Exhibit 4.37





 


February 26, 2019


To: NIO Inc.

Building 20, No. 56 AnTuo Road, Jiading District


Shanghai, 201804


People’s Republic of China


Attention: Louis T. Hsieh, Chief Financial
Officer




Telephone No.:    +86 (21) 6908 3306


Facsimile No.:      +86 (21) 3913 0192  



 


	From:	Morgan Stanley & Co. LLC
	 	1585 Broadway, 5th Floor
	 	New York, NY 10036


 


Re: Second Additional Call Option Transaction


 


The purpose of this
letter agreement (this “Confirmation”) is to confirm the terms and conditions of the call option transaction
entered into between Morgan Stanley & Co. LLC (“Dealer”) and NIO Inc. (“Counterparty”)
as of the Trade Date specified below (the “Transaction”). This letter agreement constitutes a “Confirmation”
as referred to in the ISDA Master Agreement specified below. Each party further agrees that this Confirmation together with the
Agreement evidence a complete binding agreement between Counterparty and Dealer as to the subject matter and terms of the Transaction
to which this Confirmation relates, and shall supersede all prior or contemporaneous written or oral communications with respect
thereto.


 


The definitions and
provisions contained in the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”), as published
by the International Swaps and Derivatives Association, Inc. (“ISDA”) are incorporated into this Confirmation.
In the event of any inconsistency between the Equity Definitions and this Confirmation, this Confirmation shall govern. Certain
defined terms used herein are based on terms that are defined in the Offering Memorandum dated January 30, 2019 (the “Offering
Memorandum”) relating to the 4.50% Convertible Senior Notes due 2024 (as originally issued by Counterparty, the “Convertible
Notes” and each USD 1,000 principal amount of Convertible Notes, a “Convertible Note”) issued by Counterparty
in an aggregate initial principal amount of USD 650,000,000 (as increased by an aggregate principal amount of USD 100,000,000 pursuant
to the exercise by the Initial Purchasers (as defined herein) of their option to purchase additional Convertible Notes pursuant
to the Purchase Agreement (as defined herein)) pursuant to an Indenture dated February 4, 2019 between Counterparty and The Bank
of New York Mellon, as trustee (the “Indenture”). In the event of any inconsistency between the terms defined
in the Offering Memorandum, the Indenture and this Confirmation, this Confirmation shall govern. The parties acknowledge that this
Confirmation is entered into on the date hereof with the understanding that (i) definitions set forth in the Indenture which are
also defined herein by reference to the Indenture and (ii) sections of the Indenture that are referred to herein will conform to
the descriptions thereof in the Offering Memorandum. If any such definitions in the Indenture or any such sections of the Indenture
differ from the descriptions thereof in the Offering Memorandum, the descriptions thereof in the Offering Memorandum will govern
for purposes of this Confirmation. The parties further acknowledge that the Indenture section numbers used herein are based on
the Indenture as executed. Subject to the foregoing, references to the Indenture herein are references to the Indenture as in effect
on the date of its execution, and if the Indenture is amended or supplemented following such date (other than any amendment or
supplement (x) pursuant to Section 10.01(i) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture
to the description of Convertible Notes in the Offering Memorandum, and (y) pursuant to Section 14.07(a) of the Indenture, subject,
in the case of this clause (y), to the second paragraph under “Method of Adjustment” in Section 3), any such amendment
or supplement will be disregarded for purposes of this Confirmation (other than as provided in Section 9(i)(iii) below) unless
the parties agree otherwise in writing. For the avoidance of doubt, adjustments pursuant to any Dilution Adjustment Provision shall
not constitute amendment, modification, supplement, or waiver in respect of any term of the Indenture or the Convertible Notes
for any purpose under this paragraph and under Section 9(i)(iii).


 


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


 




     


     


    

 


1.          This
Confirmation evidences a complete and binding agreement between Dealer and Counterparty as to the terms of the Transaction to which
this Confirmation relates. This Confirmation shall supplement, form a part of, and be subject to an agreement in the form of the
2002 ISDA Master Agreement (the “Agreement”) as if Dealer and Counterparty had executed an agreement in such
form (but without any Schedule except for (i) the election of the laws of the State of New York as the governing law (without reference
to choice of law doctrine) and (ii) the agreement of the parties hereto that, following the payment of the Premium and the delivery
to Dealer of the opinions of counsel as required pursuant to Section 9(a), the condition precedent in Section 2(a)(iii) of the
Agreement shall not apply to a payment or delivery owing by Dealer to Counterparty (it being understood that such condition precedent
will continue to apply and this clause (ii) will have no effect with respect to a Potential Event of Default, Event of Default
and/or Early Termination Date arising under, or with respect to, Section 5(a)(ii) or 5(a)(iv) of the Agreement)) on the Trade Date.


 


In the event of any inconsistency
between provisions of the Agreement and this Confirmation, this Confirmation will prevail for the purpose of the Transaction to
which this Confirmation relates. The parties hereby agree that no transaction other than the Transaction to which this Confirmation
relates shall be governed by the Agreement. If there exists any ISDA Master Agreement between Dealer and Counterparty or any confirmation
or other agreement between Dealer and Counterparty pursuant to which an ISDA Master Agreement is deemed to exist between Dealer
and Counterparty, then notwithstanding anything to the contrary in such ISDA Master Agreement, such confirmation or agreement or
any other agreement to which Dealer and Counterparty are parties, the Transaction shall not be considered a Transaction under,
or otherwise governed by, such existing or deemed ISDA Master Agreement.


 


2.          The
terms of the particular Transaction to which this Confirmation relates are as follows:


 


General Terms.


  


	Trade Date:	February 26, 2019
	 	 
	Effective Date:	The Trade Date.
	 	 
	Option Style:	“Modified American”, as described under “Procedures for Exercise” below
	 	 
	Option Type:	Call
	 	 
	Buyer:	Counterparty
	 	 
	Seller:	Dealer
	 	 
	Shares:	The American Depositary Shares of Counterparty issued or deemed issued under the Deposit Agreement (as defined below) (Symbol: “NIO”), each representing as of the date hereof one Underlying Share.
	 	 
	Underlying Shares:	The Class A ordinary shares of Counterparty, nominal value USD $0.00025 per Underlying Share.
	 	 
	Number of Options:	48,227.  For the avoidance of doubt, the Number of Options shall be reduced by any Options exercised by Counterparty.  In no event will the Number of Options be less than zero.
	 	 
	Underlying Shares Issuer:	Counterparty
	 	 
	Applicable Percentage:	 20%
	 	 
	Option Entitlement:	A number equal to the product of the Applicable Percentage and 105.1359.


 




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	Strike Price:	USD 9.5115
	 	 
	Cap Price:	USD 14.9200
	 	 
	Premium:	USD 1,126,582.72
	 	 
	Premium Payment Date:	February 28, 2019
	 	 
	Exchange:	The New York Stock Exchange
	 	 
	Related Exchange(s):	All Exchanges
	 	 
	Excluded Provisions:	Section 14.04(h) and Section 14.03 of the Indenture.


 


Procedures for Exercise.


 


	Expiration Time:	The Valuation Time
	 	 
	Expiration Date:	February 1, 2024, subject to earlier exercise.
	 	 
	Multiple Exercise:	Applicable, as described under “Automatic Exercise” below.
	 	 
	Automatic Exercise:	Notwithstanding Section 3.4 of the Equity Definitions, all Options then outstanding as of 5:00 p.m. New York City time on the Expiration Date will be deemed to be automatically exercised; provided that, for the avoidance of doubt, no such automatic exercise pursuant to this paragraph will occur if the Relevant Price for each Valid Day during the applicable Settlement Averaging Period is less than or equal to the Strike Price.
	 	 
	 	Notwithstanding the foregoing, in no event shall the number of Options that are exercised or deemed exercised hereunder exceed the Number of Options.
	 	 
	Valuation Time:	At the close of trading of the regular trading session on the Exchange; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in its reasonable discretion.
	 	 
	Market Disruption Event:	Section 6.3(a) of the Equity Definitions is hereby replaced in its entirety by the following:
	 	 
	 	“‘Market Disruption Event’ means, in respect of a Share, (i) a failure by the primary United States national or regional securities exchange or market on which the Shares are listed or admitted for trading to open for trading during its regular trading session or (ii) the occurrence or existence prior to 1:00 p.m. (New York City time) on any Scheduled Valid Day for the Shares for more than one half-hour period in the aggregate during regular trading hours of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant stock exchange or otherwise) in the Shares or in any options contracts or futures contracts relating to the Shares.”


 




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Settlement
Terms.


 


	Settlement Method Election:	Applicable; provided that (i) Section 7.1 of the Equity Definitions is hereby amended by deleting the word “Physical” in the sixth line thereof and replacing it with the words “Net Share”; and (ii) as of such notice delivery date, Counterparty shall be deemed to have made the following representations:
	 	 
	 	(A) Counterparty is not aware of any material non-public information with respect to Counterparty, the Underlying Shares Issuer (if other than Counterparty), the Underlying Shares or the Shares;
	 	 
	 	(B) Counterparty is electing Cash Settlement in good faith and not as part of a plan or scheme to evade compliance with the U.S. federal securities laws; Counterparty is not electing Cash Settlement to create actual or apparent trading activity in the Shares and/or Underlying Shares (or any security convertible into or exchangeable for the Shares and/or Underlying Shares) or to raise or depress or otherwise manipulate the price of the Shares and/or Underlying Shares (or any security convertible into or exchangeable for the Shares and/or Underlying Shares) or otherwise in violation of the Exchange Act; and Counterparty has not entered into or altered any hedging transaction relating to the Shares or the Underlying Shares corresponding to or offsetting the Transaction;
	 	 
	 	(C) such election and performance of its obligations under this Confirmation do not violate or conflict with any law applicable to it, any provision of its constitutional documents, any order or judgment of any court or other agency of government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets; and
	 	 
	 	(D)  any transaction that Dealer makes with respect to the Shares and/or the Underlying Shares during the period beginning at the time that Counterparty delivers such notice and ending at the close of business on the final day of the Settlement Averaging Period shall be made by Dealer at Dealer’s sole discretion for Dealer’s own account and Counterparty shall not have, and shall not attempt to exercise, any influence over how, when, whether or at what price Dealer effects such transactions, including, without limitation, the prices paid or received by Dealer per Share or Underlying Share pursuant to such transactions, or whether such transactions are made on any securities exchange or privately.
	 	 
