Exhibit 10.1


 


[Dealer name and address]


 


[_________], 2020


 


	To:	Splunk, Inc.



270 Brannan Street


San Francisco, California
94107


Attention: Scott Morgan, Senior
Vice President, Chief Legal Officer, Global Affairs and Secretary


Telephone No.: (415) 848-8566


 


	Re:	[Base]1[Additional]2
Call Option Transaction



 


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


 


1.       This
Confirmation is subject to, and incorporates, the definitions and provisions of the 2006 ISDA Definitions (the “2006
Definitions”) and the definitions and provisions of the 2002 ISDA Equity Derivatives Definitions (the
 “Equity Definitions”, and together with the 2006 Definitions, the “Definitions”), in
each case as published by the International Swaps and Derivatives Association, Inc. (“ISDA”). Certain
defined terms used herein have the meanings assigned to them in the Offering Memorandum dated June [__], 2020 (the
 “Offering Memorandum”) relating to the USD [900,000,000] principal amount of [__]% Convertible Senior
Notes due 2027 (the “Base Convertible Securities”) issued by Counterparty (as increased by up to an
additional USD [135,000,000] principal amount of [__]% Convertible Senior Notes due 2027 [that may be]3 issued
pursuant to the option to purchase additional convertible securities [exercised on the date hereof]4 (the
 “Optional Convertible Securities” and, together with the Base Convertible Securities, the
 “Convertible Securities”)) pursuant to an Indenture [to be] dated June [__], 2020 between Counterparty and
U.S. Bank National Association, as trustee (the “Indenture”). In the event of any inconsistency between
the terms defined in the Indenture and this Confirmation, this Confirmation shall govern. The parties acknowledge that this
Confirmation is entered into on the date hereof with the understanding that (i) definitions set forth in the Indenture
that are also defined herein by reference to the Indenture and (ii) sections of the Indenture that are referred to
herein, 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. [For the avoidance of doubt,
subject to the foregoing, 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 between the execution of this Confirmation and the execution of the Indenture, the parties will
amend this Confirmation in good faith and in a commercially reasonable manner to preserve the economic intent of the parties
as evidenced by such draft of the Indenture. In addition, subject to the foregoing, the]5
[The]6 parties acknowledge that
references to the Indenture herein are references to the Indenture [as of its date of execution]7[as
in effect on the date hereof]8
and if the Indenture is, or the Convertible Securities are, amended, modified or supplemented following the date hereof or
the date of their execution, respectively, any such amendment, modification or supplement (other than any amendment,
modification or supplement (i) pursuant to Section 14.07 of the Indenture, subject to the provisions opposite the
caption “Counterparty Discretionary Adjustments” in Section 2 hereof, or (ii) pursuant to Section 10.01(h) of the
Indenture that, as determined by the Calculation Agent in good faith and in a commercially reasonable manner, conforms the
Indenture to the description of Convertible Securities in the Offering Memorandum) will be disregarded for purposes of this
Confirmation unless the parties agree otherwise in writing.


 





 



1
Include for base capped call.


2
Include for additional capped call.


3
Include for base capped call.


4
Include for additional capped call.


5
Include for base capped call or additional capped call if Indenture has not been executed at time of execution of the Confirmation.


6
Include if Indenture has been executed at time of execution of this Confirmation.


7
Include if Indenture has not been executed at time of execution of this Confirmation.


8 Include if Indenture has been executed at time
of execution of this Confirmation.


 






     


     


    

 


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


 


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 as if Dealer and Counterparty had executed an agreement in such form on the date hereof (but without any Schedule except
for (i) the election of US Dollars (“USD”) as the Termination Currency, (ii) the election of the laws of the
State of New York as the governing law (without reference to choice of law doctrine)[, (iii) the election of an executed guarantee
of [__________] (“Guarantor”) dated as of the Trade Date in customary form as a Credit Support Document, (iv)
the election of Guarantor as Credit Support Provider in relation to Dealer]9
and [(v)][(iii)] the election that the “Cross Default” provisions of Section 5(a)(vi) of the Agreement shall apply
to Dealer with a “Threshold Amount” of three percent of Dealer’s [parent’s] shareholders’ equity;
provided that (A) “Specified Indebtedness” shall not include obligations in respect of deposits received
in the ordinary course of Dealer’s banking business, (B) the phrase “or becoming capable at such time of being
declared” shall be deleted from clause (1) of such Section 5(a)(vi) and (C) the following language shall be
added to the end of such Section 5(a)(vi): “Notwithstanding the foregoing, a default under subsection (2) hereof shall
not constitute an Event of Default if (x) the default was caused solely by error or omission of an administrative or operational
nature; (y) funds were available to enable the party to make the payment when due; and (z) the payment is made within
two Local Business Days of such party’s receipt of written notice of its failure to pay.”).


 


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 among this Confirmation, the Equity Definitions, the 2006 Definitions or the Agreement, the following shall
prevail in the order of precedence indicated: (i) this Confirmation; (ii) the Equity Definitions; (iii) the 2006 Definitions; and
(iv) the Agreement. For the avoidance of doubt, except to the extent of an express conflict, the application of any provision of
this Confirmation, the Agreement, the Equity Definitions or the 2006 Definitions shall not be construed to exclude or limit any
other provision of this Confirmation, the Agreement, the Equity Definitions or the 2006 Definitions.


 


The Transaction hereunder
shall be the sole Transaction under the Agreement. If there exists any ISDA Master Agreement between Dealer and Counterparty or
any confirmation or other agreement between Dealer and Counterparty pursuant to which an ISDA Master Agreement is deemed to exist
between Dealer and Counterparty, then notwithstanding anything to the contrary in such ISDA Master Agreement, such confirmation
or agreement or any other agreement to which Dealer and Counterparty are parties, the Transaction shall not be considered a Transaction
under, or otherwise governed by, such existing or deemed ISDA Master Agreement.


 


2.      
The 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:


 





 






9
To be included for dealers without a long term debt rating.


 






    2


     


    

 


General Terms:


 


	 	Trade Date:	 	[_________], 2020
	 	 	 	 
	 	Effective Date:	 	The closing date of the [initial]10 issuance of the Convertible Securities [issued pursuant to the option to purchase additional Convertible Securities exercised on the date hereof]11.
	 	 	 	 
	 	Option Style:	 	Modified American, as described under “Procedures for Exercise” below.
	 	 	 	 
	 	Option Type:	 	Call               
	 	 	 	 
	 	Seller:	 	Dealer
	 	 	 	 
	 	Buyer:	 	Counterparty
	 	 	 	 
	 	Shares:	 	The Common Stock of Counterparty, par value USD 0.001 per share (Ticker Symbol: “SPLK”).
	 	 	 	 
	 	Number of Options:	 	[The number of Base Convertible Securities in denominations of USD 1,000 principal amount issued by Counterparty on the closing date for the initial issuance of the Convertible Securities.]12[The number of Optional Convertible Securities in denominations of USD 1,000 principal amount purchased by the Initial Purchasers (as defined in the Purchase Agreement), at their option pursuant to Section [2] of the Purchase Agreement (as defined below).]13  For the avoidance of doubt, the Number of Options outstanding shall be reduced by each exercise of Options hereunder.  In no event will the Number of Options be less than zero.  
	 	 	 
	 	Applicable Percentage:	 	[__]%14
	 	 	 	 
	 	Option Entitlement:	 	A number equal to the product of the Applicable Percentage and [_____]15
	 	 	 	 
	 	Make-Whole Fundamental Change 

Adjustment:	 	Any adjustment to the Conversion Rate pursuant to Section 14.03 of the Indenture.
	 	 	 	 
	 	Discretionary Adjustment:	 	Any adjustment to the Conversion Rate pursuant to Section 14.04(h) of the Indenture.
	 	 	 	 
	 	Strike Price:	 	USD [_____]16
	 	 	 	 
	 	Cap Price:                                      	 	USD [_____]



 





 




 10
Include for base capped call.


11
Include for additional capped call.


12
Include for base capped call.


13
Include for additional capped call.


14
To be Dealer’s percentage of the overall capped call transaction.


15
To be the initial “Conversion Rate.”


16
To be the initial “Conversion Price.”


 






    3


     


    

 


	 	Rounding of Strike Price/Cap Price/Option Entitlement:	 	In connection with any adjustment to the Option Entitlement or Strike Price, the Option Entitlement or Strike Price, as the case may be, shall be rounded by the Calculation Agent in accordance with the provisions of the Indenture relating to rounding of the “Conversion Price” or the “Conversion Rate”, as applicable (each as defined in the Indenture).  In connection with any adjustment to the Cap Price hereunder, the Calculation Agent will round the adjusted Cap Price to the nearest USD 0.0001.
	 	 	 	 
	 	Number of Shares:	 	As of any date, a number of Shares equal to the product of the Number of Options and the Option Entitlement.
	 	 	 	 
	 	Premium:	 	USD [_____]
	 	 	 	 
	 	Premium Payment Date:	 	The Effective Date
	 	 	 	 
	 	Exchange:	 	The NASDAQ Global Select Market
	 	 	 	 
	 	Related Exchange:	 	All Exchanges
	 	 	 	 
	Procedures for Exercise:	 	 
	 	 	 	 
	 	Exercise Dates:	 	Each Conversion Date.
	 	 	 	 
