement Date related
to such Settlement Period (it being understood that Counterparty makes no
representations pursuant to this clause with respect to any action of Dealer or
any Underwriter or their respective affiliates).


 


(iii)      On the Trade Date, during the Settlement
Period and during any Early Settlement Period, neither Counterparty nor any “affiliate”
or “affiliated purchaser” (each as defined in Rule 10b-18 under the
Exchange Act (“Rule 10b-18”))
shall directly or indirectly (including, without limitation, by means of any
cash-settled or other derivative instrument) purchase, offer to purchase, place
any bid or limit order that would effect a purchase of, or commence any tender
offer relating to, any Shares (or an equivalent interest, including a unit of
beneficial interest in a trust or limited partnership or a depository share) or
any security convertible into or exchangeable or exercisable for Shares.


 


(iv)     Without limiting the generality of Section 13.1
of the Equity Definitions, Counterparty acknowledges that Dealer is not making
any representations or warranties with respect to the treatment of the
Transaction under any accounting standards including FASB Statements 128, 133,
149 (each as amended), or 150, EITF Issue No. 00-19, 01-6, 03-6 or 07-5
(or any successor issue statements) or under FASB’s Liabilities &
Equity Project.


 


(v)      Without limiting the generality of Section 3(a)(iii) of
the Agreement, the Transaction will not violate Rule 13e-1 or Rule 13e-4
under the Exchange Act.


 


8

















 


(vi)     Prior to the Trade Date, Counterparty shall
deliver to Dealer a resolution of Counterparty’s board of directors or a committee
thereof authorizing the Transaction and such other certificate or certificates
as Dealer shall reasonably request.


 


(vii)    Counterparty is not entering into this
Confirmation to create actual or apparent trading activity in the Shares (or
any security convertible into or exchangeable for Shares) or to raise or
depress or otherwise manipulate the price of the Shares (or any security
convertible into or exchangeable for Shares) or otherwise in violation of the
Exchange Act.


 


(viii)   Counterparty is not, and after giving effect
to 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.


 


(ix)      On each of the Trade Date and the Premium
Payment Date, Counterparty is not, or will not be, “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 Counterparty would be able to purchase the Shares hereunder in compliance
with the laws of the jurisdiction of its incorporation.


 


(x)       No state or local (including non-U.S.
jurisdictions) law, rule, regulation or regulatory order applicable to the
Shares would give rise to any reporting, consent, registration or other
requirement (including without limitation a requirement to obtain prior
approval from any person or entity) as a result of Dealer or its affiliates
owning or holding (however defined) Shares.


 


(xi)      The representations and warranties of
Counterparty set forth in Section 3 of the Agreement and Section 2 of
the Underwriting Agreement dated as of November 10, 2009 among the
Counterparty and Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Morgan Stanley & Co. and Wells Fargo Securities, LLC Incorporated as representatives
of the Underwriters party thereto (the “Underwriting
Agreement”) are true and correct and are hereby deemed to be
repeated to Dealer as if set forth herein.


 


(xii)     Counterparty understands no obligations of
Dealer to it hereunder will be entitled to the benefit of deposit insurance and
that such obligations will not be guaranteed by any affiliate of Dealer or any
governmental agency.


 


(b)   Each of Dealer and Counterparty agrees and
represents that it is an “eligible contract participant” as defined in Section 1a(12)
of the U.S. Commodity Exchange Act, as amended.


 


(c)   Each of Dealer and Counterparty acknowledges
that the offer and sale of the Transaction to it is intended to be exempt from
registration under the Securities Act of 1933, as amended (the “Securities Act”), by virtue of Section 4(2) thereof.  Accordingly, Counterparty represents and
warrants to Dealer that (i) it has the financial ability to bear the
economic risk of its investment in the Transaction and is able to bear a total
loss of its investment, (ii) it is an “accredited investor” as that term
is defined in Regulation D as promulgated under the Securities Act, (iii) it
is entering into the Transaction for its own account and without a view to the
distribution or resale thereof, and (iv) the assignment, transfer or other
disposition of the Transaction has not been and will not be registered under
the Securities Act and is restricted under this Confirmation, the Securities
Act and state securities laws.