	Default Settlement Method:	Net Share Settlement


 




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	Settlement Method Election Date:	The third Scheduled Trading Day immediately preceding the first Scheduled Valid Day of the Settlement Averaging Period.
	 	 
	Net Share Settlement:	Dealer will deliver to Counterparty, on the relevant Settlement Date, a number of Shares equal to the Net Shares in respect of any Option exercised or deemed exercised hereunder.  In no event will the Net Shares be less than zero.
	 	 
	Net Shares:	In respect of any Option exercised or deemed exercised, a number of Shares equal to the sum of the quotients, for each Valid Day during the Settlement Averaging Period for such Option, of (i) (A) the Daily Option Value for such Valid Day, divided by (B) the Relevant Price on such Valid Day, divided by (ii) the number of Valid Days in the Settlement Averaging Period.
	 	 
	 	Dealer will pay cash in lieu of delivering any fractional Shares to be delivered with respect to any Net Shares valued at the Relevant Price for the last Valid Day of the Settlement Averaging Period.
	 	 
	Cash Settlement:	If Cash Settlement is applicable to any Option exercised or deemed exercised hereunder, in lieu of Section 8.1 of the Equity Definitions, Dealer will pay to Counterparty, on the relevant Settlement Date for each such Option, an amount of cash (the “Cash Settlement Amount”) equal to the sum, for each Valid Day during the Settlement Averaging Period for such Option, of (i) the Daily Option Value for such Valid Day, divided by (ii) the number of Valid Days in the Settlement Averaging Period.  
	 	 
	Daily Option Value:	For any Valid Day, an amount equal to (i) the Option Entitlement on such Valid Day, multiplied by (ii) (A) the lesser of the Relevant Price on such Valid Day and the Cap Price, less (B) the Strike Price on such Valid Day; provided that if the calculation contained in clause (ii) above results in a negative number, the Daily Option Value for such Valid Day shall be deemed to be zero.  In no event will the Daily Option Value be less than zero.
	 	 
	Valid Day:	A day on which (i) there is no Market Disruption Event and (ii) trading in the Shares generally occurs on the Exchange or, if the Shares are not then listed on the Exchange, on the principal other United States national or regional securities exchange on which the Shares are then listed or, if the Shares are not then listed on a United States national or regional securities exchange, on the principal other market on which the Shares are then listed or admitted for trading. If the Shares are not so listed or admitted for trading, “Valid Day” means a Business Day.
	 	 
	Scheduled Valid Day:	A day that is scheduled to be a Valid Day on the principal United States national or regional securities exchange or market on which the Shares are listed or admitted for trading.  If the Shares are not so listed or admitted for trading, “Scheduled Valid Day” means a Business Day.


 




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	Business Day:	Any day other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of New York is authorized or required by law or executive order to close or be closed.  
	 	 
	Relevant Price:	On any Valid Day, the per Share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page “NIO <equity> AQR” (or its equivalent successor if such page is not available) in respect of the period from the scheduled opening time of the Exchange to the Scheduled Closing Time of the Exchange on such Valid Day (or if such volume-weighted average price is unavailable at such time, the market value of one Share on such Valid Day, as determined by the Calculation Agent using, if practicable, a volume-weighted average method).  The Relevant Price will be determined without regard to after-hours trading or any other trading outside of the regular trading session trading hours.
	 	 
	Settlement Averaging Period:	For any Option being exercised hereunder, the 40 consecutive Valid Days commencing on, and including, the 41st Scheduled Valid Day immediately prior to the Expiration Date.
	 	 
	Settlement Date:	For any Option, the second Business Day immediately following the final Valid Day of the Settlement Averaging Period for such Option.
	 	 
	Settlement Currency:	USD
	 	 
	Other Applicable Provisions:	The provisions of Sections 9.1(c), 9.8, 9.9 and 9.11 of the Equity Definitions will be applicable, except that all references in such provisions to “Physically-settled” shall be read as references to “Net Share Settled”.  “Net Share Settled” in relation to any Option means that Net Share Settlement is applicable to that Option.
	 	 
	Representation and Agreement:	Notwithstanding anything to the contrary in the Equity Definitions (including, but not limited to, Section 9.11 thereof), the parties acknowledge that (i) any Shares delivered to Counterparty shall be, upon delivery, subject to restrictions and limitations arising from Counterparty’s status as issuer of the Underlying Shares under applicable securities laws, (ii) Dealer may deliver any Shares required to be delivered hereunder in certificated form or restricted book-entry form, in each case, in lieu of delivery through the Clearance System and (iii) any Shares delivered to Counterparty may be “restricted securities” (as defined in Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”)).


 




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3.          Additional
Terms applicable to the Transaction.


 


Adjustments applicable to the
Transaction:


 


	Potential Adjustment Events:	Notwithstanding Section 11.2(e) of the Equity Definitions (which Section shall not apply for the purposes of the Transaction, except as provided in Section 9(y) below), a “Potential Adjustment Event” means an occurrence of any event or condition, as set forth in any Dilution Adjustment Provision, that requires an adjustment to be made under the Indenture to the “Conversion Rate” or the composition of a “unit of Reference Property” or to any “Last Reported Sale Price” (each as defined in the Indenture).  For the avoidance of doubt, Dealer shall not have any delivery or payment obligation hereunder, and no adjustment shall be made to the terms of the Transaction, on account of (x) any distribution of cash, property or securities by Counterparty to holders of the Convertible Notes (upon conversion or otherwise) or (y) any other transaction in which holders of the Convertible Notes participate, in each case, in lieu of an adjustment under the Indenture of the type referred to in the immediately preceding sentence (including, without limitation, pursuant to the fourth sentence of the first paragraph of Section 14.04(c) of the Indenture or the fourth sentence of Section 14.04(d) of the Indenture).
	 	 
	Method of Adjustment:	Calculation Agent Adjustment, which means that, notwithstanding Section 11.2(c) of the Equity Definitions, (which Section shall not apply for the purposes of the Transaction, except as provided in Section 9(y) below) upon any Potential Adjustment Event, the Calculation Agent shall make an adjustment to any one or more of the Strike Price, Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction corresponding to the adjustment required to be made pursuant to the Indenture.
	 	 
	 	Notwithstanding the foregoing and “Consequences of Merger Events / Tender Offers” below:


 


		(i)	if the Calculation Agent in good faith disagrees with
any adjustment to the Convertible Notes that involves an exercise of discretion by Counterparty or its board of directors (including,
without limitation, pursuant to Section 14.05 of the Indenture, Section 14.07 of the Indenture or any supplemental indenture entered
into thereunder or in connection with any proportional adjustment or the determination of the fair value of any securities, property,
rights or other assets), then in each such case, the Calculation Agent will determine in good faith and in a commercially reasonable
manner, the adjustment to be made to any one or more of the Strike Price, Number of Options, Option Entitlement and any other
variable relevant to the exercise, settlement or payment for the Transaction in a commercially reasonable manner; provided
that, notwithstanding the foregoing, if any Potential Adjustment Event occurs during the Settlement Averaging Period but no
adjustment was made to any Convertible Note under the Indenture because the relevant Holder (as such term is defined in the Indenture)
was deemed to be a record owner of the underlying Shares on the related Conversion Date (as such term is defined in the Indenture),
then the Calculation Agent shall make a commercially reasonable adjustment, as determined by it, to the terms hereof in order
to account for such Potential Adjustment Event;



 




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		(ii)	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 have the right to adjust
any variable relevant to the exercise, settlement or payment for the Transaction as appropriate to reflect the costs (to account
solely for hedging mismatches and market losses) and expenses incurred by Dealer in connection with its hedging activities, with
such adjustments made assuming that Dealer maintains commercially reasonable hedge positions, as a result of such event or condition
not having been publicly announced prior to the beginning of such period; and



 


		(iii)	if any Potential Adjustment Event is declared and (a)
the event or condition giving rise to such Potential Adjustment Event is subsequently amended, modified, cancelled or abandoned,
(b) the “Conversion Rate” (as defined in the Indenture) is otherwise not adjusted at the time or in the manner contemplated
by the relevant Dilution Adjustment Provision based on such declaration or (c) the “Conversion Rate” (as defined in
the Indenture) is adjusted as a result of such Potential Adjustment Event and subsequently re-adjusted (each of clauses (a), (b)
and (c), a “Potential Adjustment Event Change”) then, in each case, the Calculation Agent shall have the right
to adjust any variable relevant to the exercise, settlement or payment for the Transaction as appropriate to reflect the costs
(to account solely for hedging mismatches and market losses) and expenses incurred by Dealer in connection with its hedging activities,
with such adjustments made assuming that Dealer maintains commercially reasonable hedge positions, as a result of such Potential
Adjustment Event Change.



 




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	Dilution Adjustment Provisions:	Sections 14.04(a), (b), (c), (d) and (e) and Section 14.05 of the Indenture.


 


Extraordinary Events applicable
to the Transaction:


 


	Merger Events:	Applicable; provided that notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means the occurrence of any event or condition set forth in the definition of “Merger Event” in Section 14.07 of the Indenture.
	 	 
	Tender Offers:	
        Applicable; provided
        that notwithstanding Section 12.1(d) of the Equity Definitions, a “Tender Offer” means the occurrence of any event
        or condition set forth in Section 14.04(e) of the Indenture.