	 	Conversion Date:	 	[With respect to any conversion of a Convertible Security (other than (x) any conversion of Convertible Securities with a “Conversion Date” (as defined in the Indenture) occurring prior to the Free Convertibility Date or (y) any conversion of Convertible Securities in respect of which holder(s) of such Convertible Securities would be entitled to an increase in the Conversion Rate pursuant to a Make-Whole Fundamental Change Adjustment (any such conversion described in clause (x) or clause (y), an “Early Conversion”), to which the provisions of Section 8(b)(iii) of this Confirmation shall apply), the “Conversion Date” (as defined in the  Indenture); provided that no Conversion Date shall be deemed to have occurred with respect to Exchanged Securities (such Convertible Securities, other than Exchanged Securities, the “Relevant Convertible Securities” for such Conversion Date).]17



 





 






17
Include for base capped call.


 






    4


     


    

 


	 	 	 	[With respect to any conversion of a Convertible Security (other than (x) any conversion of Convertible Securities with a “Conversion Date” (as defined in the Indenture) occurring prior to the Free Convertibility Date or (y) any conversion of Convertible Securities in respect of which holder(s) of such Convertible Securities would be entitled to an increase in the Conversion Rate pursuant to a Make-Whole Fundamental Change Adjustment (any such conversion described in clause (x) or clause (y), an “Early Conversion”), to which the provisions of Section 8(b)(iii) of this Confirmation shall apply), the “Conversion Date” (as defined in the Indenture) for Convertible Securities that are not “Relevant Convertible Securities” under (and as defined in) the confirmation between the parties hereto regarding the Base Call Option Transaction dated June [__], 2020 (the “Base Call Option Transaction Confirmation”); provided that no Conversion Date shall be deemed to have occurred with respect to Exchanged Securities (such Convertible Securities, other than Exchanged Securities, the “Relevant Convertible Securities” for such Conversion Date).  For the purposes of determining whether any Convertible Securities will be Relevant Convertible Securities hereunder or “Relevant Convertible Securities” under the Base Call Option Transaction Confirmation, Convertible Securities that are converted pursuant to the Indenture shall be allocated first to the Base Call Option Transaction Confirmation until all Options thereunder are exercised or terminated.]18
	 	 	 	 
	 	Free Convertibility Date:	 	December 15, 2026
	 	 	 	 
	 	Exchanged Securities:	 	With respect to any Conversion Date, any Convertible Securities with respect to which Counterparty makes the election described in Section 14.12 of the Indenture and the financial institution designated by Counterparty accepts such Convertible Securities in accordance with Section 14.12 of the Indenture, as long as Counterparty does not submit a Notice of Exercise in respect thereof.
	 	 	 	 
	 	Expiration Date:	 	The earlier of (i) the last day on which any Convertible Securities remain outstanding and (ii) June 15, 2027, subject to earlier exercise.
	 	 	 	 
	 	Automatic Exercise on Conversion Dates:	 	Applicable, which means that on each Conversion Date occurring on or after the Free Convertibility Date, a number of Options equal to the number of Relevant Convertible Securities for such Conversion Date in denominations of USD 1,000 principal amount shall be automatically exercised, subject to “Notice of Exercise” below.
	 	 	 	 
	 	Notice Deadline:	 	In respect of any exercise of Options hereunder on any Conversion Date on or after the Free Convertibility Date, 5:00 P.M., New York City time, on the “Scheduled Trading Day” (as defined in the Indenture) immediately preceding the “Maturity Date” (as defined in the Indenture).



 





 






18
Include for additional capped call.


 






    5


     


    

 


	 	Notice of Exercise:	 	Counterparty shall notify Dealer in writing prior to the Notice Deadline of the number of Relevant Convertible Securities being converted on the related Conversion Date[; provided that any “Notice of Exercise” delivered to Dealer pursuant to the Base Call Option Transaction Confirmation shall be deemed to be a Notice of Exercise pursuant to this Confirmation and the terms of such Notice of Exercise shall apply, mutatis mutandis, to this Confirmation]19.  For the avoidance of doubt, if Counterparty fails to give such notice when due in respect of any exercise of Options hereunder with a Conversion Date occurring on or after the Free Convertibility Date, Automatic Exercise shall apply and the Conversion Date shall be deemed to be the second “Scheduled Trading Day” (as defined in the Indenture) immediately preceding the “Maturity Date” (as defined in the Indenture).
	 	 	 	 
	 	Notice of Final Convertible Security

Settlement Method:	 	In addition, Counterparty shall notify Dealer in writing before 5:00 P.M., New York City time, on the “Scheduled Trading Day” (as defined in the Indenture) immediately preceding the Free Convertibility Date of the settlement method (and, if applicable, the “Specified Dollar Amount” (as defined in the Indenture)) elected (or deemed to be elected) with respect to Relevant Convertible Securities with a Conversion Date occurring on or after the Free Convertibility Date (any such notice, a “Notice of Final Convertible Security Settlement Method”); provided that, if Counterparty does not timely deliver the Notice of Final Convertible Security Settlement Method then the Notice of Final Convertible Security Settlement Method shall be deemed timely given and the Applicable Settlement Method shall be a Cash Election with a “Specified Dollar Amount” (as defined in the Indenture) of USD 1,000. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, in respect of any settlement method election hereunder.
	 	 	 	 
	 	Dealer’s Telephone Number and Telex

 and/or Facsimile Number and Contact 

Details for purpose of Giving Notice:	 	As specified in Section 6(b) below.
		 	 	 
	Settlement Terms:	 	 
	 	 	 	 
	 	Settlement Date:	 	For any Exercise Date, the date one Settlement Cycle following the final day of the Cash Settlement Averaging Period; provided that the Settlement Date shall not be prior to the Exchange Business Day immediately following the date Counterparty provides the Notice of Delivery Obligation prior to 5:00 P.M., New York City time.




 





 






19
Include for additional capped call confirmation only.


 






    6


     


    

 



 


	 	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 and “Method of Adjustment”, “Counterparty Discretionary Adjustments”, “Consequences of Merger Events/Tender Offers”, “Consequences of Announcement Events” and Section 8(l) below, in respect of an Exercise Date, Dealer will deliver to Counterparty on the related Settlement Date (the “Delivery Obligation”), (i) a number of Shares equal to the product of the Applicable Percentage and the aggregate number of Shares, if any, that Counterparty would be obligated to deliver to the holder(s) of the Relevant Convertible Securities for such Conversion Date pursuant to Section 14.02(a)(iv) of the Indenture (except that such number of Shares shall be rounded down to the nearest whole number) and cash in lieu of any fractional Share resulting from such rounding and/or (ii) the product of the Applicable Percentage and the aggregate amount of cash, if any, in excess of the principal amount of the Relevant Convertible Securities that Counterparty would be obligated to deliver to holder(s) of the Relevant Convertible Securities for such Conversion Date pursuant to Section 14.02(a)(iv) of the Indenture, determined, for each of clauses (i) and (ii), by the Calculation Agent  in a commercially reasonable manner by reference to such Sections of the Indenture as if Counterparty had elected to satisfy its conversion obligation in respect of such Relevant Convertible Securities by the Applicable Settlement Method, notwithstanding any different actual election by Counterparty with respect to the settlement of such Relevant Convertible Securities; provided that, if the “Daily VWAP” (as defined in the Indenture) for any “Trading Day” (as defined in the Indenture pursuant to the second proviso in such definition) during the Cash Settlement Averaging Period is greater than the Cap Price, then clause (b) of the relevant “Daily Conversion Value” (as defined in the Indenture) for such “Trading Day” shall be determined as if such “Daily VWAP” for such “Trading Day” were deemed to equal the Cap Price; provided further that the Delivery 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 direct or indirect result of any adjustments to the Conversion Rate pursuant to a Discretionary Adjustment and any interest payment that Counterparty is (or would have been) obligated to deliver to holder(s) of the Relevant Convertible Securities for such Conversion Date.  Notwithstanding the foregoing, if, in respect of any Exercise Date, (x)(I) the number of Shares included in the Delivery Obligation multiplied by the Share Obligation Value Price plus (II) the amount of cash included in the Delivery Obligation, would otherwise exceed (y) the product of the Applicable Percentage and the relevant Net Convertible Share Obligation Value, such number of Shares and such amount of cash shall be proportionately reduced to the extent necessary to eliminate such excess.



 






    7


     


    

 


	 	Applicable Settlement Method:	 	For any Relevant Convertible Securities, if Counterparty has notified Dealer in the Notice of Final Convertible Security Settlement Method that it has elected, or is deemed to have elected, to satisfy its conversion obligation in respect of such Relevant Convertible Securities in cash or in a combination of cash and Shares in accordance with Section 14.02(a) of the Indenture (a “Cash Election”) with a “Specified Dollar Amount” (as defined in the Indenture) of at least USD 1,000, the Applicable Settlement Method shall be the settlement method actually so elected, or deemed to be elected, by Counterparty in respect of such Relevant Convertible Securities (the “Convertible Securities Settlement Method”); otherwise, the Applicable Settlement Method shall assume Counterparty had made a Cash Election with respect to such Relevant Convertible Securities (a “Deemed Cash Election”) with a “Specified Dollar Amount” (as defined in the Indenture) of USD 1,000 per Relevant Convertible Security and the Delivery Obligation shall be determined by the Calculation Agent pursuant to Section 14.02(a)(iv)(C) of the Indenture as if the relevant “Observation Period” (as defined in the Indenture) were the Cash Settlement Averaging Period.
	 	 	 	 