 


(d)   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 that it is the intent of the parties (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,” as such term is defined in Section 741(8) 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


 


9

















 


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,” as such term is defined in Section 101(54) 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(o),546(e), 546(g),
548(d)(2), 555 and 560 of the Bankruptcy Code.


 


(e)   Counterparty shall deliver to Dealer an
opinion of counsel, dated as of the Effective Date and reasonably acceptable to
Dealer in form and substance, with respect to the matters set forth in Section 3(a) of
the Agreement.


 


8.     Other Provisions:


 


(a)   Additional
Termination Events.  The occurrence of (i) an “Event
of Default” with respect to Counterparty under the terms of the Convertible
Securities as set forth in Section 5.01 of the Indenture that results in
principal and interest related to the Convertible Securities being declared
immediately due and payable pursuant to the terms of the Indenture, (ii) an
Amendment Event or (iii) an Excluded Conversion Event shall be an
Additional Termination Event with respect to which the Transaction is the sole
Affected Transaction and Counterparty is the sole Affected Party, and Dealer
shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of
the Agreement; provided that in
the case of an Excluded Conversion Event the Transaction shall be subject to
termination only in respect of a number of Options equal to the number of
Convertible Securities that cease to be outstanding in connection with or as a
result of such Excluded Conversion Event. For the avoidance of doubt, in
determining the amount payable in respect of such Affected Transaction pursuant
to Section 6 of the Agreement in connection with an Excluded Conversion
Event, the Calculation Agent shall assume that (x) the relevant Excluded
Convertible Securities shall not have been converted and remain outstanding,
and (y) in the case of an Induced Conversion, any adjustments, agreements,
additional payments, deliveries or acquisitions by or on behalf of Counterparty
or any affiliate of Counterparty in connection therewith had not occurred.


 


“Amendment Event” means that Counterparty
amends, modifies, supplements, waives or obtains a waiver in respect of any
term of the Indenture or the Convertible Securities governing the principal
amount, coupon, maturity, repurchase obligation of Counterparty, redemption
right of Counterparty, any term relating to conversion of the Convertible
Securities (including changes to the conversion price, conversion settlement
dates or conversion conditions), or any term that would require consent of the
holders of not less than 100% of the principal amount of the Convertible
Securities to amend, in each case without the consent of Dealer.


 


“Excluded Conversion Event” means any
conversion of any Excluded Convertible Securities.


 


“Induced Conversion” means a conversion of
any Excluded Convertible Securities (A) in connection with (x) an
adjustment to the Conversion Rate effected by Counterparty (whether pursuant to
Sections 12.04(f) or (g) of the Indenture or otherwise) that is not
required under the terms of the Indenture or (y) an agreement by
Counterparty with the holder(s) of such Convertible Securities whereby, in
the case of either (x) or (y), the holder(s) of such Convertible
Securities receive upon conversion or pursuant to such agreement, as the case
may be, a payment of cash or delivery of Shares or any other property or item
of value that was not required under the terms of the Indenture or (B) after
having been acquired from a holder of Convertible Securities by or on behalf of
Counterparty or any of its affiliates other than pursuant to a conversion by
such Holder and thereafter converted by or on behalf of Counterparty or any
affiliate of Counterparty.


 


(b)   Alternative
Calculations and Payment on Early Termination and on Certain Extraordinary
Events.  If Dealer shall owe Counterparty any amount
pursuant to “Consequences of Merger Events” above or Sections 12.6, 12.7 or
12.9 of the Equity Definitions or pursuant to Section 6(d)(ii) of the
Agreement (a “Payment Obligation”),
Counterparty shall have the right, in its sole discretion, to require Dealer to
satisfy any such Payment Obligation by the Share Termination Alternative (as
defined below) by giving irrevocable telephonic notice to Dealer, confirmed in
writing within one Scheduled Trading Day, no later than 9:30 A.M. New York
City time on the relevant merger date, Announcement Date, Early Termination
Date or date of cancellation or termination in respect of an Extraordinary
Event, as applicable (“Notice of Share
Termination”); provided
that if Counterparty does not elect to require Dealer to satisfy its Payment
Obligation by the Share Termination Alternative, Dealer shall have the right,
in its sole discretion, to elect to satisfy its Payment Obligation by the Share
Termination Alternative, notwithstanding Counterparty’s failure to elect or