         

	 	 
	Consequences of Merger Events/	 
	Tender Offers:	Notwithstanding Section 12.2 and Section 12.3 of the Equity Definitions, upon the occurrence of a Merger Event or a Tender Offer, the Calculation Agent shall make a corresponding adjustment in respect of any adjustment under the Indenture to any one or more of the nature of the Shares (in the case of a Merger Event), Strike Price, Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction to the extent that an analogous adjustment is required to be made pursuant to the Indenture in respect of such Merger Event or Tender Offer, subject to the second paragraph under “Method of Adjustment”; provided, however, that such adjustment shall be made without regard to any adjustment to the Conversion Rate pursuant to any Excluded Provision; provided further that if, with respect to a Merger Event or a Tender Offer, (i) the consideration for the Shares or Underlying Shares, as applicable, includes (or, at the option of a holder of Shares, or Underlying Shares, as applicable, may include) shares of an entity or person that is not (1) a corporation or an entity that is treated as a corporation for U.S. federal income tax purposes or (2) organized under the laws of the Cayman Islands or (ii) the Counterparty to the Transaction following such Merger Event or Tender Offer will not be a corporation or an entity that is treated as a corporation for U.S. federal income tax purposes organized under the laws of the Cayman Islands, and/or will not be the Underlying Shares Issuer then, in any case, Cancellation and Payment (Calculation Agent Determination) may apply at Dealer’s commercially reasonable election; provided further that, for the avoidance of doubt, adjustments shall be made pursuant to the provisions set forth above regardless of whether any Merger Event or Tender Offer gives rise to an Early Conversion (as defined below).


 




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	Consequences of Announcement Events:	If an Announcement Event occurs, the Calculation Agent shall determine the cumulative economic effect of such Announcement Event (it being understood that the Calculation Agent may take into account any changes to volatility in connection with such Announcement Event within a commercially reasonable (as determined by the Calculation Agent) period of time prior to or after such Announcement Event) on the Transaction on the earliest to occur of (i) the date on which the transaction described in such Announcement Event (as amended) is consummated or otherwise results in a Merger Date or Tender Offer Date, as applicable, (ii) the Valuation Date, or (iii) any earlier date of termination or cancellation with respect to any Option, and if the Calculation Agent determines that such economic effect is material and that making the relevant adjustment would be commercially reasonable, the Calculation Agent shall adjust the Cap Price to reflect such economic effect (but, for the avoidance of doubt, taking into account, and without duplication of, any other adjustment made pursuant to this “Consequences of Announcement Events” provision or pursuant to the provisions opposite the captions “Method of Adjustment”, “Consequences of Merger Events” or “Consequences of Tender Offers” above in respect of the transaction or intention giving rise to such Announcement Event).


 


	Announcement Event:	(i) The public announcement by (x) any entity of any transaction or event that the Calculation Agent determines is reasonably likely to be completed and that, if completed, would constitute a Merger Event or Tender Offer (it being understood that Calculation Agent may make such determination by reference to the impact of such announcement on the market for the Shares and/or Underlying Shares or options relating to the Shares and/or Underlying Shares), (y) Underlying Shares Issuer or any subsidiary thereof of any potential acquisition or disposal by the Underlying Shares Issuer and/or its subsidiaries where the aggregate consideration payable or receivable exceeds 25% of the market capitalization of the Underlying Shares Issuer as of the date of such announcement (a “Transformative Transaction”) or (z) Underlying Shares Issuer, any subsidiary of the Underlying Shares Issuer or any Valid Third Party Entity of the intention to enter into a Merger Event or Tender Offer or a Transformative Transaction (in the case of a Valid Third-Party Entity, that the Calculation Agent determines is a bona fide intention, it being understood that the Calculation Agent may make such determination by reference to the impact of such announcement on the market for the Shares and/or Underlying Shares or options relating to the Shares and/or Underlying Shares), (ii) the public announcement by the Underlying Shares 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 any entity of a change to a transaction or intention that is the subject of an announcement of the type described in clause (i) or (ii) of this sentence (including, without limitation, a new announcement, whether or not by the same party, relating to such a transaction or intention or the announcement of a withdrawal from, or the abandonment or discontinuation of, such a transaction or intention), as determined by the Calculation Agent.  For the avoidance of doubt, the occurrence of an Announcement Event with respect to any transaction or intention shall not preclude the occurrence of a later Announcement Event with respect to such transaction or intention. For purposes of this definition of “Announcement Event,” (A) “Merger Event” shall mean such term as defined under Section 12.1(b) of the Equity Definitions (but, for the avoidance of doubt, the remainder of the definition of “Merger Event” in Section 12.1(b) of the Equity Definitions following the definition of “Reverse Merger” therein shall be disregarded) and (B) “Tender Offer” shall mean such term as defined under Section 12.1(d) of the Equity Definitions; provided that Section 12.1(d) of the Equity Definitions is hereby amended by replacing “10%” with “20%” in the third line thereof.



 






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	Valid Third Party Entity:	In respect of any transaction or intention, any third party (i) whose announcement is reasonably determined by the Calculation Agent to have had a material economic effect on the Shares and/or Underlying Shares and/or options on the Shares and/or Underlying Shares and (ii) that is the entity, or an affiliate of the entity, that is, or would be, a party to the relevant transaction or event.
	 	 
	Nationalization, Insolvency or Delisting:	Cancellation and Payment (Calculation Agent Determination); provided that, in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it will also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors), such exchange or quotation system shall thereafter be deemed to be the Exchange.


 




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	 	Section 12.1 of the Equity Definitions is hereby amended by deleting subsection (v) thereof in its entirety and replacing it with “(v) in the case of an Insolvency, the date of (A) the institution of a proceeding or presentation of a petition or the passing of a resolution (or the convening of a meeting to pass a resolution or the proposing of a written resolution) (in each case the occurrence of which shall be deemed its announcement) that leads to an Insolvency within the meaning of subsection (A) of the definition thereof, (B) the first public announcement of the institution of a proceeding or presentation of a petition or passing of a resolution (or other analogous procedure in any jurisdiction) that leads to the Insolvency or (C) the occurrence of any of the events specified in Section 5(a)(vii)(1) through (9) of the ISDA Master Agreement with respect to that Issuer”.
	 	 
	 	Section 12.6(a)(ii) of the Equity Definitions is hereby amended by (1) inserting “(A)” after “means” in the first line thereof and replacing “(A)” and “(B)” in the third and fourth lines thereof with “(1)” and “(2)” respectively, (2) deleting from the fourth line thereof the word “or” after the word “official” and inserting a comma therefor, (3) inserting at the end of renumbered subsection (2) thereof the following wording, “or, under the laws of the Cayman Islands, any other jurisdiction or otherwise, any other impediment to or restriction on the transfer of any Share arises or becomes applicable including, without limitation, where (x) any transfer of a Share or alteration of the status of the members of the Issuer would be void unless a court of the Cayman Islands or any other jurisdiction orders otherwise or (y) any transfer of a Share not being a transfer with the sanction of a liquidator, and any alteration in the status of the Issuer’s members, would be void” and (4) deleting the semi-colon at the end of renumbered subsection (2) thereof and inserting the following words therefor “or (B) at Dealer’s option, the occurrence of any of the events specified in Section 5(a)(vii)(1) through (9) of the ISDA Master Agreement with respect to that Issuer.”
	 	 
	Additional Disruption Events:	 
	 	 
	Change in Law:	Applicable; provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the phrase “the interpretation” in the third line thereof with the phrase “, or public announcement of, the formal or informal interpretation”, (ii) replacing the word “Shares” where it appears in clause (X) thereof with the words “Hedge Position,” (iii) replacing the parenthetical beginning after the word “regulation” in the second line thereof with the words “(including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption, effectiveness or promulgation of new regulations authorized or mandated by existing statute)” and (iv) adding the words “provided that, in the case of clause (Y) hereof where such determination is based on Dealer’s policies and procedures, such policies and procedures have been adopted by Dealer in good faith and are generally applicable in similar situations and applied in a non-discriminatory manner;” after the semi-colon in the last line thereof.


 




    	 	12	 



     


    

 


	Failure to Deliver:	Applicable
	 	 
	Hedging Disruption:	Applicable; provided that:
	 	 
	 	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”.
	 	 
	Increased Cost of Hedging:	Not Applicable
	 	 
	Hedging Party:	For all applicable Additional Disruption Events, Dealer.
	 	 
	Determining Party:	For all applicable Extraordinary Events, Dealer; provided that when making any determination or calculation as “Determining Party,” Dealer shall make such determinations or calculations in good faith and in a commercially reasonable manner.
	 	 
	 	Following any determination or calculation by Determining Party hereunder, the Determining Party will, upon written request from Counterparty, promptly (but in any event within five Scheduled Trading Days) provide to Counterparty a report (in a commonly used file format for the storage and manipulation of financial data) displaying in reasonable detail the basis for such determination or calculation (including any assumptions used in making such determination or calculation), it being understood that in no event will the Determining Party be obligated to share with Counterparty any proprietary or confidential data or information or any proprietary or confidential models used by it in making such determination or calculation or any information that is subject to an obligation not to disclose such information.
	 	 
	Non-Reliance:	Applicable
	 	 
	Agreements and Acknowledgments	 
	Regarding Hedging Activities:	Applicable
	 	 
	Additional Acknowledgments:	Applicable


 




    	 	13	 



     


    

 


	4.	Calculation Agent.	Dealer; provided that, following the occurrence and during the continuance of an Event of Default under Section 5(a)(vii) of the Agreement with respect to which Dealer is the Defaulting Party, Counterparty shall have the right to designate a nationally recognized independent equity derivatives dealer to replace Dealer as the Calculation Agent, and the parties shall work in good faith to execute any appropriate documentation required by such replacement Calculation Agent.
	 	 	 