	 	Cash Settlement Averaging Period:	 	The 30 “Trading Days” (as defined in the Indenture pursuant to the second proviso in such definition) commencing on the 31st “Scheduled Trading Day” (as defined in the Indenture) prior to the “Maturity Date” (as defined in the Indenture); provided that, in the case of a Deemed Cash Election, the Cash Settlement Averaging Period shall be the 60 “Trading Days” (as defined in the Indenture pursuant to the second proviso in such definition) commencing on the 61st “Scheduled Trading Day” (as defined in the Indenture) prior to the “Maturity Date” (as defined in the Indenture).
	 	 	 	 
	 	Notice of Delivery Obligation:	 	No later than the Exchange Business Day immediately following the last day of the Cash Settlement Averaging Period, Counterparty shall give Dealer notice of the aggregate number of Shares and/or amount of cash included in the Total Convertible Share Obligation Value (as defined below) for all Exercise Dates (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 a Notice of Exercise or Notice of Final Convertible Security Settlement Method, as the case may be, as set forth above, in any way).



 






    8


     


    

 


	 	Net Convertible Share Obligation Value:	 	With respect to Relevant Convertible Securities as to a Conversion Date, (i) the Total Convertible Share Obligation Value of such Relevant Convertible Securities for such Conversion Date minus (ii) the aggregate principal amount of such Relevant Convertible Securities for such Conversion Date.
	 	 	 	 
	 	Total Convertible Share Obligation Value:	 	With respect to Relevant Convertible Securities with respect to a Conversion Date, (i) (A) the number of Shares equal to the aggregate number of Shares that Counterparty is obligated to deliver to the holder(s) of Relevant Convertible Securities for such Conversion Date pursuant to the Indenture multiplied by (B) the Share Obligation Value Price plus (ii) an amount of cash equal to the aggregate amount of cash that Counterparty is obligated to deliver to the holder(s) of Relevant Convertible Securities for such Conversion Date pursuant to the Indenture (including, for the avoidance of doubt, any cash payable by Counterparty in lieu of fractional Shares); provided that the Total Convertible Share Obligation Value 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 direct or indirect result of any adjustments to the Conversion Rate pursuant to a Discretionary Adjustment and any interest payment that Counterparty is (or would have been) obligated to deliver to holder(s) of the Relevant Convertible Securities for such Conversion Date.  
	 	 	 	 
	 	Share Obligation Value Price:	 	The opening price as displayed under the heading “Op” on Bloomberg page “SPLK.N <Equity>” (or its equivalent successor if such page is not available) on the applicable Settlement Date or other date of delivery.
	 	 	 	 
	 	Other Applicable Provisions:	 	To the extent Dealer is obligated to deliver Shares hereunder, the provisions of Sections 9.8, 9.9 and 9.11 of the Equity Definitions will be applicable as if “Physical Settlement” applied to the Transaction; provided 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 that exist as a result of the fact that Counterparty is the issuer of the Shares.  



 






    9


     


    

 


	 	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.
	 	 	 	 
	Adjustments:	 	 
	 	 	 
	 	Method of Adjustment:	 	Notwithstanding Section 11.2 of the Equity Definitions, upon the occurrence of any event or condition set forth in the Dilution Adjustment Provisions (a “Potential Adjustment Event”) that requires an adjustment under the Indenture, the Calculation Agent shall, in good faith and in a commercially reasonable manner, make a corresponding adjustment in respect of any one or more of the Strike Price, the Number of Options, the Option Entitlement and any other term relevant to the exercise, settlement or payment of the Transaction, to the extent an analogous adjustment is required under the Indenture, subject to “Counterparty Discretionary Adjustments” below.  Immediately upon the occurrence of any Potential Adjustment Event, Counterparty shall notify the Calculation Agent of such Potential Adjustment Event.
	 	 	 	 
	 	 	 	Notwithstanding anything to the contrary herein or in the Equity Definitions:
	 	 	 	 
	 	 	 	(i) in connection with any Potential Adjustment Event as a result of an event or condition set forth in Section 14.04(b) of the Indenture or Section 14.04(c) of the Indenture where, in either case, the period for determining “Y” (as such term is used in Section 14.04(b) of the Indenture) or “SP0” (as such term is used in Section 14.04(c) of the Indenture), as the case may be, begins before Counterparty has publicly announced the event or condition giving rise to such Potential Adjustment Event, then the Calculation Agent shall, in good faith and in a commercially reasonable manner, have the right to adjust any variable relevant to the exercise, settlement or payment for the Transaction as appropriate to reflect the reasonable costs (including, but not limited to, hedging mismatches and market losses) and commercially reasonable  out-of-pocket expenses incurred by Dealer in connection with its commercially reasonable hedging activities as a result of such event or condition not having been publicly announced prior to the beginning of such period; and



 






    10


     


    

 


	 	 	 	(ii) if any Potential Adjustment Event is declared and (a) the event or condition giving rise to such Potential Adjustment Event is subsequently amended, modified, cancelled or abandoned, (b) the “Conversion Rate” (as defined in the Indenture) is otherwise not adjusted at the time or in the manner contemplated by the relevant Dilution Adjustment Provision based on such declaration or (c) the “Conversion Rate” (as defined in the Indenture) is adjusted as a result of such Potential Adjustment Event and subsequently re-adjusted (each of clauses (a), (b) and (c), a “Potential Adjustment Event Change”) then, in each case, the Calculation Agent shall, in good faith and in a commercially reasonable manner, have the right to adjust any variable relevant to the exercise, settlement or payment for the Transaction as appropriate to reflect the reasonable costs (including, but not limited to, hedging mismatches and market losses) and commercially reasonable out-of-pocket  expenses incurred by Dealer in connection with its commercially reasonable hedging activities as a result of such Potential Adjustment Event Change. Upon the occurrence of any Potential Adjustment Event Change, Counterparty shall immediately notify the Calculation Agent in writing of the details of such Potential Adjustment Event Change.
	 	 	 	 
	 	 	 	For the avoidance of doubt, Dealer shall not have any payment or delivery obligation hereunder in respect of, and no adjustment shall be made to the terms of the Transaction on account of, (x) any distribution of cash, property or securities by Counterparty to the holders of Convertible Securities (upon conversion or otherwise) or (y) any other transaction in which holders of Convertible Securities are entitled to participate, in each case, in lieu of an adjustment under the Indenture in respect of a Potential Adjustment Event (including, without limitation, under the fifth sentence of Section 14.04(c) of the Indenture or the fourth sentence of Section 14.04(d) of the Indenture).
	 	 	 	 
	 	Dilution Adjustment Provisions:	 	Sections 14.04(a), (b), (c), (d) and (e) and Section 14.05 of the Indenture



 






    11


     


    

 


	 	Counterparty Discretionary Adjustments:	 	Notwithstanding anything to the contrary herein or in the Equity Definitions, if the Calculation Agent in good faith disagrees with any adjustment under the Indenture that is the basis of any adjustment hereunder and that involves an exercise of discretion by Counterparty, its board of directors or a committee of its board of directors (including, without limitation, pursuant to Section 14.05 of the Indenture or pursuant to Section 14.07 of the Indenture or any supplemental indenture entered into thereunder or in connection with the determination of the fair value of any securities, property, rights or other assets), then the Calculation Agent will determine the corresponding adjustment to be made to any one or more of the Strike Price, Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment of or under the Transaction in good faith and in a commercially reasonable manner consistent with the methodology set forth in the Indenture. In addition, notwithstanding the foregoing, if any Potential Adjustment Event occurs during the Cash Settlement Averaging Period but no adjustment was made to any Convertible Security under the Indenture because the relevant holder of such Convertible Security was deemed to be a record owner of the underlying Shares on the related Conversion Date, then the Calculation Agent shall, in good faith and in a commercially reasonable manner, make an adjustment, consistent with the methodology set forth in the Indenture as determined by it, to the terms hereof in order to account for such Potential Adjustment Event.  For the avoidance of doubt, the Delivery Obligation shall be calculated on the basis of such adjustments by the Calculation Agent.
	 	 	 	 
	Extraordinary Events:	 	 
	 	 	 
	 	Merger Events:	 	Notwithstanding Section 12.1(b) of the Equity Definitions, “Merger Event” shall have the meaning set forth for the term “Share Exchange Event” in Section 14.07 of the Indenture.