 


10

















 


election to the contrary;
and provided further that
Counterparty shall not have the right to so elect (but, for the avoidance of
doubt, Dealer shall have the right to so elect) in the event of (i) an
Insolvency, a Nationalization or a Merger Event, in each case, in which the
consideration or proceeds to be paid to holders of Shares consists solely of
cash or (ii) an Event of Default in which Counterparty is the Defaulting
Party or a Termination Event in which Counterparty is the Affected Party, which
Event of Default or Termination Event resulted from an event or events within
Counterparty’s control.  Upon such Notice
of Share Termination, the following provisions shall apply on the Scheduled
Trading Day immediately following the relevant merger date, Announcement Date,
Early Termination Date or date of cancellation or termination in respect of an
Extraordinary Event, as applicable:


 


	
  Share Termination
  Alternative:

  	
  Applicable and means
  that Dealer shall deliver to Counterparty the Share Termination Delivery
  Property on the date on which the Payment Obligation would otherwise be due
  pursuant to “Consequences of Merger Events” above, Sections 12.7 or 12.9 of
  the Equity Definitions or Section 6(d)(ii) of the Agreement, as
  applicable, or such later date as the Calculation Agent may reasonably
  determine (the “Share Termination Payment
  Date”), in satisfaction of the Payment Obligation.

  
	
   

  	
   

  
	
  Share Termination
  Delivery Property:

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

  
	
   

  	
   

  
	
  Share Termination Unit
  Price:

  	
  The value of property
  contained in one Share Termination Delivery Unit on the date such Share
  Termination Delivery Units are to be delivered as Share Termination Delivery
  Property, as determined by the Calculation Agent in its discretion by
  commercially reasonable means and notified by the Calculation Agent to Dealer
  at the time of notification of the Payment Obligation.

  
	
   

  	
   

  
	
  Share Termination
  Delivery Unit:

  	
  In the case of a
  Termination Event, Event of Default, Delisting or Additional Disruption
  Event, one Share or, in the case of an Insolvency, Nationalization or Merger
  Event, one Share or a unit consisting of the number or amount of each type of
  property received by a holder of one Share (without consideration of any
  requirement to pay cash or other consideration in lieu of fractional amounts
  of any securities) in such Insolvency, Nationalization or Merger Event, as
  applicable. If such Insolvency, Nationalization or Merger Event involves a
  choice of consideration to be received by holders, such holder shall be
  deemed to have elected to receive the maximum possible amount of cash.

  
	
   

  	
   

  
	
  Failure to Deliver:

  	
  Applicable

  
	
   

  	
   

  
	
  Other applicable
  provisions:

  	
  If Share Termination
  Alternative is applicable, the provisions of Sections 9.8, 9.9, 9.10, 9.11
  (except that the Representation and Agreement contained in Section 9.11
  of the Equity Definitions shall be modified by excluding any representations
  therein relating to restrictions, obligations, limitations or requirements
  under applicable securities laws arising as a result of the fact that
  Counterparty is the issuer of the Shares or any portion of the Share
  Termination Delivery Units) and 9.12 of the Equity Definitions 

  



 


11

















 


	
   

  	
  will be applicable as
  if “Physical Settlement” applied to the Transaction, except that all
  references to “Shares” shall be read as references to “Share Termination
  Delivery Units.”

  



 


The parties hereby agree
that, notwithstanding anything to contrary in this Confirmation, the Agreement
or the Equity Definitions, in the event that an Early Termination Date (whether
as a result of an Event of Default or a Termination Event) occurs or is
designated with respect to the Transaction and, as a result, Counterparty owes
to Dealer an amount calculated under Section 6(e) of the Agreement,
such amount shall be deemed to be zero.