	 	 	Following any adjustment, determination or calculation by the Calculation Agent hereunder, the Calculation Agent will, upon written request from Counterparty, promptly (but in any event within five Scheduled Trading Days) provide to Counterparty by email a report (in a commonly used file format for the storage and manipulation of financial data) displaying in reasonable detail the basis for such adjustment, determination or calculation (including any assumptions used in making such adjustment, determination or calculation), it being understood that in no event will the Calculation Agent be obligated to share with Counterparty any proprietary or confidential data or information or any proprietary or confidential models used by it in making such adjustment, determination or calculation or any information that is subject to an obligation not to disclose such information.
	 	 	 
	 	 	All calculations and determinations by the Calculation Agent shall be made in good faith and in a commercially reasonable manner.


 


		5.	Account Details.



 


		(a)	Account for payments to Counterparty:



 


		To be provided.



 


		Account for delivery of Shares to Counterparty:



 


		To be provided.



 


		(b)	Account for payments to Dealer:



 


		To be provided.



 


		Account for delivery of Shares from Dealer:



 


		To be provided.



 


		6.	Offices.



 


		(a)	The Office of Counterparty for the Transaction is: Inapplicable,
Counterparty is not a Multibranch Party.



 


		(b)	The Office of Dealer for the Transaction is: Morgan Stanley
& Co. LLC, 1221 Avenue of the Americas , New York, NY 10020



 




    	 	14	 



     


    

 


		7.	Notices.



 


(a)          Address
for notices or communications to Counterparty:


 


NIO Inc.


Building 20, No. 56 AnTuo Road, Jiading District


Shanghai, 201804


People’s Republic of China


Attention:           Louis T. Hsieh, Chief Financial Officer


Telephone            No.:+86 (21) 6908 3306


Facsimile No.:   +86 (21) 3913 0192


 


with a copy to:


 


Nick Wang


VP of Finance


Telephone No.:   +86 (21) 6908-2002


Email: Nick.Wang@nio.com


 


with a copy to:


 


Fang Liu


General Counsel


Telephone No.:   +86 (21) 6908-2277


Email: Fang.Liu@nio.com


 


with a copy to:


 


Sabrina Shi


Senior Corporate Counsel


Telephone No.:   +86 (21) 6908-3391


Email: Danting.Shi@nio.com


 


(b)          Address
for notices or communications to Dealer:


 


Morgan Stanley & Co. LLC

1585 Broadway, 5th Floor

New York, NY 10036


 Attn:                      Global Capital Markets




Telephone:           +1 212 761-9363


Facsimile:             +1 212 404-9481

Email:                    nycd-notices@morganstanley.com


 


With a copy
to: Morgan Stanley & Co. LLC


1221
Avenue of the Americas, 34th Floor


New York,
NY 10020


Attn:                      Global
Capital Markets


Telephone:           +1
212 761-9363


Facsimile:             +1
212 404-9481


Email:                    nycd-notices@morganstanley.com


 


With a copy to:
Steven.Seltzer1@morganstanley.com; David.Oakes@morganstanley.com; and Saurabh.Dinakar@morganstanley.com


 




    	 	15	 



     


    

 


		8.	Representations and Warranties of Counterparty.



 


			Each of the representations and warranties of Counterparty set forth in Section 2 of the
                                                                            Purchase Agreement (the “Purchase Agreement”) dated as of January 30, 2019, between Counterparty and
                                                                            Credit Suisse Securities (USA) LLC, J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC, and Goldman Sachs (Asia) LLC,
                                                                            as representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and
                                                                            correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents
                                                                            and warrants to Dealer on the date hereof and on and as of the Premium Payment Date, that:



 


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



 


		(b)	Neither the execution and delivery of this Confirmation
nor the incurrence or performance of obligations nor the exercise of rights of Counterparty hereunder will conflict with or result
in a breach of the memorandum and articles of association or by-laws (or any equivalent documents) of Counterparty, or any applicable
law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement
or instrument to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries
is bound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation
of any lien under, any such agreement or instrument.



 


		(c)	No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance
by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities
Act or state securities laws.



 


		(d)	Counterparty is not and, after consummation of the transactions
contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment
Company Act of 1940, as amended.



 


		(e)	Counterparty is an “eligible contract participant”
(as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible
contract participant under Section 1a(18)(C) of the Commodity Exchange Act).



 


		(f)	Counterparty is not, on the date hereof, aware of any
material non-public information with respect to Counterparty, the Underlying Shares Issuer (if other than Counterparty), the Underlying
Shares or the Shares.



 


		(g)	To the knowledge of Counterparty, no state or local (including
any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares and/or Underlying 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 and/or
Underlying Shares (except for filings of Form 13F, Schedule 13D or Schedule 13G under the Exchange Act); 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 a financial institution
or broker-dealer.



 




    	 	16	 



     


    

 


		(h)	Counterparty (A) is capable of evaluating investment
risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities;
(B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless
it has otherwise notified the broker-dealer in writing; (C) has total assets of at least USD 50 million; and (D) is acting for
its own account, and it has made its own independent decisions to enter into the Transaction and as to whether the Transaction
is appropriate or proper for it (including as to any legal, regulatory, tax, accounting or economic consequences arising from
the Transaction) based upon its own judgment and upon advice from such advisers as it has deemed necessary (including legal, financial
and accounting advisors).



 


		(i)	Counterparty as of and immediately after the Trade Date
and the Premium Payment Date (x) is not, and shall not be after giving effect to the transactions contemplated hereby, “insolvent”
(as such term is defined in Section 101(32) of the Bankruptcy Code, (y) would be able to purchase 100,536,150 Shares and the Underlying
Shares represented by such number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation
or organization, and (z), for the purposes of Cayman Islands law, is able to pay its debts.



 


		(j)	Counterparty’s board of directors (the “Board”)
has concluded that (A) the Transaction is suitable for Counterparty, for its commercial benefit and in its best interests, in
light of its own investment objectives, financial condition and expertise and (B) the Transaction has been duly approved and authorized
by the Board after due consideration by the Board of the foregoing matters and those referred to in sub-paragraph (h)(D) above.



 


		9.	Other Provisions.



 


		(a)	Deliverables. Counterparty shall deliver
to Dealer (A) an opinion of U.S. counsel and (B) an opinion of Cayman counsel, each dated as of the Premium Payment Date, with
respect to, among other things, the matters set forth in Sections 8(a) through (c) of this Confirmation, it being understood that
such opinions of counsel shall be limited to the federal laws of the United States and the laws of the State of New York (in the
case of clause (A) above) and the laws Cayman Islands (in the case of clause (B) above) and may contain customary limitations,
exceptions and qualifications for transactions of the same type as the Transaction. Delivery of such opinions to Dealer shall
be a condition precedent for the purpose of Section 2(a)(iii) of the Agreement with respect to each obligation of Dealer under
Section 2(a)(i) of the Agreement; (C) a resolution of the Board authorizing the Transaction; and (D) on or before the Premium
Payment Date, a solvency certificate with respect to Counterparty signed by a member of the Board, the chief executive officer
or the chief financial officer of the Counterparty certifying the solvency of Counterparty as of and immediately after the Premium
Payment Date (after giving effect to Counterparty’s payment of amounts required to be paid by Counterparty on such date
under the Transaction and the other transactions described under “Use of Proceeds” in the Offering Memorandum related
to the offering of the Convertible Notes), which solvency certificate is reasonably satisfactory to Dealer.



 




    	 	17	 



     


    

 


		(b)	Repurchase Notices. Counterparty shall,
on or prior to the date that is one Scheduled Trading Day following any date on which Counterparty effects any repurchase of Shares
and/or Underlying Shares, promptly give Dealer a written notice of such repurchase (a “Repurchase Notice”)
on such day if following such repurchase, the number of outstanding Underlying Shares as determined on such day is (i) less than
727.2 million (in the case of the first such notice) or (ii) thereafter more than 37.8 million less than the number of Underlying
Shares included in the immediately preceding Repurchase Notice; provided that Counterparty may provide Dealer advance notice
on or prior to any such day including the maximum number of Shares and/or Underlying Shares that may be repurchased under a repurchase
program entered into in reliance on Rule 10b5-1(c) and the approximate periods during which such repurchases may occur, to the
extent it expects that 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 of repurchases set forth in such advance
notice as if Counterparty had executed such repurchases). Counterparty agrees that, if Counterparty ceases to qualify as a “foreign
private issuer” as defined in Rule 3b-4 under the Exchange Act or the Shares or Underlying Shares, as applicable, otherwise
become subject to the requirements of Section 16 of the Exchange Act, Counterparty will indemnify and hold harmless Dealer and
its affiliates and their respective officers, directors, employees, affiliates, advisors, agents and controlling persons (each,
an “Indemnified Person”) from and against any and all losses (including losses relating to Dealer’s hedging
activities as a consequence of becoming, or of the risk of becoming, a Section 16 “insider”, including without limitation,
any forbearance from hedging activities or cessation of hedging activities and any losses in connection therewith with respect
to the Transaction), claims, damages, judgments, liabilities and reasonable and documented out-of-pocket expenses (including reasonable
attorney’s fees of one outside counsel in each relevant jurisdiction), joint or several, which an Indemnified Person may
become subject to, in each case, as a result of Counterparty’s failure to provide Dealer with a Repurchase Notice on the
day and in the manner specified in this paragraph, and to reimburse, within 30 days, upon written request, each of such Indemnified
Persons for any reasonable legal or other out-of-pocket expenses (to the extent supported by invoices or other documentation setting
forth in reasonable detail such expenses) incurred in connection with investigating, preparing for, providing testimony or other
evidence in connection with or defending any of the foregoing. If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against the Indemnified Person as a result of Counterparty’s
failure to provide Dealer with a Repurchase Notice in accordance with this paragraph, such Indemnified Person shall promptly notify
Counterparty in writing, and Counterparty, upon request of the Indemnified Person, shall retain counsel reasonably satisfactory
to the Indemnified Person to represent the Indemnified Person and any others Counterparty may designate in such proceeding and
shall pay the reasonable fees and expenses of such counsel related to such proceeding. Counterparty shall not be liable to the
extent that the Indemnified Person fails to notify Counterparty within a commercially reasonable period of time after any action
is commenced against it in respect of which indemnity may be sought hereunder. In addition, Counterparty shall not have liability
for any settlement of any such proceeding contemplated by this paragraph that is effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, Counterparty agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement or judgment. Counterparty shall not, without the prior
written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding contemplated by this
paragraph in respect of which any Indemnified Person is or could have been a party and indemnity could have been sought hereunder
by such Indemnified Person, unless such settlement includes an unconditional release of such Indemnified Person from all liability
on claims that are the subject matter of such proceeding on terms reasonably satisfactory to such Indemnified Person. If the indemnification
provided for in this paragraph is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages
or liabilities referred to therein, then Counterparty hereunder, in lieu of indemnifying such Indemnified Person thereunder, shall
contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities.
The remedies provided for in this paragraph (b) are not exclusive and shall not limit any rights or remedies which may otherwise
be available to any Indemnified Person at law or in equity. The indemnity and contribution agreements contained in this paragraph
shall remain operative and in full force and effect regardless of the termination of the Transaction.