 






    12


     


    

 



 


	 	Consequences of Merger Events/ Tender Offers:	 	Notwithstanding Section 12.2 of the Equity Definitions, upon the occurrence of a Merger Event, the Calculation Agent, acting in good faith and commercially reasonably, shall make a corresponding adjustment in respect of any adjustment under the Indenture to any one or more of the nature of the Shares, the Number of Options, the Option Entitlement, composition of the “Shares” hereunder and any other variable relevant to the exercise, settlement or payment for the Transaction, to the extent an analogous adjustment is required under Section 14.07 of the Indenture in respect of such Merger Event, as determined in good faith and in a commercially reasonable manner by the Calculation Agent by reference to such Section, subject to “Counterparty Discretionary Adjustments” above; provided that such adjustment shall be made without regard to any adjustment to the Conversion Rate pursuant to a Make-Whole Fundamental Change Adjustment or a Discretionary Adjustment; provided further that in respect of any election by the holders of Shares with respect to the consideration due upon consummation of any Merger Event, the Calculation Agent shall have the right to adjust any variable relevant to the exercise, settlement or payment for the Transaction as appropriate to compensate Dealer for any losses (including, without limitation, market losses customary for transactions similar to the Transaction with counterparties similar to Counterparty) solely as a result of any mismatch on its Hedge Position, assuming Dealer maintains a commercially reasonable Hedge Position, and the type and amount of consideration actually paid or issued to the holders of Shares in respect of such Merger Event; and provided further that if, with respect to a Merger Event or a Tender Offer, (i) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) securities issued by an entity that is not a corporation organized under the laws of the United States, any state thereof or the District of Columbia or (ii) the Counterparty to the Transaction, following such Merger Event, will not be a corporation organized under the laws of the United States, any State thereof or the District of Columbia or will not be the Issuer, Dealer may elect in its commercially reasonable discretion that Cancellation and Payment (Calculation Agent Determination) shall apply.  For the avoidance of doubt, adjustments shall be made pursuant to the provisions set forth above regardless of whether any Merger Event gives rise to an Early Conversion. For purposes of this paragraph, “Tender Offer” means the occurrence of any event or condition set forth in Section 14.04(e) of the Indenture.
	 	 	 	 
	 	Notice of Merger Consideration:	 	Upon the occurrence of a Merger Event, Counterparty shall reasonably promptly (but in any event prior to consummation of such Merger Event) notify the Calculation Agent of, in the case 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), the weighted average of the types and amounts of consideration actually received by holders of Shares upon consummation of such Merger Event.  



 






    13


     


    

 


	 	Consequences of Announcement Events:	 	Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions; provided that, in respect of an Announcement Event, (x) references to “Tender Offer” shall be replaced by references to “Announcement Event” and references to “Tender Offer Date” shall be replaced by references to “date of such Announcement Event”, (y) the phrase “exercise, settlement, payment or any other terms of the Transaction (including, without limitation, the spread)” shall be replaced with the phrase “Cap Price (provided that in no event shall the Cap Price be less than the Strike Price)” and the words “whether within a commercially reasonable (as determined by the Calculation Agent) period of time prior to or after the Announcement Event” shall be inserted prior to the word “which” in the seventh line, and (z) for the avoidance of doubt, the Calculation Agent shall, in good faith and in a commercially reasonable manner, determine whether the relevant Announcement Event has had a material economic effect on the Transaction (the terms of which include, among other terms, the Strike Price and Cap Price), and, if so, shall adjust the Cap Price accordingly to take into account such economic effect on one or more occasions on or after the date of the Announcement Event up to, and including, the Expiration Date, any Early Termination Date and/or any other date of cancellation, it being understood that any adjustment in respect of an Announcement Event shall take into account any earlier adjustment relating to the same Announcement Event and shall not be duplicative with any other adjustment or cancellation valuation made pursuant to this Confirmation, the Equity Definitions or the Agreement; provided that in no event shall the Cap Price be adjusted to be less than the Strike Price. An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, to which Article 12 of the Equity Definitions is applicable; provided further that when the Calculation Agent makes an adjustment, determined in a commercially reasonable manner, to the Cap Price upon any Announcement Event, then the Calculation Agent shall make an adjustment to the Cap Price upon any announcement regarding the same event that gave rise to the original Announcement Event regarding the abandonment of any such event to the extent necessary to reflect the economic effect of such subsequent announcement on the Transaction (provided that in no event shall the Cap Price be less than the Strike Price).
	 	 	 	 
	 	Announcement Event:	 	(i) The public announcement by Issuer, any subsidiary of Issuer, any affiliate of Issuer, any agent of Issuer or a Valid Third Party of (x) any transaction or event that, if completed, would constitute a Merger Event or Tender Offer, (y) any potential acquisition or disposition by Issuer and/or its subsidiaries where the aggregate consideration exceeds 35% of the market capitalization of Issuer as of the date of such announcement (a “Transformative Transaction”) or (z) the intention to enter into a Merger Event or Tender Offer or a Transformative Transaction, (ii) the public announcement by Issuer of an intention to solicit or enter into, or to explore strategic alternatives or other similar undertaking that may include, a Merger Event or Tender Offer or a Transformative Transaction or (iii) any subsequent public announcement by Issuer, any subsidiary of Issuer, any affiliate of Issuer, any agent of Issuer or a Valid Third Party of a change to a transaction or intention that is the subject of an announcement of the type described in clause (i) or (ii) of this sentence (including, without limitation, a new announcement, whether or not by the same party, relating to such a transaction or intention or the announcement of a withdrawal from, or the abandonment or discontinuation of, such a transaction or intention), as determined by the Calculation Agent.  For the avoidance of doubt, the occurrence of an Announcement Event with respect to any transaction or intention shall not preclude the occurrence of a later Announcement Event with respect to such transaction or intention.  For purposes of this definition of “Announcement Event,” (A) “Merger Event” shall mean such term as defined under Section 12.1(b) of the Equity Definitions (but, for the avoidance of doubt, the remainder of the definition of “Merger Event” in Section 12.1(b) of the Equity Definitions following the definition of “Reverse Merger” therein shall be disregarded) and (B) “Tender Offer” shall mean such term as defined under Section 12.1(d) of the Equity Definitions; provided that Section 12.1(d) of the Equity Definitions is hereby amended by replacing “10%” with “20%” in the third line thereof.



 






    14


     


    

 


	 	Valid Third Party:	 	In respect of any transaction, any third party that has a bona fide intent to enter into or consummate such transaction (it being understood and agreed that in determining whether such third party has such a bona fide intent, the Calculation Agent may take into consideration the effect of the relevant announcement by such third party on the Shares and/or options relating to the Shares).
	 	 	 	 
	 	Nationalization, Insolvency or Delisting:	 	Cancellation and Payment (Calculation Agent Determination); provided that in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it will also constitute a Delisting if the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any such exchange or quotation system, such exchange or quotation system shall thereafter be deemed to be the Exchange.
	 	 	 	 
	 	Additional Termination Event(s):	 	Notwithstanding anything to the contrary in the Equity Definitions, if, as a result of an Extraordinary Event, the Transaction would be cancelled or terminated (whether in whole or in part) pursuant to Article 12 of the Equity Definitions, an Additional Termination Event (with the Transaction (or the cancelled or terminated portion thereof) being the Affected Transaction and Counterparty being the sole Affected Party) shall be deemed to occur, and, in lieu of Sections 12.7, 12.8 and 12.9 of the Equity Definitions, Section 6 of the Agreement shall apply to such Affected Transaction.



 






    15


     


    

 


	Additional Disruption Events:  	 	 
	 	 	 	 
	 	(a)   Change in Law:	 	Applicable; provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the phrase “the interpretation” in the third line thereof with the phrase “, or public announcement of, the formal or informal interpretation”, (ii) adding the phrase “and/or Hedge Position” after the word “Shares” in clause (X) thereof and (iii) immediately following the word “Transaction” in clause (X) thereof, adding the phrase “in the manner contemplated by the Hedging Party on the Trade Date”; and provided further that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the parenthetical beginning after the word “regulation” in the second line thereof with the words “(including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute)” and (ii) adding the words “, or holding, acquiring or disposing of Shares or any Hedge Positions relating to,” after the words “obligations under” in clause (Y) thereof.
	 	 	 	 
	 	(b)   Failure to Deliver:	 	Applicable
	 	 	 	 
	 	(c)   Insolvency Filing:	 	Applicable
	 	 	 	 
	 	(d)   Hedging Disruption:	 	Applicable; provided that:
	 	 	 	 
	 	 	 	(i) Section 12.9(a)(v) of the Equity Definitions is hereby amended by inserting the following sentence at the end of such Section:
	 	 	 	 
	 	 	 	“For the avoidance of doubt, (i) the term “equity price risk” shall be deemed to include, but shall not be limited to, stock price and volatility risk, and (ii) the transactions or assets referred to in phrases (A) or (B) above must be available on commercially reasonable pricing and other terms.”; and
	 	 	 	 
	 	 	 	(ii) Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line thereof, after the words “to terminate the Transaction”, the words “or a portion of the Transaction affected by such Hedging Disruption”.
	 	 	 	 