 


(c)   Disposition
of Hedge Shares.  Counterparty hereby agrees
that if, in the good faith reasonable judgment of Dealer, any Shares (the “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: (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 to cover the resale
of such Hedge Shares and (A) enter into an agreement, in form and substance
satisfactory to Dealer, substantially in the form of an underwriting agreement
for a registered offering, (B) provide accountant’s “comfort” letters in
customary form for registered offerings of equity securities, (C) provide
disclosure opinions of nationally recognized outside counsel to Counterparty
reasonably acceptable to Dealer, (D) provide other customary opinions,
certificates and closing documents customary in form for registered offerings
of equity securities and (E) afford Dealer a reasonable opportunity to
conduct a “due diligence” investigation with respect to Counterparty customary
in scope for underwritten offerings of equity securities; 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 Section 8(c) 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,
including customary representations, covenants, blue sky and other governmental
filings and/or registrations, indemnities to Dealer, due diligence rights (for
Dealer or any designated buyer of the Hedge Shares from Dealer), opinions and
certificates and such other documentation as is customary for private
placements agreements, all reasonably acceptable 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 VWAP Price on such Exchange Business Days, and in the
amounts, requested by Dealer.  “VWAP Price” means, on any Exchange Business Day, the per
Share volume-weighted average price as displayed under the heading “Bloomberg
VWAP” on Bloomberg page URI.N <equity> VAP (or any successor thereto)
in respect of the period from 9:30 a.m. to 4:00 p.m. (New York City
time) on such Exchange Business Day (or if such volume-weighted average price
is unavailable or is manifestly incorrect, the market value of one Share on
such Exchange Business Day, as determined by the Calculation Agent using a
volume-weighted method).


 


(d)   Amendment to Equity Definitions.  The following amendment shall be made to the
Equity Definitions:


 


Section 12.6(a)(ii) of
the Equity Definitions is hereby amended by (1) deleting from the fourth
line thereof the word “or” after the word “official” and inserting a comma
therefor, and (2) deleting the semi-colon at the end of subsection (B) thereof
and inserting the following words therefor “or (C) at Dealer’s option, 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.”


 


(e)   Repurchase and Conversion Rate Adjustment
Notices.  Counterparty shall,
at least 10 Scheduled Trading Days prior to effecting any repurchase of Shares
or consummating or otherwise executing or engaging 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), give Dealer a written notice of such repurchase or Conversion
Rate Adjustment Event (a “Repurchase Notice”)
if, following such repurchase or Conversion Rate Adjustment Event, the Notice
Percentage as determined on the date of such Repurchase Notice is (i) greater


 


12

















 


than 4.5% and (ii) greater
by 0.5% than the Notice Percentage included in the immediately preceding
Repurchase Notice (or, in the case of the first such Repurchase Notice, greater
than the Notice Percentage as of the date hereof).  The “Notice Percentage”
as of any day is the fraction, expressed as a percentage, the numerator of
which is the Number of Shares and the denominator of which is the number of
Shares outstanding on such day.  In the
event that Counterparty fails to provide Dealer with a Repurchase Notice on the
day and in the manner specified in this Section 8(e) then
Counterparty agrees to indemnify and hold harmless Dealer, its affiliates and
their respective directors, officers, employees, agents and controlling persons
(Dealer and each such person being an “Indemnified Party”)
from and against any and all losses, claims, damages and liabilities (or
actions in respect thereof), joint or several, to which such Indemnified Party
may become subject under applicable securities laws, including without
limitation, Section 16 of the Exchange Act, relating to or arising out of
such failure.  If for any reason the
foregoing indemnification is unavailable to any Indemnified Party or
insufficient to hold harmless any Indemnified Party, then Counterparty shall
contribute, to the maximum extent permitted by law, to the amount paid or
payable by the Indemnified Party as a result of such loss, claim, damage or
liability.  In addition, Counterparty
will reimburse any Indemnified Party for all reasonable and actual
out-of-pocket expenses (including reasonable counsel fees and expenses) as they
are incurred (after notice to Counterparty) in connection with the
investigation of, preparation for or defense or settlement of any pending or
threatened claim or any action, suit or proceeding arising therefrom, whether
or not such Indemnified Party is a party thereto and whether or not such claim,
action, suit or proceeding is initiated or brought by or on behalf of Counterparty.  This indemnity shall survive the completion
of the Transaction contemplated by this Confirmation and any assignment and
delegation of the Transaction made pursuant to this Confirmation or the
Agreement shall inure to the benefit of any permitted assignee of Dealer.