 


		(c)	Regulation M. Counterparty is not on the
Trade Date engaged in a distribution, as such term is used in Regulation M under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), of any securities of Counterparty, other than a distribution meeting the requirements
of the exception set forth in Rules 101(b)(10) and 102(b)(7) of Regulation M. Counterparty shall not, until the second Scheduled
Trading Day immediately following the Effective Date, engage in any such distribution.



 




    	 	18	 



     


    

 


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



 


		(e)	Transfer or Assignment.



 


		(i)	Counterparty shall have the right to transfer or assign
all or any of its rights and obligations hereunder with respect to all, or any, of the Options hereunder (such Options, the “Transfer
Options”) with the prior written consent of Dealer, such consent not to be unreasonably withheld; provided that
withholding of such consent by Dealer shall not be considered unreasonable if such transfer or assignment does not meet any of
the following conditions:



 


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



 


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



 


		(C)	Under
the applicable law effective on the date of such transfer or assignment, (1) Dealer will not, as a result of such transfer or
assignment, be required to pay the transferee or assignee on any payment date or delivery date an amount or a number of
Shares, as applicable, under Section 2(d)(i)(4) of the Agreement greater
than the amount or the number of Shares, as applicable, that Dealer
would have been required to pay to Counterparty in the absence of such transfer or assignment and (2) Dealer will not, as a result
of such transfer or assignment, receive from the transferee or assignee on any payment date an amount under Section 2(d)(i)(4)
of the Agreement that is less than the amount that Dealer would have received from Counterparty in the absence of such transfer
or assignment;



 


		(D)	No Event of Default, Potential Event of Default or Termination
Event will occur as a result of such transfer and assignment;



 


		(E)	Counterparty shall cause the transferee to make such
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 (C) and (D) will not occur upon or after such transfer and assignment, including but not limited
to providing tax documentation specified in Section 9(bb) of this Confirmation and making the tax representations specified in
Section 9(aa) of this Confirmation on or prior to such transfer and at the other times specified in such Sections; and



 




    	 	19	 



     


    

 


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



 


		(ii)	Dealer may, without Counterparty’s consent, transfer
or assign all or any part of its rights or obligations under the Transaction to any affiliate of Dealer (1) that has a long-term
issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2)
whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally
for similar transactions, by Dealer or Morgan Stanley; provided that, in the case of any such transfer or assignment, under
the applicable law effective on the date of such transfer or assignment, (I) Counterparty will not, as a result of such transfer
or assignment, be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement
greater than the amount that Counterparty would have been required to pay to Dealer in the absence of such transfer or assignment;
(II) Counterparty will not, as a result of such transfer or assignment, receive from the transferee or assignee on any payment
or delivery date an amount or a number of Shares, as applicable, under Section 2(d)(i)(4) of the Agreement that is less than the
amount or the number of Shares that Counterparty would have received from Dealer in the absence of such transfer or assignment;
(III) Dealer shall cause the transferee or assignee to make such tax representations and to provide such tax documentation as
may be reasonably requested by Counterparty to permit Counterparty to determine that events described in clauses (I) and (II)
of this proviso will not occur upon or after such transfer or assignment; and (IV) no Event of Default, Potential Event of Default
or Termination Event will occur as a result of such transfer and assignment. If at any time at which (A) the Section 13 Percentage
exceeds 8.5%, (B) the Option Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any
applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer
is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party on pricing
terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position
exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction
(the “Terminated Portion”), to the extent necessary so that following such partial termination no Excess Ownership
Position exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction,
a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect
of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Options underlying the
Terminated Portion, (2) Counterparty were the sole Affected Party with respect to such partial termination and (3) the Terminated
Portion were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 9(m) shall apply to any
amount that is payable by Dealer to Counterparty pursuant to this sentence as if Counterparty was not the Affected Party). The
“Section 13 Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which
is the number of Underlying Shares that Dealer and any of its affiliates or any other person subject to aggregation with Dealer
for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act, or any “group” (within
the meaning of Section 13 of the Exchange Act) of which Dealer is or may be deemed to be a part beneficially owns (within the
meaning of Section 13 of the Exchange Act), without duplication, on such day (or, to the extent that for any reason the equivalent
calculation under Section 16 of the Exchange Act applies with respect to the Shares or Underlying Shares, as applicable, and the
rules and regulations thereunder results in a higher number, such higher number) and (B) the denominator of which is the number
of Underlying Shares outstanding on such day. The “Option Equity Percentage” as of any day is the fraction,
expressed as a percentage, (A) the numerator of which is the sum of (1) the product of (x) the Number of Options (y) the Option
Entitlement and (z) the number of Underlying Shares represented by one Share and (2) the aggregate number of Underlying Shares
underlying any other call option transaction sold by Dealer to Counterparty, and (B) the denominator of which is the number of
Underlying Shares outstanding. The “Share Amount” as of any day is the number of Underlying Shares that Dealer
and any person whose ownership position would be aggregated with that of Dealer (Dealer or any such person, a “Dealer
Person”) under any law, rule, regulation, regulatory order or organizational documents or contracts of Counterparty
that are, in each case, applicable to ownership of Underlying Shares (“Applicable Restrictions”), owns, beneficially
owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership under any Applicable
Restriction, as determined by Dealer in its reasonable discretion. The “Applicable Share Limit” means a number
of Underlying Shares equal to (A) the minimum number of Underlying Shares that could give rise to reporting or registration obligations
(except for any filing requirements on Form 13F, Schedule 13D or Schedule 13G under the Exchange Act, in each case, as in effect
on the Trade Date) or other requirements (including obtaining prior approval from any person or entity) of a Dealer Person, or
could result in an adverse effect on a Dealer Person, under any Applicable Restriction, as determined by Dealer in good faith
and in its commercially reasonable discretion, minus (B) 1% of the number of Underlying Shares outstanding.



 




    	 	20	 



     


    

 


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



 


		(f)	Staggered Settlement. If upon advice of
counsel with respect to applicable legal and regulatory requirements, including any requirements relating to Dealer’s 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;



 


		(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 set forth above were
to apply on the Nominal Settlement Date, then the Net Share Settlement terms 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.



 


		(g)	Reserved.



 




    	 	21	 



     


    

 


		(h)	QFC Stay Provisions. The parties agree
that (i) to the extent that prior to the date hereof both parties have adhered to the 2018 ISDA U.S. Resolution Stay Protocol
(the “Protocol”), the terms of the Protocol are incorporated into and form a part of this Confirmation, and
for such purposes this Confirmation shall be deemed a Protocol Covered Agreement and each party shall be deemed to have the same
status as Regulated Entity and/or Adhering Party as applicable to it under the Protocol; (ii) to the extent that prior to the
date hereof the parties have executed a separate agreement the effect of which is to amend the qualified financial contracts between
them to conform with the requirements of the QFC Stay Rules (the “Bilateral Agreement”), the terms of the Bilateral
Agreement are incorporated into and form a part of this Confirmation and each party shall be deemed to have the status of “Covered
Entity” or “Counterparty Entity” (or other similar term) as applicable to it under the Bilateral Agreement;
or (iii) if clause (i) and clause (ii) do not apply, the terms of Section 1 and Section 2 and the related defined terms (together,
the “Bilateral Terms”) of the form of bilateral template entitled “Full-Length Omnibus (for use between
U.S. G-SIBs and Corporate Groups)” published by ISDA on November 2, 2018 (currently available on the 2018 ISDA U.S. Resolution
Stay Protocol page at www.isda.org and, a copy of which is available upon request), the effect of which is to amend the qualified
financial contracts between the parties thereto to conform with the requirements of the QFC Stay Rules, are hereby incorporated
into and form a part of this Confirmation, and for such purposes this Confirmation shall be deemed a “Covered Agreement,”
Dealer shall be deemed a “Covered Entity” and Counterparty shall be deemed a “Counterparty Entity.” In
the event that, after the date of this Confirmation, both parties hereto become adhering parties to the Protocol, the terms of
the Protocol will replace the terms of this section. In the event of any inconsistencies between this Confirmation and the terms
of the Protocol, the Bilateral Agreement or the Bilateral Terms (each, the “QFC Stay Terms”), as applicable,
the QFC Stay Terms will govern. Terms used in this paragraph without definition shall have the meanings assigned to them under
the QFC Stay Rules. For purposes of this paragraph, references to “this Confirmation” include any related credit enhancements
entered into between the parties or provided by one to the other. In addition, the parties agree that the terms of this paragraph
shall be incorporated into any related covered affiliate credit enhancements, with all references to Dealer replaced by references
to the covered affiliate support provider.