	 	(e)   Increased Cost of Hedging:	 	Not Applicable
	 	 	 	 
	Hedging Party:	 	Dealer
	 	 	 
	Determining Party:	 	Dealer; all calculations and determinations made by the Determining Party shall be made in good faith and in a commercially reasonable manner; provided that the Determining Party will promptly, upon written notice from Counterparty, provide a statement displaying in reasonable detail the basis for such determination, adjustment or calculation, as the case may be (including any quotations, market data or information from internal or external sources used in making such determination, adjustment or calculation, it being understood that the Determining Party shall not be required to disclose any confidential information or proprietary models used by it in connection with such determination, adjustment or calculation, as the case may be) and shall use commercially reasonable efforts to provide such written explanation within five (5) Exchange Business Days from the receipt of such request.



 






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	 	Non-Reliance:	 	Applicable
	 		 	 
	 	Agreements and 

Acknowledgments Regarding 

Hedging Activities:	 	Applicable
	 	 	 	 
	 	Additional Acknowledgments:	 	Applicable
	 	 	 	 
	 	Hedging Adjustment:	 	For the avoidance of doubt, whenever Dealer, Determining Party or the Calculation Agent is permitted to make an adjustment pursuant to the terms of this Confirmation or the Equity Definitions to take into account the effect of any event (other than an adjustment made by reference to the Indenture), the Calculation Agent, Determining Party or Dealer, as the case may be, shall make such adjustment by reference to the effect of such event on Dealer assuming that Dealer maintains a commercially reasonable hedge position.
	 	 	 	 
	 	3.     Calculation Agent:  	 	Dealer; provided that all calculations and determinations by the Calculation Agent (other than calculations or determinations made by reference to the Indenture) shall be made in good faith and in a commercially reasonable manner and assuming for such purposes that Dealer is maintaining, establishing and/or unwinding, as applicable, a commercially reasonable hedge position; provided further that if an Event of Default of the type described in Section 5(a)(vii) of the Agreement with respect to which Dealer is the sole Defaulting Party occurs, Counterparty shall have the right to appoint a successor calculation agent which shall be a nationally recognized third-party dealer in over-the-counter corporate equity derivatives. Calculation Agent agrees that it will promptly, upon written notice from Counterparty, provide a statement displaying in reasonable detail the basis for such determination, adjustment or calculation, as the case may be (including any quotations, market data or information from internal or external sources used in making such determination, adjustment or calculation, it being understood that the Calculation Agent shall not be required to disclose any confidential information or proprietary models used by it in connection with such determination, adjustment or calculation, as the case may be).



 






    17


     


    

 


		4.	Account Details:



 


Dealer Payment
Instructions:


 


[Dealer Accounts]


 


Counterparty
Payment Instructions:


 


To be provided
by Counterparty.


 


		5.	Offices:



 


The Office
of Dealer for the Transaction is: [•]


 


The Office
of Counterparty for the Transaction is:


 


Inapplicable, Counterparty is not a Multibranch Party


 


		6.	Notices: For purposes of this Confirmation:



 


		(a)	Address for notices or communications to Counterparty:



 


	 	To:	Splunk, Inc. 
	 	 	270 Brannan Street
	 	 	San Francisco, California 94107
	 	Attention:	Scott Morgan, Senior Vice President, Chief Legal Officer, Global Affairs and Secretary
	 	Telephone No.:	(415) 848-8566
	 	Email:	smorgan@splunk.com



 


		(b)	Address for notices or communications to Dealer:



 


[Dealer
Address]


 


		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, (A) Counterparty is not aware of any material nonpublic information regarding Counterparty or the Shares and (B)
all reports and other documents 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)
On the Trade Date, the Shares or securities that are convertible into, or exchangeable or exercisable for Shares, are not 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 Trade Date.


 






    18


     


    

 



 


(iii)       Without
limiting the generality of Section 13.1 of the Equity Definitions, Counterparty acknowledges that neither Dealer nor any of its
affiliates is making any representations or warranties or taking any position or expressing any view with respect to the treatment
of the Transaction under any accounting standards including ASC Topic 260, Earnings Per Share, ASC Topic 815, Derivatives
and Hedging, or ASC Topic 480, Distinguishing Liabilities from Equity and ASC 815-40, Derivatives and Hedging –
Contracts in Entity’s Own Equity (or any successor issue statements).


 


(iv)       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.


 


(v)        Prior
to the Trade Date, Counterparty shall deliver to Dealer a resolution of Counterparty’s board of directors authorizing the
Transaction.


 


(vi)       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 manipulate the price of the Shares (or any security convertible into or exchangeable for
Shares) or otherwise in violation of the Exchange Act.


 


(vii)      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.


 


(viii)    On
each of the Trade Date and the Premium Payment Date, 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
Counterparty would be able to purchase the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s
incorporation.


 


(ix)       The
representations and warranties of Counterparty set forth in Section 3 of the Agreement and Section [1] of the Purchase Agreement,
dated as of June [ ], 2020, between Counterparty and Morgan Stanley & Co. LLC as representative of the initial purchasers party
thereto (the “Purchase Agreement”), are true and correct as of the Trade Date and the Effective Date and are
hereby deemed to be repeated to Dealer as if set forth herein.


 


(x)        To
the knowledge of Counterparty, no state or local (including non-U.S. jurisdictions) law, rule, regulation or regulatory order applicable
to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement
to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined)
Shares; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable
generally to the ownership of equity securities by Dealer or any of its affiliates solely as a result of it or any of such affiliates
being financial institutions or broker-dealers.


 


(xi)        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.


 


(xii)
       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 would 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 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 programs or facilities established by the
Board of Governors of the Federal Reserve System for the purpose of providing liquidity to the financial system (together
with loans, loan guarantees or direct loans under section 4003(b) of the CARES Act, “Governmental Financial
Assistance”). Accordingly, Counterparty represents and warrants that it has not applied for and prior to the
termination or settlement of the Transaction has no intention to apply for Governmental Financial Assistance under any
governmental program or facility that (a) is established under the CARES Act or the Federal Reserve Act, as amended, and (b)
requires, as a condition of such Governmental Financial Assistance, that the Counterparty agree, attest, certify or warrant
that it has not, as of the date specified in such condition, repurchased, or will not repurchase, any equity security of
Counterparty.


  



    19


     


    

 


(b)       Each
of Dealer and Counterparty agrees and represents that it is an “eligible contract participant” as defined in Section
1a(18) of the U.S. Commodity Exchange Act, as amended, and is entering into the Transaction as principal (and not as agent or
in any other capacity, fiduciary or otherwise) and not for the benefit of any third party.


 


(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(a)(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 and its investments in and liabilities in respect of the
Transaction, which it understands are not readily marketable, are not disproportionate to its net worth, and it is able to bear
any loss in connection with the Transaction, including the loss of its entire investment in the Transaction, (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, (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, and (v) its financial condition is such that it has no need for liquidity with respect
to its investment in the Transaction and no need to dispose of any portion thereof to satisfy any existing or contemplated undertaking
or indebtedness and is capable of assessing the merits of and understanding (on its own behalf or through independent professional
advice), and understands and accepts, the terms, conditions and risks of the Transaction.


 


(d)       Each
of Dealer and Counterparty agrees and acknowledges that Dealer is a “financial institution” and “financial participant”
within the meaning of Sections 101(22) and 101(22A) of the Bankruptcy Code. The parties hereto further agree and acknowledge (A)
that this Confirmation is a “securities contract,” as such term is defined in Section 741(7) of the Bankruptcy Code,
with respect to which each payment and delivery hereunder or in connection herewith is a “termination value,” “payment
amount” or “other transfer obligation” within the meaning of Section 362 of the Bankruptcy Code and a “settlement
payment” within the meaning of Section 546 of the Bankruptcy Code, and (B) that Dealer is entitled to the protections afforded
by, among other sections, Sections 362(b)(6), 362(b)(27), 362(o), 546(e), 546(j), 548(d)(2), 555 and 561 of the Bankruptcy Code.


 


(e)       As
a condition to the effectiveness of the Transaction, Counterparty shall deliver to Dealer an opinion of counsel, dated as of the
Premium Payment Date and reasonably acceptable to Dealer in form and substance, with respect to the matters set forth in Section
3(a)(i), (ii), (iii) and (iv) of the Agreement and Section 7(a)(vii) hereof; provided that any such opinion of counsel
may contain customary exceptions and qualifications, including, without limitation, exceptions and qualifications relating to indemnification
provisions.


 


(f)       Counterparty
understands that notwithstanding any other relationship between Counterparty and Dealer and its affiliates, in connection with
this Transaction and any other over-the-counter derivative transactions between Counterparty and Dealer or its affiliates, Dealer
or its affiliates is acting as principal and is not a fiduciary or advisor in respect of any such transaction, including any entry,
exercise, amendment, unwind or termination thereof.


 


(g)       Counterparty
represents and warrants that it has received, read and understands the OTC Options Risk Disclosure Statement and a copy of the
most recent disclosure pamphlet prepared by The Options Clearing Corporation entitled “Characteristics and Risks of Standardized
Options”.


 






    20


     


    

 


(h)       Each
party acknowledges and agrees to be bound by the Conduct Rules of the Financial Industry Regulatory Authority, Inc. applicable
to transactions in options, and further agrees not to violate the position and exercise limits set forth therein, in each case,
to the extent such rules are applicable to such party.