 


(f)    Transfer and Assignment.  Either party may transfer any of its rights
or obligations under the Transaction with the prior written consent of the
non-transferring party, such consent not to be unreasonably withheld or
delayed. For the avoidance of doubt, Dealer may condition its consent on any of
the following, without limitation: (i) the receipt by Dealer of opinions
and documents reasonably satisfactory to Dealer in connection with such
assignment, (ii) such assignment being effected on terms reasonably
satisfactory to Dealer with respect to any legal and regulatory requirements
relevant to Dealer, and (iii) Counterparty continuing to be obligated to
provide notices hereunder relating to the Convertible Securities and continuing
to be obligated with respect to “Disposition of Hedge Shares” and “Repurchase
Notices” above.  In addition, Dealer may
transfer or assign without any consent of the Counterparty its rights and
obligations hereunder and under the Agreement, in whole or in part, to (i) any
of its affiliates whose obligations hereunder are guaranteed by Dealer or
another affiliate of equal or greater credit quality, (ii) any entities
sponsored or organized by, or on behalf of or for the benefit of Dealer whose
obligations hereunder are guaranteed by Dealer or another affiliate of equal or
greater credit quality, or (iii) any person of credit quality equivalent,
in Counterparty’s reasonable discretion, to Dealer.  At any time at which any Excess Ownership
Position exists, if Dealer, in its discretion, is unable to effect a transfer
or assignment to a third party in accordance with the requirements set forth
above after using its commercially reasonable efforts on pricing terms and
within a time period reasonably acceptable to Dealer such that an Excess
Ownership Position no longer exists, Dealer may designate any Scheduled Trading
Day as an Early Termination Date with respect to a portion (the “Terminated Portion”) of the Transaction, such that such
Excess Ownership Position no longer exists. In the event that Dealer so
designates an Early Termination Date with respect to a portion of the
Transaction, a payment or delivery shall be made pursuant to Section 6 of
the Agreement and Section 8(b) of this Confirmation as if (i) an
Early Termination Date had been designated in respect of a Transaction having
terms identical to the Terminated Portion of the Transaction, (ii) Counterparty
shall be the sole Affected Party with respect to such partial termination and (iii) such
portion of the Transaction shall be the only Terminated Transaction. “Excess Ownership Position” means any of the following: (i) the
Equity Percentage exceeds 9.0%, (ii) Dealer or any “affiliate” or “associate”
of Dealer would own in excess of 13% of the outstanding Shares for purposes of Section 203
of the Delaware General Corporation Law or (iii) Dealer, Dealer Group (as
defined below) or any person whose ownership position would be aggregated with
that of Dealer or Dealer Group (Dealer, Dealer Group or any such person, a “Dealer Person”) under any federal, state or local laws,
regulations or regulatory orders applicable to ownership of Shares (“Applicable Laws”), owns, beneficially owns, constructively
owns, controls, holds the power to vote or otherwise meets a relevant definition
of ownership in excess of a number of Shares equal to (x) the number of
Shares that would give rise to reporting or registration obligations or other
requirements (including obtaining prior approval by a state or federal
regulator) of a Dealer Person under Applicable Laws and with respect to which
such requirements have not been met or the relevant approval has not been
received or that would give rise to any


 


13

















 


consequences under the
constitutive documents of Counterparty or any contract or agreement to which
Counterparty is a party, in each case minus (y) 1%
of the number of Shares outstanding on the date of determination.  The “Equity 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 of any “group” (within the meaning of Section 13) of which Dealer is or
may be deemed to be a part (Dealer and any such affiliates, persons and groups,
collectively, “Dealer Group”), beneficially owns
(within the meaning of Section 13 of the Exchange Act), without
duplication, on such day and (B) the denominator of which is the number of
Shares outstanding on such day.