 


			“QFC Stay Rules” means the regulations codified at 12 C.F.R. 252.2,
                                                                                252.81–8, 12 C.F.R. 382.1-7 and 12 C.F.R. 47.1-8, which, subject to limited exceptions, require an express recognition
                                                                                of the stay-and-transfer powers of the FDIC under the Federal Deposit Insurance Act and the Orderly Liquidation
                                                                                Authority under Title II of the Dodd Frank Wall Street Reform and Consumer Protection Act and the override of default rights
                                                                                related directly or indirectly to the entry of an affiliate into certain insolvency proceedings and any restrictions on the
                                                                                transfer of any covered affiliate credit enhancements.



 


		(i)	Additional Termination Events.



 


		(i)	Notwithstanding anything to the contrary in this Confirmation,
upon any conversion of a Convertible Note occurring prior to the 45th Scheduled Valid Day immediately prior to the Expiration
Date (any such conversion, an “Early Conversion”) in respect of which a Conversion Notice that is effective
as to Counterparty has been delivered by the relevant converting Holder:



 


		(A)	Counterparty
may, within two Scheduled Trading Days of the date on which the Holder (as such term is defined in the Indenture) of such
Convertible Note satisfies all of the requirements for conversion thereof as set forth in Section 14.02 of the Indenture (the
“Conversion Date”) for such Early Conversion, provide written notice (an “Early Conversion Notice”)
to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes,
the “Affected Convertible Notes”), and the giving of such Early Conversion
Notice shall constitute an Additional Termination Event as provided in this clause (i) (provided that 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 Early Conversion Notice);



 




    	 	22	 



     


    

 


		(B)	upon receipt of any such Early Conversion Notice, Dealer
shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than one
Scheduled Trading Day following the Conversion Date for such Early Conversion) with respect to the portion of the Transaction
corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number
of Affected Convertible Notes minus the “Affected Number of Options” (as defined in the Base Call Option Transaction
Confirmation letter agreement dated January 30, 2019 between Dealer and Counterparty (the “Base Call Option Confirmation”)),
if any, that relate to such Affected Convertible Notes minus the “Affected Number of Options” (as defined in
the Additional Call Option Transaction Confirmation dated February 13, 2019 between Dealer and Counterparty (the “First
Additional Call Option Confirmation”)), if any, that relate to such Affected Convertible Notes and (y) the Number of
Options as of the Conversion Date for such Early Conversion;



 


		(C)	any payment hereunder with respect to such termination
shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect
of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y)
Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of
the Transaction were the sole Affected Transaction;



 


		(D)	for the avoidance of
doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation
Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or
acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have
occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and



 


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



 


		(ii)	Notwithstanding anything to the contrary in this Confirmation
if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01
of the Indenture and such event of default results in the Convertible Notes being accelerated and declared due and payable, then
such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such
Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the
sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section
6(b) of the Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes
aware of the occurrence of such acceleration).



 




    	 	23	 



     


    

 


		(iii)	Notwithstanding anything to the contrary in this Confirmation,
the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with
respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction
shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant
to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements,
waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon,
maturity, repurchase obligation of Counterparty, tax redemption right of Counterparty, any term relating to conversion of the
Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates
or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount
of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(i) of the
Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the
Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer.



 


		(iv)	Promptly (but in any event within five Scheduled Trading
Days) following any Repurchase Event (as defined below), Counterparty shall notify Dealer of such Repurchase Event and the aggregate
principal amount of Convertible Notes subject to such Repurchase Event (any such notice, a “Convertible Notes Repurchase
Notice”); provided that any such Convertible Notes Repurchase Notice shall contain a repetition by Counterparty
of the representation set forth in Section 8(f) as of the date of such Convertible Notes Repurchase Notice and an acknowledgment
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 such Repurchase Event and the delivery of such Convertible
Notes Repurchase Notice. Any Convertible Notes Repurchase Notice delivered to Dealer pursuant to the Base Call Option Confirmation
shall be deemed to be a Convertible Notes Repurchase Notice pursuant to this Confirmation and the terms of such Convertible Notes
Repurchase Notice shall apply, mutatis mutandis, to this Confirmation. The receipt by Dealer from Counterparty of any Convertible
Notes Repurchase Notice shall constitute an Additional Termination Event as provided in this Section 9(i)(iv). Upon receipt of
any such Convertible Notes Repurchase Notice, Dealer shall designate an Exchange Business Day following receipt of such Convertible
Notes Repurchase Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable following the settlement
date for such Repurchase Event) as an Early Termination Date with respect to the portion of the Transaction corresponding to a
number of Options (the “Repurchase Options”) equal to the lesser of (A) (x) the aggregate principal amount
of such Convertible Notes specified in such Convertible Notes Repurchase Notice, divided by USD 1,000 minus (y)
the “Repurchase Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Convertible
Notes minus (z) the “Repurchase Options” (as defined in the First Additional Call Option Confirmation), if
any, that relate to such Convertible Notes 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 (the “Repurchase Unwind Payment”) shall be calculated pursuant to Section 6 of
the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the
Transaction and a Number of Options equal to the number of 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
(and, for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section
6 of the Agreement, Dealer shall assume that (x) the relevant Repurchase Event and any conversions, adjustments, agreements, payments,
deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion
Rate have occurred pursuant to any Excluded Provisions and (z) the corresponding Convertible Notes remain outstanding). “Repurchase
Event” means that (i) any Convertible Notes are repurchased or redeemed (whether pursuant to Section 15.01 of the Indenture,
Section 15.02 of the Indenture, Section 16.01 of the Indenture or otherwise) by Counterparty or any of its subsidiaries, (ii)
any Convertible Notes are delivered to Counterparty in exchange for delivery of any property or assets of Counterparty or any
of its subsidiaries (howsoever described), including for the avoidance of doubt shares or American depositary shares of Issuer
and/or cash, (iii) any principal of any of the Convertible Notes is repaid prior to the final maturity date of the Convertible
Notes (other than upon acceleration of the Convertible Notes described in Section 9(i)(ii)), or (iv) any Convertible Notes are
exchanged by or for the benefit of the holders thereof for any other securities of Counterparty or any of its affiliates (or any
other property, or any combination thereof) pursuant to any exchange offer or similar transaction; provided that any conversion
of Convertible Notes pursuant to the terms of the Indenture shall not constitute a Repurchase Event. Counterparty acknowledges
and agrees that if an Additional Termination Event has occurred under this Section 9(i)(iv) that any related Convertible Notes
subject to a Repurchase Event will be promptly cancelled under the applicable provisions of the Indenture and, in any event, will
be deemed to be cancelled and disregarded and no longer outstanding for all purposes hereunder.



 




    	 	24	 



     


    

 


		(j)	Amendments to Equity Definitions.



 


		(i)	Solely in respect of adjustments to the Cap Price pursuant
to Section 9(y), 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 Underlying Shares Issuer or its securities that has a material
economic effect on the Shares and/or the Underlying Shares or options on the Shares and/or the Underlying Shares; provided
that such event is not based on (a) an observable market, other than the market for the Underlying Shares Issuer’s
own stock or (b) an observable index, other than an index calculated and measured solely by reference to the Underlying Shares
Issuer’s own operations.”



 


		(ii)	Section 12.6(a)(ii) of the Equity Definitions is hereby
amended by (1) inserting “(1)” immediately following the word “means” in the first line thereof and (2)
inserting immediately prior to the semi-colon at the end of subsection (B) thereof the following words: “or (2) the occurrence
of any of the events specified in Section 5(a)(vii)(1) through (9) of the ISDA Master Agreement with respect to that Issuer”
provided that the period for dismissal, discharge, stay or restraint therein shall be increased from “within 15 days”
to “within 30 days.”



 


		(iii)	Section 12.9(b)(i) of the Equity Definitions is hereby
amended by (1) replacing “either party may elect” with “Dealer may elect” and (2) replacing “notice
to the other party” with “notice to Counterparty” in the first sentence of such section.



 


		(k)	Setoff. Neither party shall have the right
to set off any obligation that it may have to the other party under the Transaction against any obligation such other party may
have to it, whether arising under the Agreement, this Confirmation or any other agreement between the parties hereto, by operation
of law or otherwise and each party hereby waives any such right to setoff.



 


		(l)	Adjustments. For the avoidance of doubt,
whenever the Calculation Agent is called upon to make an adjustment pursuant to the terms of this Confirmation or the Equity Definitions
to take into account the effect of an event (other than on adjustments made by reference to the Indenture), the Calculation Agent
shall make such adjustment in a commercially reasonable manner by reference to the effect of such event on Dealer, assuming that
Dealer maintains a commercially reasonable hedge position



 




    	 	25	 



     


    

 


		(m)	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, and if Dealer would owe any amount to Counterparty pursuant to Section 6(d)(ii) of the
Agreement or any Cancellation Amount pursuant to Article 12 of the Equity Definitions (any such amount, a “Payment Obligation”),
Counterparty may request Dealer to satisfy the Payment Obligation by the Share Termination Alternative (as defined below) (except
as a result of (i) a Nationalization, Insolvency or Merger Event in which the consideration to be paid to holders of Shares and/or
Underlying Shares, as applicable, consists solely of cash, (ii) an Announcement Event, Merger Event or Tender Offer that is within
Counterparty’s control, or (iii) an Event of Default in which Counterparty is the Defaulting Party or a Termination Event
in which Counterparty is the 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), as long as Counterparty remakes the representation set
forth in Section 8(f) as of the date of such election, and Counterparty shall give irrevocable telephonic notice to Dealer, confirmed
in writing within one Scheduled Trading Day, no later than 12:00 p.m. (New York City time) on the date of the Announcement Event,
Merger Date, Tender Offer Date, Announcement Date (in the case of a Nationalization, Insolvency or Delisting), Early Termination
Date or date of cancellation, as applicable; provided that if Counterparty does not validly request Dealer to satisfy the
Payment Obligation by the Share Termination Alternative, Dealer shall have the right, in its sole discretion, to satisfy its Payment
Obligation by the Share Termination Alternative, notwithstanding Counterparty’s failure to elect or election to the contrary.
If such election is not made, then the provisions of Section 12.7 or Section 12.9 of the Equity Definitions, or the provisions
of Section 6(d)(ii) and Section 6(e) of the Agreement, as the case may be, shall apply.



 


	 	Share Termination Alternative:	If applicable, Dealer shall deliver to Counterparty the Share Termination Delivery Property on, or as promptly as commercially reasonably practicable thereafter, the date when the relevant Payment Obligation would otherwise be due pursuant to Section 12.7 or 12.9 of the Equity Definitions or Section 6(d)(ii) and 6(e) of the Agreement, as applicable, in satisfaction of such Payment Obligation in the manner reasonably requested by Counterparty free of payment.
	 	 	 
	 	Share Termination Delivery Property:	
        A number of Share Termination
        Delivery Units, as calculated by the Calculation Agent, equal to the Payment Obligation divided by the Share Termination Unit Price.
        The Calculation Agent shall adjust the Share Termination Delivery Property by replacing any fractional portion of a security therein
        with an amount of cash equal to the value of such fractional security based on the values used to calculate the Share Termination
        Unit Price.

         

	 	Share Termination Unit Price:	The value of property contained in one Share Termination Delivery Unit, as determined by the Calculation Agent in its discretion by commercially reasonable means and notified by the Calculation Agent to Dealer at the time of notification of the Payment Obligation.


 




    	 	26	 



     


    

 


	 	Share Termination Delivery Unit:	One Share or, if the Shares or Underlying Shares, as applicable, have changed into cash or any other property or the right to receive cash or any other property as the result of a Nationalization, Insolvency or Merger Event (any such cash or other property, the “Exchange Property”), a unit consisting of the type and amount of such Exchange Property received by a holder of one Share or Underlying Share, as applicable (without consideration of any requirement to pay cash or other consideration in lieu of fractional amounts of any securities) in such Nationalization, Insolvency or Merger Event, as determined by the Calculation Agent. If such Naturalization, Insolvency, or Merger Event involves a choice of Exchange Property to be received by holders, such holders 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 (as modified above) of the Equity Definitions and the provisions set forth opposite the caption “Representation and Agreement” in Section 2 will be applicable, except that all references in such provisions to “Physically-settled” shall be read as references to “Share Termination Settled” and all references to “Shares” shall be read as references to “Share Termination Delivery Units”.  “Share Termination Settled” in relation to the Transaction means that Share Termination Alternative is applicable to the Transaction.


 


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



 


		(o)	Registration. Counterparty hereby agrees
that if, in the good faith reasonable judgment of Dealer, based on the advice of counsel, the Shares and/or Underlying Shares
(“Hedge Shares”) acquired by Dealer for the purpose of commercially reasonably hedging its obligations pursuant
to the Transaction cannot be sold in the public market by Dealer without registration under the Securities Act, Counterparty shall,
at its election, either (i) in order to allow Dealer to sell the Hedge Shares in a registered offering, make available to Dealer
an effective registration statement under the Securities Act and enter into an agreement, in form and substance reasonably satisfactory
to Dealer, substantially in the form of an underwriting agreement customary for a registered secondary offering of a similar size
in respect of a similar issuer; provided, however, that if Dealer, in its sole reasonable discretion, is not satisfied
with access to due diligence materials, the results of its due diligence investigation, or the procedures and documentation for
the registered offering referred to above, then clause (ii) or clause (iii) of this paragraph shall apply at the election of Counterparty,
(ii) in order to allow Dealer to sell the Hedge Shares in a private placement, use commercially reasonable efforts to enter into
a private placement agreement substantially similar to private placement purchase agreements customary for private placements
of equity securities of a similar size in respect of a similar issuer, in form and substance satisfactory to Dealer (in which
case, the Calculation Agent shall make any adjustments to the terms of the Transaction that are necessary, in its commercially
reasonable judgment, to compensate Dealer for any commercially reasonable discount from the public market price of the Shares
and/or Underlying 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), reasonably requested
by Dealer.



 




    	 	27	 



     


    

 


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



 


		(q)	Right to Extend. Dealer may postpone or
add, in whole or in part, any Valid Day or Valid Days during the Settlement Averaging Period or any other date of valuation, payment
or delivery by Dealer, with respect to some or all of the Options hereunder, if Dealer reasonably determines, in the case of clause
(i) below, in its commercially reasonable judgment or, in the case of clause (ii) below, based on advice of counsel, that such
action is reasonably necessary or appropriate (i) to preserve Dealer’s commercially reasonable hedging or hedge unwind
activity hereunder in light of existing liquidity conditions in the relevant market or (ii) to enable Dealer to effect transactions
with respect to Shares and/or Underlying Shares in connection with its commercially reasonable hedging, hedge unwind or settlement
activity hereunder in a manner that would, if Dealer were Counterparty or an affiliated purchaser of Counterparty, be in compliance
with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures adopted by Dealer in
good faith so long as such policies and procedures are generally applicable in similar situations and applied in a non-discriminatory
manner); provided that no such Valid Day or other date of valuation, payment or delivery may be postponed or added more
than 40 Valid Days after the original Valid Day or other date of valuation, payment or delivery, as the case may be.



 


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



 


		(s)	Securities Contract; Swap Agreement. The
parties hereto intend for (i) the Transaction to be a “securities contract” and a “swap agreement” as
defined in the Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”), and the parties
hereto to be entitled to the protections afforded by, among other Sections, Sections 362(b)(6), 362(b)(17), 546(e), 546(g), 555
and 560 of the Bankruptcy Code, (ii) a party’s right to liquidate the Transaction and to exercise any other remedies upon
the occurrence of any Event of Default under the Agreement with respect to the other party to constitute a “contractual
right” as described in the Bankruptcy Code, and (iii) each payment and delivery of cash, securities or other property hereunder
to constitute a “margin payment” or “settlement payment” and a “transfer” as defined in the
Bankruptcy Code.



 




    	 	28	 



     


    

 


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



 


		(i)	promptly following the public announcement of the results
of any election by the holders of Shares and/or Underlying Shares, as applicable, with respect to the consideration due upon consummation
of any Merger Event, Counterparty shall give Dealer written notice of (x) the weighted average of the types and amounts of consideration
that holders of Shares and/or Underlying Shares, as applicable, have elected to receive upon consummation of such Merger Event
or (y) if no holders of Shares and/or Underlying Shares, as applicable, affirmatively make such election, the types and amounts
of consideration actually received by holders of Shares and/or Underlying Shares, as applicable, (the date of such notification,
the “Consideration Notification Date”); provided that in no event shall the Consideration Notification
Date be later than the date on which such Merger Event is consummated;



 


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



 


		(iii)	Counterparty will provide a written notice to Dealer
immediately upon becoming aware that Counterparty is not or will no longer be a “foreign private issuer,” as such
term is defined in Rule 3b-4 under the Exchange Act.



 


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



 


		(v)	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, Underlying 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 and/or Underlying 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 and/or Underlying Shares Issuer shall be conducted and shall do so in a manner that it deems appropriate
to hedge its price and market risk with respect to the Relevant Prices; and (D) any market activities of Dealer and its affiliates
with respect to Shares and/or Underlying Shares may affect the market price and volatility of Shares and/or Underlying Shares,
as well as the Relevant Prices, each in a manner that may be adverse to Counterparty.



 


		(w)	Early Unwind. In the event the sale of
the “Option Securities” (as defined in the Purchase Agreement) is not consummated with the Initial Purchasers for
any reason, or Counterparty fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), in each case
by 5:00 p.m. (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment
Date or such later date the “Early Unwind Date”), the Transaction shall automatically terminate (the “Early
Unwind”), on the Early Unwind Date and (i) the Transaction and all of the respective rights and obligations of Dealer
and Counterparty under the Transaction shall be cancelled and terminated and (ii) each party shall be released and discharged
by the other party from and agrees not to make any claim against the other party with respect to any obligations or liabilities
of the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind
Date. Each of Dealer and Counterparty represents and acknowledges to the other that, upon an Early Unwind, all obligations with
respect to the Transaction shall be deemed fully and finally discharged.



 




    	 	29	 



     


    

 


		(x)	Payment by Counterparty. In the event that,
following payment of the Premium, (i) an Early Termination Date occurs or is designated with respect to the Transaction as a result
of a Termination Event or an Event of Default (other than an Event of Default arising under Section 5(a)(ii) or 5(a)(iv) of the
Agreement) and, as a result, Counterparty owes to Dealer an amount calculated under Section 6(e) of the Agreement, or (ii) Counterparty
owes to Dealer, pursuant to Section 12.7 or Section 12.9 of the Equity Definitions, an amount calculated under Section 12.8 of
the Equity Definitions, such amount shall be deemed to be zero.



 


		(y)	Other Adjustments Pursuant to the Equity Definitions.
Notwithstanding anything to the contrary in this Confirmation, solely for the purpose of adjusting the Cap Price, the terms “Potential
Adjustment Event,” “Merger Event,” and “Tender Offer” shall each have the meanings assigned to such
term in the Equity Definitions (as amended by Section 9(j)(i) or, if applicable, by the definition of “Announcement Event”),
and upon the occurrence of a Merger Date, the occurrence of a Tender Offer Date, or declaration by Counterparty of the terms of
any Potential Adjustment Event, respectively, as such terms are defined in the Equity Definitions, the Calculation Agent may,
in its sole discretion, adjust the Cap Price to preserve the fair value of the Options; 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 9(y) shall be made without duplication of any other adjustment hereunder (including, for the avoidance of doubt,
adjustment made pursuant to the provisions opposite the captions “Method of Adjustment,” “Consequences of Merger
Events/Tender Offers” and “Consequence of Announcement Events” in Section 3 above). For the avoidance of
doubt, for purposes of this Section 9(y), Section 12.1(d) of the Equity Definitions is hereby amended by replacing “10%”
with “20%” in the third line thereof.



 


		(z)	Service of Process. Counterparty irrevocably
appoints Law Debenture Corporate Services Inc. as its authorized agent upon which process may be served in any suit, action or
proceeding relating to the Transaction, and agrees that service of process in any manner permitted by applicable law upon such
agent shall be deemed in every respect effective service of process in any manner permitted by applicable law upon Counterparty
in any such suit, action or proceeding. Counterparty further agrees to take any and all action as may be necessary to maintain
such designation and appointment of such agent in full force and effect for a period of five and a half years from the date of
this Confirmation. If for any reason such agent shall cease to be such agent for service of process, Counterparty shall forthwith
appoint a new agent of recognized standing for service of process in the State of New York and deliver to Dealer a copy of the
new agent’s acceptance of that appointment within 10 days. Nothing herein shall affect the right of Dealer to serve process
in any other manner permitted by law or to commence legal proceedings or otherwise proceed against Counterparty in any other court
of competent jurisdiction.



 


		(aa)	Taxes, Foreign Account Tax Compliance Act and HIRE
Act.  Counterparty is classified as a corporation for the U.S. federal income tax purposes. No income received or
to be received under the Agreement will be effectively connected with the conduct of a trade or business by Counterparty in the
United States. Counterparty is a “non-U.S. branch of a foreign person” as that term is used in Section 1.1441-4(a)(3)(ii)
of the United States Treasury Regulations (the “Regulations”), and it is a “foreign person” as
that term is used in Section 1.6041-4(a)(4) of the Regulations. The term “Indemnifiable Tax” as defined in Section
14 of the Agreement shall not include any U.S. federal withholding tax imposed or collected pursuant to Sections 1471 through
1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), any current or future regulations
or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory
legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation
of such Sections of the Code (a “FATCA Withholding Tax”). For the avoidance of doubt, a FATCA Withholding Tax
is a Tax the deduction or withholding of which is required by applicable law for the purposes of Section 2(d) of the Agreement.
The parties agree that the definitions and provisions contained in the ISDA 2015 Section 871(m) Protocol, as published by the
International Swaps and Derivatives Association, Inc. and as may be amended, supplemented, replaced or superseded from time to
time (the “871(m) Protocol”) shall apply to the Agreement as if the parties had adhered to the 871(m) Protocol
as of the Effective Date. If there is any inconsistency between this provision and a provision in any other agreement executed
between the parties, this provision shall prevail unless such other agreement expressly overrides the provisions of the 871(m)
Protocol. Each of Dealer and Counterparty shall provide to the other party tax forms and documents required to be delivered pursuant
to Sections 1471(b) or Section 1472(b)(1) of the Code promptly upon request by the other party and any other tax forms and documents
they are legally able to provide that are reasonably requested by the other party.



 




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		(bb)	U.S. Tax Forms.  Without limiting
the generality of the foregoing, Counterparty will provide a US Tax Form W-8BEN-E upon the execution of this Confirmation, promptly
upon learning that any such tax form previously provided by it has become obsolete or incorrect and promptly upon reasonable demand
by Dealer.



 


		(cc)	Additional Definitions and Amendments to Equity
Definitions.



 


(i) For the purposes
of this Confirmation the following definitions will apply:


 


“Depositary”
means, in relation to the Shares, Deutsche Bank Trust Company Americas, or any successor thereto from time to time.


 


“Deposit
Agreement” means, (i) that certain Deposit Agreement, dated as of September 11, 2018, by and among Underlying Shares
Issuer, Depositary and the holders and beneficial owners of the Shares and (ii) the other agreements or other instruments constituting
the Shares, as from time to time amended or supplemented in accordance with their terms.


 


“DS
Amendment” means, where specified as applicable to a definition or provision, that the following changes shall be made
to such definition or provision: (a) all references to “Shares” shall be deleted and replaced with the words “Shares
and/or the Underlying Shares, as appropriate”; and (b) all references to “Issuer” shall be deleted and replaced
with the words “Issuer or Underlying Shares Issuer, as appropriate”.


 


“Replacement
DSs” means depositary shares or receipts, other than the Shares, over the same Underlying Shares.


 


(ii) The following amendments shall be made
to the Equity Definitions:


 


		(A)	The definition of Potential Adjustment Event in Section
11.2(e) of the Equity Definitions shall be amended as follows:



 


		(i)	the DS Amendment shall be applicable, provided that an
event under Section 11.2(e)(i) to (vii) of the Equity Definitions in respect of the Underlying Shares shall not constitute a Potential
Adjustment Event unless, in the commercially reasonable opinion of the Calculation Agent, such event has a material effect on
the theoretical value of the Shares; and



 


		(ii)	(A)	 ‘or’ shall be deleted where it appears
at the end of subsection (vi);



 


		(B)	‘.’ shall be deleted where it appears at
the end of subsection (vii) and replaced with ‘;’;



 




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		(C)	the following shall be inserted as subsection (viii):
“(viii) the making of any amendment or supplement to the terms of the Deposit Agreement and/or the Shares; or”; and



 


		(D)	the following shall be inserted as provision (ix): “(ix)
any other event as a result of which the Shares represent fewer or more Underlying Shares than, and/or any property or assets
in addition to, or as a whole or partial replacement of, in each case, the number of Underlying Shares represented by the Shares
prior to such event.”



 


		(B)	In making any adjustment following any Potential Adjustment
Event, the Calculation Agent shall have reference to (to the extent necessary or appropriate among other factors) any adjustment
made by the Depositary under the Deposit Agreement, any fees and/or expenses of the Depositary and any withholding or deduction
of taxes. If the Calculation Agent determines that no adjustment that it could make will produce a commercially reasonable result,
it shall notify the parties that the relevant consequence shall be the termination of the relevant Transaction, in which case
“Cancellation and Payment (Calculation Agent Determination)” will be deemed to apply and any payment to be made by
one party to the other shall be calculated in accordance with Section 12.7 of the Equity Definitions (as amended by this Confirmation).



 


		(C)	If a Potential Adjustment Event occurs under Section
11.2(e)(viii) of the Equity Definitions (as amended by this Confirmation), then the following further amendments shall be deemed
to be made to Section 11.2(c) of the Equity Definitions in respect of such Potential Adjustment Event:



 


		(i)	the words “the Calculation Agent will determine
whether such Potential Adjustment Event has a material effect on the theoretical value of the relevant Shares, options on the
Shares or the Transaction” shall be deleted and replaced with the words “the Calculation Agent will determine whether
such Potential Adjustment Event has a material economic effect on such Transaction”; and



 


		(ii)	the words “as the Calculation Agent determines
appropriate to account for that material effect” shall be deleted and replaced with the words “as the Calculation
Agent determines appropriate to account for such economic effect on such Transaction”.



 


		(D)	The definitions of “Merger Event”, “Tender
Offer”, “Announcement Date”, “Share-for-Share”, “Share-for-Other” and “Share-for-Combined”
in Section 12.1 of the Equity Definitions shall be amended in accordance with the DS Amendment.



 


		(E)	In making any adjustment in respect of a Merger Event,
Tender Offer or Announcement Event in relation to the Underlying Shares, the Calculation Agent shall in determining any adjustment
pursuant to Modified Calculation Adjustment, have reference to (amongst other factors) any adjustment made by the Depositary under
the Deposit Agreement, any fees and/or expenses of the Depositary and any withholding or deduction of taxes, as determined by
the Calculation Agent in its commercially reasonable discretion.



 


		(F)	The definitions of Nationalization and Insolvency in
Section 12.6 of the Equity Definitions shall be amended in accordance with the DS Amendment.



 


		(G)	The consequence of a Nationalization or Insolvency in
respect of the Depositary shall be Cancellation and Payment.



 


		(H)	If a Delisting of the Shares occurs or the Depositary
announces that the Deposit Agreement is (or will be) terminated, then:



 




    	 	32	 



     


    

 


		(i)	Cancellation and Payment will apply as provided in this
Confirmation; and



 


		(ii)	where Cancellation and Payment applies under (H)(i) above
in respect of a termination of the Deposit Agreement, the Equity Definitions shall be interpreted as follows: (i) such termination
shall be deemed to be an “Extraordinary Event”; (ii) Cancellation and Payment shall apply as defined in Section 12.6(c)(ii)
of the Equity Definitions; and (iii) the definition of “Announcement Date” in Section 12.1(l) of the Equity Definitions
shall include the following additional clause (vii) at the end of the first sentence thereof: “(vii) in the case of a termination
of the Deposit Agreement, the date of the first public announcement by the Depositary that the Deposit Agreement is (or will be)
terminated”.



 


		(I)	If Cancellation and Payment applies under Section 9(cc)(ii)(G)
or Section 9(cc)(ii)(H) of this Confirmation in respect of a Transaction, then the Determining Party shall be Dealer.



 


		(J)	The definition of “Insolvency Filing” in
Section 12.9(a)(iv) of the Equity Definitions shall be amended in accordance with the DS Amendment.



 


		(K)	For the avoidance of doubt, where a provision is amended
by this Section 9(cc) in accordance with the DS Amendment, if the event described in such provision occurs in respect of the Underlying
Shares or Underlying Shares Issuer, then the consequence of such event shall be interpreted consistently with the DS Amendment
and such event.



 




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Please confirm that
the foregoing correctly sets forth the terms of our agreement by executing this Confirmation and returning it to Dealer.


 


Very truly yours,


 


	 	MORGAN STANLEY & CO. LLC
	 	 
	 	By:	/s/ Authorized Signatory
	 	Authorized Signatory
	 	Name:	 


 




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Accepted and confirmed

as of the Trade Date:


 


	NIO Inc.	 
	 	 	 
	By:	/s/ Authorized Signatory	 
	Authorized Signatory	 
	Name:	 	 


 




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