 


8.      
Other Provisions:


 


(a)                
Right to Extend. Dealer may postpone or add, in whole or in part, any Exercise Date or Settlement Date or any other
date of valuation, payment or delivery by Dealer, with respect to some or all of the relevant Options (in which event the Calculation
Agent, in good faith and in a commercially reasonable manner, shall make appropriate adjustments to the Delivery Obligation), if
Dealer determines, in good faith and in a commercially reasonable manner, and, in respect of clause (ii) below, based on the advice
of counsel, that such extension is reasonably necessary or appropriate (i) to preserve Dealer’s commercially reasonable hedging
or hedge unwind activity hereunder in light of existing liquidity conditions in the cash market, the stock borrow market or other
relevant market (but only if there is a material decrease in liquidity relative to Dealer’s expectations on the Trade Date),
or (ii) to enable Dealer to effect purchases or sales of Shares or Share Termination Delivery Units in connection with its commercially
reasonable hedging, hedge unwind or settlement activity hereunder in a manner that would (assuming, in the case of purchases, 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 (whether or not such requirements, policies or procedures are imposed by
law or have been voluntarily adopted by Dealer and, in the case of policies or procedures, so long as such policies or procedures
are consistently applied to transactions similar to the Transaction); provided that no such Exercise Date, Settlement
Date or other date of valuation, payment or delivery may be postponed or added more than 40 Trading Days after the original Exercise
Date, Settlement Date or other date of valuation, payment or delivery, as the case may be.


 


(b)               
Additional Termination Events.


 


(i)       The
occurrence of an event of default with respect to Counterparty under the terms of the Convertible Securities as set forth in Section
6.01 of the Indenture, which default has resulted in the Convertible Securities becoming due and payable under the terms thereof,
shall constitute 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 and to determine the amount payable pursuant to Section 6(e) of the Agreement.


 






    21


     


    

 


(ii)       As
promptly as practicable (but in any event within ten Scheduled Trading Days) following any Repurchase Event (as defined
below), Counterparty may notify Dealer in writing of such Repurchase Event and the number of Convertible Securities subject
to such Repurchase Event (any such notice, a “Convertible Securities Repurchase Notice”) [; provided
that any “Convertible Securities Repurchase Notice” delivered to Dealer pursuant to the Base Call Option
Transaction Confirmation shall be deemed to be a Convertible Securities Repurchase Notice pursuant to this Confirmation and
the terms of such Convertible Securities Repurchase Notice shall apply, mutatis mutandis, to this Confirmation]20.
Notwithstanding anything to the contrary in this Confirmation, the receipt by Dealer from Counterparty of (x) any Convertible
Securities Repurchase Notice, and (y) a written representation and warranty by Counterparty that, as of the date of such
Convertible Securities Repurchase Notice, Counterparty is not in possession of any material nonpublic information regarding
Counterparty or the Shares, in each case, within the applicable time period set forth in the preceding sentence, shall
constitute an Additional Termination Event as provided in this Section 8(b)(ii). Upon receipt of any such Convertible
Securities Repurchase Notice and the related written representation and warranty, Dealer shall promptly designate an Exchange
Business Day following receipt of such Convertible Securities Repurchase Notice (which in no event shall be earlier than the
related repurchase date for such Convertible Securities) 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 Securities specified in such Convertible Securities Repurchase Notice [minus the number of
 “Repurchase Options” (as defined in the Base Call Option Transaction Confirmation), if any, that relate to such
Convertible Securities (and for purposes of determining whether any Options under this Confirmation or under the Base Call
Option Transaction Confirmation will be among the Repurchase Options hereunder or under, and as defined in, the Base Call
Option Transaction Confirmation, the Convertible Securities specified in such Convertible Securities Repurchase Notice shall
be allocated first to the Base Call Option Transaction Confirmation until all Options thereunder are exercised or
terminated)]21 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 and (3) the terminated portion of
the Transaction were the sole Affected Transaction. “Repurchase Event” means that (i) any Convertible
Securities are redeemed or repurchased (whether pursuant to Section 15.02 of the Indenture or otherwise) by Counterparty or
any of its subsidiaries (including in connection with, or as a result of, a “Fundamental Change” (as defined in
the Indenture), a tender offer, exchange offer or similar transaction or for any other reason), (ii) any Convertible
Securities are delivered to Counterparty in exchange for delivery of any property or assets of Counterparty or any of its
subsidiaries (howsoever described), (iii) any principal of any of the Convertible Securities is repaid prior to the final
maturity date of the Convertible Securities, or (iv) any Convertible Securities are exchanged by or for the benefit of the
 “Holders” (as such term is defined in the Indenture) thereof for any other securities of Counterparty or any of
its affiliates (or any other property, or any combination thereof) pursuant to any exchange offer or similar transaction. For
the avoidance of doubt, any conversion of Convertible Securities (whether into cash, Shares, “Reference Property”
(as defined in the Indenture) or any combination thereof) pursuant to the terms of the Indenture shall not constitute a
Repurchase Event.


 


(iii)       Notwithstanding
anything to the contrary in this Confirmation, upon any Early Conversion in respect of which the relevant converting Holder has
satisfied the requirements to conversion set forth in Section 14.02(b) of the Indenture:


 


		(A)	Counterparty shall, as promptly as practicable (but in any event within five Scheduled Trading
Days of the “Conversion Date” (as defined in the Indenture) for such Early Conversion), provide written notice (an
 “Early Conversion Notice”) to Dealer specifying the number of Convertible Securities surrendered for conversion
on such Conversion Date (such Convertible Securities, the “Affected Convertible Securities”), and the giving
of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this Section 8(b)(iii); provided
that any such Early Conversion Notice shall contain a written acknowledgement by Counterparty of its responsibilities under applicable
securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, in
respect of the delivery of such Early Conversion Notice;



 





 



 


20
Include for additional capped call.


21
Include for additional capped call.


 






    22


     


    

 


		(B)	upon receipt of any such Early Conversion Notice, within a commercially reasonable period of time
thereafter, Dealer shall designate an Exchange Business Day as an Early Termination
Date (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related settlement date for such
Affected Convertible Securities) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected
Number of Options”) equal to the lesser of (x) the number of Affected Convertible Securities [minus the “Affected
Number of Options” (as defined in the Base Call Option Transaction Confirmation), if any, that relate to such Affected Convertible
Securities]22 and (y) the Number
of Options as of the “Conversion Date” (as defined in the Indenture) for such Early Conversion;



  


		(C)	any payment hereunder with respect to such termination shall be calculated pursuant to Section
6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to
the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party
with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction;
provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable Percentage,
multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid
(if any) and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected
Convertible Security upon conversion of such Affected Convertible Security (in each case, including any cash and/or Shares payable
and/or deliverable as the result of a Make-Whole Fundamental Change Adjustment (if any)), multiplied by the Share Obligation
Value Price on the settlement date of the Affected Convertible Securities, minus (y) USD 1,000;



 


		(D)	for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction
pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions,
adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred,
(y) no adjustment to the conversion rate for the Convertible Securities has occurred pursuant to any Make-Whole Fundamental Change
Adjustment or Discretionary Adjustment and (z) the corresponding Convertible Securities remain outstanding; and



 


		(E)	the Transaction shall remain in full force and effect, except that, as of the “Conversion
Date” (as defined in the Indenture) for such Early Conversion, the Number of Options shall be reduced by the Affected Number
of Options.



 





 



 


22
Include for additional capped call.


 






    23


     


    

 


(c)                
 Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events. If (a) an Early Termination
Date (whether as a result of an Event of Default or a Termination Event) occurs or is designated with respect to the Transaction
or (b) the Transaction is cancelled or terminated upon the occurrence of an Extraordinary Event (except as a result of (i) a Nationalization,
Insolvency or Merger Event in which the consideration to be paid to all holders of Shares consists solely of cash, (ii) a Merger
Event or Tender Offer that is within Counterparty’s control, or (iii) an Event of Default in which Counterparty is the Defaulting
Party or a Termination Event in which Counterparty is the Affected Party other than an Event of Default of the type described in
Section 5(a)(iii), (v), (vi), (vii) or (viii) of the Agreement or a Termination Event of the type described in Section 5(b) of
the Agreement, in each case, that resulted from an event or events outside Counterparty’s control), and if Dealer would owe
any amount to Counterparty pursuant to Section 6(d)(ii) and 6(e) of the Agreement (any such amount, a “Payment Obligation”),
then Dealer shall satisfy the Payment Obligation by the Share Termination Alternative (as defined below) unless (a) Counterparty
gives irrevocable telephonic notice to Dealer, confirmed in writing within one Scheduled Trading Day, no later than 12:00 p.m.
(New York City time) on the Merger Date, Tender Offer Date, Announcement Date (in the case of a Nationalization, Insolvency or
Delisting), Early Termination Date or date of cancellation, as applicable, of its election that the Share Termination Alternative
shall not apply, (b) as of the date of such election, Counterparty represents that is not in possession of any material nonpublic
information regarding Counterparty or the Shares, and that such election is being made in good faith and not as part of a plan
or scheme to evade compliance with the federal securities laws, and (c) Dealer agrees, in its sole discretion, to such election,
in which case the provisions of Section 6(d)(ii) and 6(e) of the Agreement, as the case may be, shall apply.