 


(g)   Staggered Settlement.  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”) or at two or more times on the Nominal Settlement
Date as follows:


 


(i)        in such notice, Dealer will specify to
Counterparty the related Staggered Settlement Dates (each of which will be on
or prior to such Nominal Settlement Date, but not prior to the beginning of the
related “Observation Period” as defined in the Indenture) or delivery times and
how it will allocate the Shares it is required to deliver under “Delivery
Obligation” (above) among the Staggered Settlement Dates or delivery times; and


 


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


 


(h)   Right to Extend.  Dealer may postpone any Exercise Date or
Settlement Date or any other date of valuation or delivery by Dealer, with
respect to some or all of the relevant Options (in which event the Calculation
Agent shall make appropriate adjustments to the Delivery Obligation), if Dealer
determines, in its reasonable discretion, that such extension is reasonably
necessary or appropriate to (i) preserve Dealer’s hedging or hedge unwind
activity hereunder in light of existing liquidity conditions in the cash
market, the stock loan market or any other relevant market 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.


 


(i)    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 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.


 


(j)    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.


 


(k)   Designation by Dealer.  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 to or from Counterparty,
Dealer may designate any of its affiliates to purchase, sell, receive or
deliver such shares or other securities and otherwise to perform Dealer
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.


 


(l)    No Netting and Set-off.  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.


 


14

















 


(m)  Equity Rights.  Dealer acknowledges and agrees that this
Confirmation is not intended to convey to it rights with respect to the
Transaction that are senior to the claims of common stockholders in the event
of Counterparty’s bankruptcy.  For the
avoidance of doubt, the parties agree that the preceding sentence shall not
apply at any time other than during Counterparty’s bankruptcy to any claim
arising as a result of a breach by Counterparty of any of its obligations under
this Confirmation or the Agreement.  For
the avoidance of doubt, the parties acknowledge that this Confirmation is not
secured by any collateral that would otherwise secure the obligations of
Counterparty herein under or pursuant to any other agreement.


 


(n)   Early Unwind.  (i) In the event the sale by
Counterparty of the Convertible Securities is not consummated with the initial
purchasers pursuant to the Underwriting Agreement for any reason by the close
of business in New York on November 17, 2009 (or such later date as agreed
upon by the parties, which in no event shall be later than November 24,
2009) (November 17, 2009 or such later date being 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 thereunder shall be cancelled and
terminated and (ii) Counterparty shall pay to Dealer an amount in cash
equal to the aggregate amount of costs and expenses relating to the unwinding
of Dealer’s hedging activities in respect of the Transaction (including market
losses incurred in reselling any Shares purchased by Dealer or its affiliates
in connection with such hedging activities, unless Counterparty agrees to
purchase any such Shares at the cost at which Dealer purchased such Shares),
but after giving effect to any gains experienced by Dealer (such net amount,
the “Cash Amount”) or, at the election of
Counterparty, Shares with a value (as reasonably determined by the Calculation
Agent) equal to the Cash Amount. Following such termination, cancellation and
payment, 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 either party arising out of and to be performed
in connection with the Transaction either prior to or after the Early Unwind
Date.  If Counterparty elects to deliver
Shares pursuant to this paragraph, the following provisions shall apply:


 


(i)            At the election of Counterparty by
notice to Dealer within one Exchange Business Day after the Early Unwind Date,
either (A) all Shares delivered by Counterparty to Dealer shall be, at the
time of such delivery, covered by an effective registration statement of
Counterparty for immediate resale by Dealer (such registration statement and
the corresponding prospectus (the “Prospectus”)
(including, without limitation, any sections describing the plan of
distribution) in form and content commercially reasonably satisfactory to
Dealer) or (B) Counterparty shall deliver additional Shares, so that the
value of such Shares, as reasonably determined by the Calculation Agent to
reflect an appropriate liquidity discount, equals the Cash Amount.  Notwithstanding anything herein or in the
Agreement to the contrary, the aggregate number of Shares that Counterparty may
be required to deliver to Dealer under this Transaction shall not exceed twice
the Number of Shares as of the date hereof as such number may be adjusted by
the Calculation Agent from time to time to account for any subdivision,
stock-split, stock combination, reclassification or similar dilutive or
anti-dilutive event with respect to the Shares.