 


	Share Termination Alternative: 	If applicable, 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 Section 6(d)(ii) of the Agreement or such later date or dates as Dealer
may commercially reasonably determine (the “Share Termination Payment Date”) taking into account commercially
reasonable hedging or hedge unwind activity, in satisfaction of the Payment Obligation.




 





	Share Termination Delivery Property:	A number of Share Termination Delivery Units, as calculated by the Calculation Agent in good faith
and in a commercially reasonable manner, equal to the Payment Obligation divided by the Share Termination Unit Price. The Calculation
Agent shall, in good faith and in a commercially reasonable manner, 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 a commercially reasonable manner
and notified by the Calculation Agent to Dealer at the time of notification of the Payment Obligation.




 






    24


     


    

 


 



 


	Share Termination Delivery Unit: 	In the case of a Termination Event (other than on account of an Insolvency, Nationalization or Merger 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 and 9.11 of the Equity Definitions 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”; provided 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 as a result of the fact that Counterparty is the issuer
of any Share Termination Delivery Units (or any part thereof).




 






    25


     


    

 


(d)   
 Disposition of Hedge Shares. Counterparty hereby agrees that if, in the good faith reasonable judgment of Dealer,
based on the advice of counsel, the Shares (the “Hedge Shares”) acquired by Dealer for the purpose of hedging
its obligations pursuant to the Transaction in a commercially reasonable manner cannot be sold in the U.S. 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 reasonably 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, (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 (in all cases of (A)-(E) above,
as would be usual and customary for offerings for companies of similar size and industry); provided that, if Counterparty elects
clause (i) above but the items referred to therein are not completed in a timely manner, or 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(d) shall apply
at the election of Counterparty; (ii) in order to allow Dealer to sell the Hedge Shares in a private placement, enter into a private
placement agreement substantially similar to private placement purchase agreements customary for private placements of equity securities
of similar size and industry, in form and substance commercially reasonably satisfactory to Dealer, including using reasonable
efforts to include 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), and best efforts obligations
to provide opinions and certificates and such other documentation as is customary for private placements agreements for transactions
of similar size and type, as is commercially 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 good faith, commercially reasonable judgment, to compensate
Dealer for any commercially reasonable discount from the public market price of the Shares incurred on the sale of Hedge Shares
in a private placement); or (iii) purchase the Hedge Shares from Dealer at the then-current market price on such Exchange Business
Days, and in the amounts and at such time(s), commercially reasonably requested by Dealer. This Section 8(d) shall survive
the termination, expiration or early unwind of the Transaction.


 






    26


     


    

 


(e)    
 Repurchase and Conversion Rate Adjustment Notices. Counterparty shall, at least two Exchange Business Days prior
to any day on which Counterparty effects any repurchase of Shares or consummates or otherwise engages in any transaction or event
(a “Conversion Rate Adjustment Event”) that could reasonably be expected to lead to an increase in the “Conversion
Rate” (as defined in the Indenture), 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, the Notice
Percentage would reasonably be expected to be (i) greater than [___]23%
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); provided that Counterparty may provide
Dealer advance notice on or prior to any such day to the extent it expects repurchases effected on such day may result in an obligation
to deliver a Repurchase Notice (and in such case, any such advance notice shall be deemed a Repurchase Notice to the maximum extent
it expects that repurchases set forth in such advance notice as if Counterparty had executed such repurchases) and in the case
of any repurchases of Shares pursuant to a plan under Rule 10b5-1 under the Exchange Act, Counterparty may elect to satisfy such
requirement by promptly giving Dealer written notice of entry into such plan, the maximum number of Shares that may be purchased
thereunder and the approximate dates or periods during which such repurchases may occur (with such maximum number of Shares deemed
repurchased on the date of such notice for purposes of this Section 8(e)). The “Notice Percentage” as of any
day is the fraction, expressed as a percentage, the numerator of which is the Number of Shares plus the number of Shares underlying
any other convertible bond hedge transactions or similar call options sold by Dealer to Counterparty 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 (including losses relating to the 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 this Transaction), 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 or under any state or federal law, regulation or regulatory order, 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 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 in each case relating to or arising out of such failure.
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 and shall inure to the benefit of any permitted assignee
of Dealer. Counterparty will not be liable under this indemnity provision to the extent any loss, claim, damage, liability or expense
is found in a final judgment by a court to have resulted from Dealer’s gross negligence or willful misconduct.


 





 



 


23
To be 0.5% higher than the number of Shares underlying the capped call (including any additional capped call) of the Dealer with
the highest Applicable Percentage.


 






    27


     


    

 


(f)      Transfer
and Assignment. Either party may transfer or assign 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; provided that
Dealer may transfer or assign without any consent of Counterparty its rights and obligations hereunder, in whole or in part,
to any person, or any person whose obligations would be guaranteed by a person, in either case, with a rating (i) for its
long-term, unsecured and unsubordinated indebtedness at least equivalent to Dealer’s (or its ultimate parent’s)
or (ii) that is no lower than A3 from Moody’s Investor Service, Inc. (or its successor) or A- from Standard and Poor's
Rating Group, Inc. (or its successor); provided further that, at the time of such transfer or assignment (i) both the
Dealer and transferee in any such transfer or assignment are a “dealer in securities” within the meaning of
Section 475(c)(1) of the Code or the transfer or assignment does not result in a deemed exchange by Counterparty within the
meaning of Section 1001 of the Code, (ii) after any such transfer, Counterparty will not, as a result of any withholding or
deduction made by the transferee or assignee as a result of any Tax, receive from the transferee or assignee on any payment
date or delivery date (after accounting for amounts paid by the transferee or assignee under Section 2(d)(i)(4) of the
Agreement as well as such withholding or deduction) an amount or a number of Shares, as applicable, lower than the amount or
the number of Shares, as applicable, that Dealer would have been required to pay or deliver to Counterparty in the absence of
such Transfer (except to the extent such lower amount or number results from a change in law after the date of such
Transfer), and (iii) Dealer shall cause the transferee or assignee to make such Payee Tax Representations and to provide such
tax documentation as may reasonably be requested by Counterparty to permit Counterparty to make any necessary determinations
pursuant to clause (ii) of this proviso. If at any time at which (1) the Equity Percentage exceeds 8.0% or (2) 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 Section 203 of the Delaware General
Corporation Law or other federal, state or local law, rule, regulation or regulatory order or organizational documents or
contracts of Counterparty 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 in excess of a number of Shares equal to (x) the number of Shares that would give rise to reporting, registration,
filing or notification obligations or other requirements (including obtaining prior approval by a state or federal regulator,
but excluding reporting obligations arising under Section 13 of the Exchange Act) of a Dealer Person under Applicable
Restrictions and with respect to which such requirements have not been met or the relevant approval has not been received, or
that would have any other adverse effect on a Dealer Person, under Applicable Restrictions minus (y) 1% of the number
of Shares outstanding on the date of determination (either such condition described in clause (1) or (2), an “Excess
Ownership Position”), Dealer, in its reasonable discretion, is unable to effect a transfer or assignment to a third
party in accordance with the requirements set forth above after its commercially reasonable efforts on pricing and 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 an Excess Ownership Position would no longer exist following the resulting
partial termination of the Transaction (after taking into account commercially reasonable adjustments to Dealer’s
commercially reasonable Hedge Positions from such partial termination). 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 or Section 8(c) 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 were the sole Affected
Party with respect to such partial termination, (iii) such portion of the Transaction were the only Terminated Transaction
and (iv) Dealer were the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement and
to determine the amount payable pursuant to Section 6(e) of the Agreement. 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 any “group” (within the meaning of Section 13 of the Exchange Act)
of which Dealer is or may be deemed to be a part (collectively, “Dealer Group”) 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. In the case of
a transfer or assignment by Counterparty of its rights and obligations hereunder and under the Agreement, in whole or in part
(any such Options so transferred or assigned, the “Transfer Options”), to any party, withholding of such
consent by Dealer shall not be considered unreasonable if such transfer or assignment does not meet the reasonable conditions
that Dealer may impose including, but not limited, to the following conditions:


 






    28


     


    

 


(A)       With
respect to any Transfer Options, Counterparty shall not be released from its notice and indemnification obligations pursuant to
Section 8(e) or any obligations under Section 2 (regarding Extraordinary Events) or 8(d) of this Confirmation;


 


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


 


(C)       Such
transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (including, but not
limited to, undertakings 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 customary legal opinions with respect to securities laws and other matters by such third party and Counterparty as are reasonably
requested by, and reasonably satisfactory to, Dealer;


 


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


 


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


 


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


 


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


 


(g)               
Staggered Settlement. If upon advice of counsel with respect to applicable legal and regulatory requirements, including
any requirements relating to Dealer’s 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 (the first of which will be such Nominal
Settlement Date and the last of which will be no later than the twentieth (20th) Exchange Business Day following such Nominal Settlement
Date) and the number of Shares that it will deliver on each Staggered Settlement Date;


 






    29


     


    

 



 


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


 


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


 


(h)               
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.