 


(ii)           If Counterparty makes the election
described in clause (i)(A) above:


 


(A)           Dealer (or an affiliate of Dealer
designated by Dealer) shall be afforded a reasonable opportunity to conduct a
due diligence investigation with respect to Counterparty that is customary in
scope for underwritten offerings of equity securities of its size and that
yields results that are commercially reasonably satisfactory to Dealer or such
affiliate, as the case may be, in its discretion; and


 


(B)            Dealer (or an affiliate of Dealer
designated by Dealer) and Counterparty shall enter into an agreement (a “Registration Agreement”) on commercially reasonable terms in
connection with the public resale of such Shares by Dealer or such affiliate
substantially similar to underwriting agreements customary for underwritten
offerings of equity securities (and in particular on terms reasonably similar
to these contained in the Underwriting Agreement), in form and substance
reasonably satisfactory to Dealer or such affiliate and Counterparty, which
Registration Agreement shall include, without limitation, provisions
substantially similar to those contained in such underwriting agreements
relating to the indemnification of, and contribution in connection with the
liability of, Dealer and its affiliates and Counterparty, shall provide for the
payment by Counterparty of all expenses in connection with such resale,
including all registration costs and all reasonable fees and


 


15

















 


expenses of
counsel for Dealer, and shall provide for the delivery of accountants’ “comfort
letters” to Dealer or such affiliate with respect to the financial statements
and certain financial information contained in or incorporated by reference
into the Prospectus.


 


(iii)          If Counterparty makes the election
described in clause (i)(B) above:


 


(A)           Dealer (or an affiliate of Dealer
designated by Dealer) and any potential institutional purchaser of any such
Shares from Dealer or such affiliate identified by Dealer shall be afforded a
commercially reasonable opportunity to conduct a due diligence investigation in
compliance with applicable law with respect to Counterparty customary in scope
for private placements of equity securities of its size (including, without
limitation, the right to have made available to them for inspection such
financial and other records, pertinent corporate documents and other
information reasonably requested by them), subject to execution by such
recipients of customary confidentiality agreements reasonably acceptable to
Counterparty;


 


(B)            Dealer (or an affiliate of Dealer
designated by Dealer) and Counterparty shall enter into an agreement (a “Private Placement Agreement”) on commercially reasonable
terms in connection with the private placement of such Shares by Counterparty
to Dealer or such affiliate and the private resale of such shares by Dealer or
such affiliate, substantially similar to private placement purchase agreements
customary for private placements of equity securities of its size, in form and
substance reasonably satisfactory to Dealer and Counterparty, which Private
Placement Agreement shall include, without limitation, provisions substantially
similar to those contained in such private placement purchase agreements
relating to the indemnification of, and contribution in connection with the
liability of, Dealer and its affiliates and Counterparty, shall provide for the
payment by Counterparty of all expenses in connection with such resale,
including all reasonable fees and expenses of counsel for Dealer, shall contain
customary representations, warranties and agreements of Counterparty reasonably
necessary or advisable to establish and maintain the availability of an
exemption from the registration requirements of the Securities Act for such
resales, and shall use commercially reasonable efforts to provide for the
delivery of accountants’ “comfort letters” to Dealer or such affiliate with
respect to the financial statements and certain financial information contained
in or incorporated by reference into the offering memorandum prepared for the
resale of such Shares;


 


(C)            Counterparty agrees that any Shares
so delivered to Dealer, (i) subject to applicable securities laws, may be
transferred by and among Dealer and its affiliates, and Counterparty shall
effect such transfer without any further action by Dealer and (ii) after
the minimum “holding period” within the meaning of Rule 144(d) under
the Securities Act has elapsed with respect to such Shares, Counterparty shall
promptly remove, or cause the transfer agent for such Shares or securities to
remove, any legends referring to any such restrictions or requirements from
such Shares or securities upon delivery by Dealer (or such affiliate of Dealer)
to Counterparty or such transfer agent of seller’s and broker’s representation
letters customarily delivered in connection with resales of restricted
securities pursuant to Rule 144 under the Securities Act, without any
further requirement for the delivery of any certificate, consent, agreement,
opinion of counsel, notice or any other document, any transfer tax stamps or
payment of any other amount or any other action by Dealer (or such affiliate of
Dealer);


 


(D)           Counterparty shall not take (and
shall cause any such affiliate not to take), or cause to be taken, any action
that would make unavailable either the exemption pursuant to Section 4(2) of
the Securities Act for the sale by Counterparty to Dealer (or any affiliate
designated by Dealer) of the Shares or the exemption pursuant to Section 4(1) or
Section 4(3) of the Securities Act for resales of the Shares by
Dealer (or any such affiliate of Dealer); and


 


(E)            Dealer or its affiliate may sell
(which sale shall be made in a commercially reasonable manner) such Shares
during a period (the “Resale Period”)
commencing on the Exchange Business Day following delivery of such Shares and
ending on the Exchange Business Day on which Dealer completes the sale of all
such Shares or a sufficient number of Shares so that the realized net proceeds
of such sales exceed the Cash Amount.  If
any of such delivered Shares remain after such realized net proceeds exceed the
Cash Amount, Dealer shall return such remaining Shares to Counterparty.  If the Cash Amount exceeds the realized net
proceeds from such resale, Counterparty shall transfer to Dealer by the open of
the regular trading session on the Exchange on the Exchange


 


16

















 


Trading Day immediately
following the last day of the Resale Period the amount of such excess (the “Additional Amount”) in cash or in a number of additional
Shares (“Make-whole Shares”) in an amount that,
based on the Relevant Price on the last day of the Resale Period (as if such
day was the “Valuation Date” for purposes of computing such Relevant Price),
has a dollar value equal to the Additional Amount.  The Resale Period shall continue to enable
the sale of the Make-whole Shares in the manner contemplated by this
paragraph.  This provision shall be
applied successively until the Additional Amount is equal to zero.


 


(o)   Waiver of Trial by Jury.  EACH OF COUNTERPARTY AND
DEALER HEREBY IRREVOCABLY WAIVES (ON ITS OWN BEHALF AND, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS STOCKHOLDERS) ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT,
TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE TRANSACTION OR THE ACTIONS
OF DEALER OR ITS AFFILIATES IN THE NEGOTIATION, PERFORMANCE OR ENFORCEMENT
HEREOF.


 


(p)   Governing Law; Jurisdiction.  THIS CONFIRMATION AND ANY
CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS CONFIRMATION
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.  THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE
EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED
STATES COURT FOR THE SOUTHERN DISTRICT OF NEW YORK IN CONNECTION WITH ALL
MATTERS RELATING HERETO AND WAIVE ANY OBJECTION TO THE LAYING OF VENUE IN, AND
ANY CLAIM OF INCONVENIENT FORUM WITH RESPECT TO, THESE COURTS.


 


17

















 


Counterparty
hereby agrees (a) to check this Confirmation carefully and immediately
upon receipt so that errors or discrepancies can be promptly identified and
rectified and (b) to confirm that the foregoing (in the exact form
provided by Dealer) correctly sets forth the terms of the agreement between
Dealer and Counterparty with respect to the Transaction, by manually signing
this Confirmation or this page hereof as evidence of agreement to such
terms and providing the other information requested herein and immediately
returning an executed copy to [            ],
Facsimile No. [            ].


 


	
   

  	
   

  	
  Yours faithfully,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Dealer]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
  Agreed and Accepted By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  UNITED RENTALS, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By: 

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


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