 


(i)                 
No Netting and Set-off. The provisions of Section 2(c) of the Agreement shall not apply to the Transaction. Each
party waives any and all rights it may have to set-off delivery or payment obligations it owes to the other party under the Transaction
against any delivery or payment obligations owed to it by the other party, whether arising under the Agreement, under any other
agreement between parties hereto, by operation of law or otherwise.


 


(j)                 
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 the obligations of Counterparty under this Confirmation are
not secured by any collateral that would otherwise secure the obligations of Counterparty herein under or pursuant to any other
agreement.


 


(k)               
Early Unwind. In the event the sale by Counterparty of the [Base Convertible Securities]24[Optional
Convertible Securities]25 is not
consummated pursuant to the Purchase Agreement for any reason by the close of business in New York on [_______], 202026
(or such later date as agreed upon by the parties) ([_______], 2020 or such later date being the “Early
Unwind Date”), the Transaction shall automatically terminate (the “Early Unwind”) on the Early Unwind
Date and the Transaction and all of the respective rights and obligations of Dealer and Counterparty hereunder shall be cancelled
and terminated. Following such termination and cancellation, 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. Dealer and Counterparty
represent and acknowledge to the other that upon an Early Unwind, all obligations with respect to the Transaction shall be deemed
fully and finally discharged.


 





 



 


24
Include for base capped call.


25
Include for additional capped call.


26
For the base capped call, to be the scheduled closing date for the Base Convertible Securities. For the additional capped call,
to be the scheduled closing date for the Additional Convertible Securities.


 



    30


     


    




 


(l)                  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 “Daily VWAP” (as defined in the Indenture);
(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 “Daily VWAP” (as defined in the Indenture), each in a manner that may be adverse to
Counterparty; and (E) the Transaction is a derivatives transaction in which it has granted Dealer an option, and Dealer may
purchase shares for its own account at an average price that may be greater than, or less than, the price paid by
Counterparty under the terms of the Transaction.


 


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


 


(n)               
Governing Law; Exclusive Jurisdiction; Waiver of Jury.


 


(i)       THE
AGREEMENT, THIS CONFIRMATION AND ALL MATTERS ARISING IN CONNECTION WITH THE AGREEMENT AND THIS CONFIRMATION SHALL BE GOVERNED BY,
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO ITS CHOICE OF LAW DOCTRINE,
OTHER THAN TITLE 14 OF ARTICLE 5 OF THE NEW YORK GENERAL OBLIGATIONS LAW).


 


(ii)       Section
13(b) of the Agreement is deleted in its entirety and replaced by the following:


 


“Each
party hereby irrevocably and unconditionally submits for itself and its property in any suit, legal action or proceeding
relating to this Confirmation or the Agreement, or for recognition and enforcement of any judgment in respect thereof, (each,
 “Proceedings”) to the exclusive jurisdiction of the Supreme Court of the State of New York, sitting in New York
County, the courts of the United States of America for the Southern District of New York and appellate courts from any
thereof. Nothing in this Confirmation or the Agreement precludes either party from bringing Proceedings in any other
jurisdiction if (A) the courts of the State of New York or the United States of America for the Southern District of New York
lack jurisdiction over the parties or the subject matter of the Proceedings or decline to accept the Proceedings on the
grounds of lacking such jurisdiction; (B) the Proceedings are commenced by a party for the purpose of enforcing against the
other party’s property, assets or estate any decision or judgment rendered by any court in which Proceedings may be
brought as provided hereunder; (C) the Proceedings are commenced to appeal any such court’s decision or judgment to any
higher court with competent appellate jurisdiction over that court’s decisions or judgments if that higher court is
located outside the State of New York or Borough of Manhattan, such as a federal court of appeals or the U.S. Supreme Court;
or (D) any suit, action or proceeding has been commenced in another jurisdiction by or against the other party or against its
property, assets or estate and, in order to exercise or protect its rights, interests or remedies under this Confirmation or
the Agreement, the party (1) joins, files a claim, or takes any other action, in any such suit, action or proceeding, or (2)
otherwise commences any Proceeding in that other jurisdiction as the result of that other suit, action or proceeding
having commenced in that other jurisdiction.”


 






    31


     


    

 


(iii)       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 THIS CONFIRMATION OR THE AGREEMENT.


 


(o)               
Amendment. This Confirmation and the Agreement may not be modified, amended or supplemented, except in a written
instrument signed by Counterparty and Dealer.


 


(p)               
Counterparts. This Confirmation may be executed in several counterparts, each of which shall be deemed an original
but all of which together shall constitute one and the same instrument.


 


(q)               
Payee Tax Representations.


 


For the purpose of Section 3(f)
of the Agreement, Counterparty makes the following representation to Dealer:


 


Counterparty is a corporation and
a U.S. person (as that term is defined in Section 7701(a)(30) of the Code and used in Section 1.1441-4(a)(3)(ii) of the Treasury
Regulations) for U.S. federal income tax purposes.


 


For the purpose of Section 3(f)
of the Agreement, Dealer makes the following representations to Counterparty:


 


[Dealer is a U.S. person (as that
term is defined in Section 7701(a)(30) and used in Section 1.1441-4(a)(3)(ii) of the Treasury Regulations) for U.S. federal income
tax purposes.]


 


(r)                 
Tax Matters.  For purposes of Sections 4(a)(i) and (ii) of the Agreement, Counterparty agrees to deliver to
Dealer, upon request, one duly executed and completed United States Internal Revenue Service Form W-9 (or successor thereto). Dealer
shall provide to Counterparty one duly executed and completed United States Internal Revenue Service Form W-9 or applicable W-8
(or successor thereto), upon reasonable request of Counterparty.


 


(s)                
Withholding Tax with Respect to Non-US Counterparties. “Indemnifiable Tax” as defined in Section 14 of
the Agreement shall not include (i) 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”)
or (ii) any tax imposed on amounts treated as dividends from sources within the United States under Section 871(m) of the Code
(or any Treasury regulations or other guidance issued thereunder). For the avoidance of doubt, a FATCA Withholding Tax and any
tax imposed under Section 871(m) of the Code is a Tax the deduction or withholding of which is required by applicable law for the
purposes of Section 2(d) of the Agreement.


 


(t)                 
Amendment to Equity Definitions.


 


(i)       Solely
in respect of adjustments to the Cap Price pursuant to Section 8(t), Section 11.2(e)(vii) of the Equity Definitions is hereby
amended by deleting the words “that may have a diluting or concentrative effect on the theoretical value of the
relevant Shares” and replacing them with the words “that is the result of a corporate event involving the Issuer
or its securities that has, in the commercially reasonable judgment of the Calculation Agent, a material economic effect on
the Shares or options on the Shares; provided that such event is not based on (a) an observable market, other than the
market for Counterparty’s own stock or (b) an observable index, other than an index calculated and measured solely by
reference to Counterparty’s own operations.”.


 






    32


     


    

 


(ii)       Section
12.9(b)(i) of the Equity Definitions is hereby amended by (1) replacing “either party may elect” with “Dealer
may elect or, if Counterparty represents to Dealer in writing at the time of such election that (i) it is not aware of any material
nonpublic information with respect to Counterparty or the Shares and (ii) it is not making such election as part of a plan or scheme
to evade compliance with the U.S. federal securities laws, Counterparty may elect”.


 


(u)               
Other Adjustments Pursuant to the Equity Definitions. Notwithstanding anything to the contrary in the Agreement,
the Equity Definitions or this Confirmation, upon the occurrence of a Merger Date, the occurrence of a Tender Offer Date, or declaration
by Counterparty of the terms of any Potential Adjustment Event, the Calculation Agent shall determine in good faith and in a commercially
reasonable manner whether such occurrence or declaration, as applicable, has had a material economic effect on the Transaction
and, if so, shall, in its good faith and commercially reasonable discretion, adjust the Cap Price to preserve the fair value of
the Options taking into account, for the avoidance of doubt, such economic effect on both the Strike Price and Cap Price (provided
that in no event shall the Cap Price be less than the Strike Price; provided further that any adjustment to the Cap
Price made pursuant to this Section 8(t) shall be made without duplication of any other adjustment hereunder). For purposes of
this Section 8(t), the terms “Potential Adjustment Event,” “Merger Event,” and “Tender Offer”
shall each have the meanings assigned to each such term in the Equity Definitions (as amended by Section 8(s)(i)).


 


(v)               
Notice of Certain Other Events. (A) Counterparty shall give Dealer commercially reasonable advance (but in no event
less than one Exchange Business Day) written notice of the section or sections of the Indenture and, if applicable, the formula
therein, pursuant to which any adjustment will be made to the Convertible Securities in connection with any Potential Adjustment
Event, Merger Event or Tender Offer and (B) promptly following any such adjustment, Counterparty shall give Dealer written notice
of the details of such adjustment.


 


(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.


 






    33


     


    

 


(x)               
[Insert Any Dealer Agency and QFC Language, If Applicable]


 


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 Dealer.


 


	 	Yours faithfully,
	 	 
	 	[DEALER]
	 	 
	 	By:	 
	 	 	Name:
	 	 	Title:




 


	Agreed and Accepted By:	 
	 	 
	SPLUNK, INC.	 
	 	 
	By:	 	 
	 	Name:	 
	 	Title: