Exhibit 10.1


 


FORM OF CAPPED CALL CONFIRMATION


 


[INSERT NAME AND ADDRESS OF DEALER]


 


Opening Transaction


 


	
  To:

  	
  Virgin Media Inc.

  909 Third Avenue, Suite 2863

  New York, New York 10022

  
	
   

  	
   

  
	
  A/C:

  	
  [Insert Account Number]

  
	
   

  	
   

  
	
  From:

  	
  [Dealer]

  
	
   

  	
   

  
	
  Re:

  	
  Capped
  Call Transaction

  
	
   

  	
   

  
	
  Ref.
  No:

  	
  [Insert
  Reference Number]

  
	
   

  	
   

  
	
  Date:

  	
  [         ],
  2010

  



 


Dear
Sir(s):


 


The
purpose of this communication (this “Confirmation”)
is to set forth the terms and conditions of the above-referenced transaction
entered into on the Trade Date specified below (the “Transaction”)
between [Dealer] (“Dealer”)
[, represented by [         ] (the
“Agent”) as its agent,](1) and
Virgin Media Inc. (“Counterparty”).  The additional terms of the Transaction are
as set forth in the Trade Notification in the form of Schedule A hereto (the “Trade Notification”), which shall reference this
Confirmation and supplement, form a part of, and be subject to this
Confirmation.  This Confirmation as
supplemented by the Trade Notification shall constitute a “Confirmation” as
referred to in the ISDA Master Agreement specified below.


 






(1) 
Delete if not applicable to Dealer and add Agent specific provision in the
Confirmation if applicable


 

















 


1.     This Confirmation and the Trade Notification are subject to, and
incorporate, the definitions and provisions of the 2006 ISDA Definitions (the “2006 Definitions”) and the definitions and provisions of the
2002 ISDA Equity Derivatives Definitions (the “Equity
Definitions”, and together with the 2006 Definitions, the “Definitions”), in each case as published by the
International Swaps and Derivatives Association, Inc. (“ISDA”).  In the event
of any inconsistency between the 2006 Definitions and the Equity Definitions,
the Equity Definitions will govern. 
Certain defined terms used herein have the meanings assigned to them in
the Indenture dated as of April 16, 2008 between Counterparty and The Bank
of New York, as trustee (the “Indenture”),
relating to the USD1,000,000,000 principal amount of 6.50% Convertible Senior
Notes due 2016 (the “Convertible Securities”).  In the event of any inconsistency between the
terms defined in the Indenture and this Confirmation as supplemented by the
Trade Notification, this Confirmation as supplemented by the Trade Notification
shall govern.  The parties further
acknowledge that references to the Indenture herein are references to the
Indenture as in effect on the date of this Confirmation and if the Indenture is
amended, modified or supplemented following such date, any such amendment,
modification or supplement will be disregarded for purposes of this
Confirmation (other than Section 8(b)(ii) below) unless the parties
agree otherwise in writing.


 


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


 


This
Confirmation as supplemented by the Trade Notification evidences a complete and
binding agreement between Dealer and Counterparty as to the terms of the
Transaction to which this Confirmation and the Trade Notification relate.  This Confirmation and the Trade Notification
shall be subject to an agreement (the “Agreement”) in
the form of the 1992 ISDA Master Agreement (Multicurrency—Cross Border) as if
Dealer and Counterparty had executed an agreement in such form on the date
hereof (but without any Schedule except for (i) the election of Loss and
Second Method (it being agreed that any Loss will be determined by the relevant
party acting in good faith and using commercially reasonable procedures in
order to produce a commercially reasonable result), and US Dollars (“USD”) as the Termination Currency, (ii) the replacement
of the word “third” in the last line of Section 5(a)(i) of the
Agreement with the word “first”, (iii) the election that the “Cross
Default” provisions of Section 5(a)(vi) of the Agreement shall apply
to Counterparty and shall apply to Dealer, with the deletion of the words “, or
becoming capable at such time of being declared,” from clause (1) of Section 5(a)(vi) and
the specification of a “Threshold Amount” for Dealer equal to [USD100 million] [2%
of shareholders’ equity of Dealer (with “Specified Indebtedness” not including
obligations in respect of deposits received in the ordinary course of Dealer’s
banking business)] and a “Threshold Amount” for Counterparty equal to the USD
equivalent (as determined by the Calculation Agent) of GBP50 million and (iv) the
insertion of “, absent manifest error” immediately before the period at the end
of the last sentence of Section 6(d)(i)). 
In addition, Section 5(a)(vi) of the Agreement shall be
amended by adding at the end thereof after the semicolon the following: “provided that such default shall not constitute an Event of
Default under (2) above if it arises from a failure to pay caused by an
error or omission of an administrative or operational nature where (i) funds
required to make the relevant payment were available to the relevant party to
enable it to make such payment when due and (ii) such payment is in fact
made within two Local Business Days after the relevant party receives written
notice from an interested party of such default;”.


 


All
provisions contained in, or incorporated by reference to, the Agreement will
govern this Confirmation and the Trade Notification except as expressly
modified herein or therein.  In the event
of any inconsistency between this Confirmation, the Trade Notification and
either the Definitions or the Agreement, the following will prevail for
purposes of the Transaction in order of precedence indicated: (i) the
Trade Notification, (ii) this Confirmation, (iii) the Agreement
(without regard to the Trade Notification and the Confirmation) and (iv) the
Definitions.


 


The
Transaction hereunder shall be the sole Transaction under the Agreement.  If there exists any ISDA Master Agreement
between Dealer and Counterparty or any confirmation or other agreement between
Dealer and Counterparty pursuant to which an ISDA Master Agreement is deemed to
exist between Dealer and Counterparty, then notwithstanding anything to the
contrary in such ISDA Master 


 


2

















 


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 and as defined in, or otherwise governed by, such existing or deemed ISDA
Master Agreement.


 


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


 


General
Terms:


 




	
  Trade
  Date:

  	
   

  	
  [           ],
  2010

  
	
   

  	
   

  	
   

  
	
  Effective
  Date:

  	
   

  	
  [           ],
  2010

  
	
   

  	
   

  	
   

  
	
  Option
  Style:

  	
   

  	
  Modified
  American, as described under “Procedures for Exercise” below.

  
	
   

  	
   

  	
   

  
	
  Option
  Type:

  	
   

  	
  Call

  
	
   

  	
   

  	
   

  
	
  Seller:

  	
   

  	
  Dealer

  
	
   

  	
   

  	
   

  
	
  Buyer:

  	
   

  	
  Counterparty

  
	
   

  	
   

  	
   

  
	
  Shares:

  	
   

  	
  The
  Common Stock of Counterparty, par value USD0.01 (Ticker Symbol: “VMED”).

  
	
   

  	
   

  	
   

  
	
  Number
  of Options:

  	
   

  	
  900,000,000,
  which is 90% of the number of Convertible Securities in denominations of
  USD1,000 principal amount issued by Counterparty and outstanding as of the
  Trade Date. For the avoidance of doubt, the Number of Options outstanding
  shall be reduced by each exercise of Options hereunder.

  
	
   

  	
   

  	
   

  
	
  Option Entitlement:

  	
   

  	
  As of any date, a number of Shares per Option
  equal to the “Conversion Rate” (as defined in the Indenture) as of such date,
  but without regard to any adjustments to the Conversion Rate pursuant to a
  Fundamental Change Adjustment or a Discretionary Adjustment.

  
	
   

  	
   

  	
   

  
	
  Fundamental Change Adjustment:

  	
   

  	
  Any adjustment to the Conversion Rate
  pursuant to Section 12.01(e) of the Indenture.

  
	
   

  	
   

  	
   

  
	
  Discretionary Adjustment:

  	
   

  	
  Any adjustment to the Conversion Rate
  pursuant to Section 12.04(f) of the Indenture.

  
	
   

  	
   

  	
   

  
	
  Strike
  Price:

  	
   

  	
  As
  of any date, an amount in USD equal to USD1,000 divided by
  the Option Entitlement as of such date.

  
	
   

  	
   

  	
   

  
	
  Cap
  Price:

  	
   

  	
  USD[   ]

  
	
   

  	
   

  	
   

  
	
  Number
  of Shares:

  	
   

  	
  The
  product of the Number of Options [and/,] the Option Entitlement [and the
  Applicable Percentage].

  
	
   

  	
   

  	
   

  
	
  [Applicable
  Percentage:

  	
   

  	
  [    ]%]

  
	
   

  	
   

  	
   

  
	
  Premium:

  	
   

  	
  As
  set forth in the Trade Notification, to be determined by reference to the
  table set forth in Schedule B and based on the Hedge Period Reference Price.
  If the exact Hedge Period Reference Price does not appear in such table, the
  Premium shall be determined by linear interpolation or extrapolation

  






 


3

















 




	
   

  	
   

  	
  using
  the two closest Hedge Period Reference Prices appearing in such table.

  
	
   

  	
   

  	
   

  
	
  Initial Premium:

  	
   

  	
  USD[            ]

  
	
   

  	
   

  	
   

  
	
  Initial
  Premium Payment Date:

  	
   

  	
  Effective
  Date

  
	
   

  	
   

  	
   

  
	
  Additional
  Payment:

  	
   

  	
  (i) If
  the Additional Premium Amount is greater than zero, Counterparty shall pay to
  Dealer the Additional Premium Amount on the Additional Premium Payment Date
  and (ii) if the Additional Premium Amount is less than zero, Dealer
  shall pay to Counterparty the absolute value of such difference on the
  Additional Premium Payment Date.

  
	
   

  	
   

  	
   

  
	
  Additional
  Premium Amount:

  	
   

  	
  Premium
  minus Initial Premium.

  
	
   

  	
   

  	
   

  
	
  Additional
  Premium Payment Date:

  	
   

  	
  As
  set forth in the Trade Notification, to be the third Exchange Business Day
  following the Hedge Period End Date.

  
	
   

  	
   

  	
   

  
	
  Exchange:

  	
   

  	
  NASDAQ Global Select Market

  
	
   

  	
   

  	
   

  
	
  Related
  Exchange:

  	
   

  	
  All
  Exchanges

  
	
   

  	
   

  	
   

  
	
  Hedge:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Hedge
  Period:

  	
   

  	
  The
  period from and including the Hedge Period Start Date to and including the
  Hedge Period End Date.

  
	
   

  	
   

  	
   

  
	
  Hedge
  Period Start Date:

  	
   

  	
  [            ],
  2010[, subject to postponement as provided in “Counterparty Notification”
  below.](2)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Hedge
  Period End Date:

  	
   

  	
  [            ],
  2010, subject to postponement as provided in “Valuation Disruption” [and
  “Counterparty Notification”](3) below.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Hedge
  Period Reference Price:

  	
   

  	
  As
  set forth in the Trade Notification, to be the average of the VWAP Prices for
  the Exchange Business Days in the Hedge Period, subject to “Valuation
  Disruption” below.

  
	
   

  	
   

  	
   

  
	
  VWAP
  Price:

  	
   

  	
  For
  any Exchange Business Day, as determined by the Calculation Agent based on
  the NASDAQ 10b-18 Volume Weighted Average Price per Share for the regular
  trading session (including any extensions thereof) of the Exchange on such
  Exchange Business Day (without regard to pre-open or after hours trading
  outside of such regular trading session for such Exchange Business Day), as
  published by Bloomberg at 4:15 P.M. New York City time (or 15 minutes
  following the end of any extension of the regular trading session) on such
  Exchange Business Day, on Bloomberg page “VMED Q <Equity> AQR_SEC”
  (or any successor thereto), or if such price is not so reported on such
  Exchange Business

  






 






(2)  Delete for Dealer 1


 


(3)  Delete for Dealer 1


 


4

















 


	
   

  	
   

  	
  Day
  for any reason or the Calculation Agent determines that such price is clearly
  erroneous, such VWAP Price shall be as determined by the Calculation
  Agent.  For purposes of calculating the
  VWAP Price, the Calculation Agent will include only those trades that are
  reported during the period of time during which Counterparty could purchase
  its own shares under Rule 10b-18(b)(2) and are effected pursuant to
  the conditions of Rule 10b-18(b)(3), each under the Securities Exchange
  Act of 1934, as amended (the “Exchange Act”)
  (such trades, “Rule 10b-18 eligible transactions”).

  
	
   

  	
   

  	
   

  
	
  Valuation
  Disruption:

  	
   

  	
  The
  definition of “Market Disruption Event” in Section 6.3(a) of the
  Equity Definitions is hereby amended by deleting the words “at any time
  during the one-hour period that ends at the relevant Valuation Time, Latest
  Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the
  case may be” and inserting the words “at any time on any Scheduled Trading
  Day during the Hedge Period” after the word “material,” in the third line
  thereof.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Section 6.3(d) of
  the Equity Definitions is hereby amended by deleting the remainder of the
  provision following the term “Scheduled Closing Time” in the fourth line
  thereof.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notwithstanding
  anything to the contrary in the Equity Definitions, to the extent that a
  Disrupted Day occurs in the Hedge Period, the Calculation Agent may postpone
  the Hedge Period End Date by a number of days that is no more than the number
  of applicable Disrupted Days.  If any
  such Disrupted Day is a Disrupted Day because of a Market Disruption Event
  (or a deemed Market Disruption Event as provided herein), the Calculation
  Agent shall determine whether (i) such Disrupted Day is a Disrupted Day
  in full, in which case the VWAP Price for such Disrupted Day shall not be
  included for purposes of determining the Hedge Period Reference Price or
  (ii) such Disrupted Day is a Disrupted Day only in part, in which case
  the VWAP Price for such Disrupted Day shall be determined by the Calculation Agent
  based on Rule 10b-18 eligible transactions in the Shares on such
  Disrupted Day taking into account the nature and duration of such Market
  Disruption Event, and the weighting of the VWAP Price for the relevant
  Exchange Business Days during the Hedge Period shall be adjusted by the
  Calculation Agent for purposes of determining the Hedge Period Reference
  Price with such adjustments based on, among other factors, the duration of
  any Market Disruption Event and the volume, historical trading patterns and
  price of the Shares.  Any Exchange
  Business Day on which, as of the date hereof, the Exchange is

  



 


5

















 


	
   

  	
   

  	
  scheduled
  to close prior to its normal close of trading shall be deemed not to be an
  Exchange Business Day; if a closure of the Exchange prior to its normal close
  of trading on any Exchange Business Day is scheduled following the date
  hereof, then such Exchange Business Day shall be deemed to be a Disrupted Day
  in full.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  If
  a Disrupted Day occurs during the Hedge Period and each of the eight
  immediately following Scheduled Trading Days is a Disrupted Day, then the
  Calculation Agent may deem such eighth Scheduled Trading Day to be an
  Exchange Business Day that is not a Disrupted Day and determine the VWAP Price
  for such eighth Scheduled Trading Day using its good faith estimate of the
  value of the Shares on such eighth Scheduled Trading Day based on the volume,
  historical trading patterns and price of the Shares and such other factors as
  it deems appropriate.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  In
  the event that Dealer concludes, in its reasonable discretion based on the
  advice of nationally recognized outside counsel, that it is appropriate with
  respect to any legal, regulatory or self-regulatory requirements or related
  policies and procedures generally applied by Dealer to transactions similar
  to the Transaction, for it to refrain from or decrease any market activity
  relating to the Transaction on any Scheduled Trading Day or Days during the
  Hedge Period, Dealer may by written notice to Counterparty (and, if the
  Calculation Agent is neither Dealer nor Counterparty, the Calculation Agent),
  elect to deem that a Market Disruption Event has occurred and will be
  continuing on such Scheduled Trading Day or Days.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notwithstanding
  anything to the contrary contained herein, Dealer or the Calculation Agent,
  as the case may be, shall notify the parties of any determination pursuant to
  these Valuation Disruption provisions (which notice shall state the
  anticipated Hedge Period End Date as a result of such determination) as
  promptly as commercially reasonably practicable (but in any event no later
  than the Exchange Business Day immediately following the affected Exchange
  Business Day [or, if such affected Exchange Business Day is the scheduled
  Hedge Period End Date, by 8:00 P.M. New York City time on such scheduled
  Hedge Period End Date)](4) and shall notify the parties as promptly as
  commercially reasonably practicable of the cessation of or change in the
  effect of any event giving rise to a determination pursuant to these
  Valuation Disruption provisions (which notice shall state the anticipated
  Hedge Period End Date as a

  



 






(4) 
Delete for last Dealer


 


6

















 


	
   

  	
   

  	
  result
  of such cessation or change in effect of any event giving rise to such
  determination) (but in any event no later than the Exchange Business Day
  immediately following the affected Exchange Business Day [or, if such
  affected Exchange Business Day is the scheduled Hedge Period End Date, by
  8:00 P.M. New York City time on such scheduled Hedge Period End
  Date)](5).  Notwithstanding
  Section 12(a) of the Agreement, any notice described in this
  paragraph that is given by the times required in this paragraph will be
  deemed given and effective on the day so given.  Without limiting the obligation of Dealer
  or the Calculation Agent, as the case may be, to notify the parties of any
  determination and the occurrence of a cessation of or change in the effect of
  any event giving rise to a determination pursuant to these Valuation
  Disruption provisions, failure by Dealer or the Calculation Agent, as the
  case may be, to notify the parties of such determination or occurrence shall
  neither affect the validity of such determination or occurrence nor the
  effect of such determination or occurrence on the Transaction.

  
	
   

  	
   

  	
   

  
	
  [Counterparty
  Notification:

  	
   

  	
  If
  the hedge period under a transaction to which Counterparty is a party similar
  to the Transaction would overlap with the Hedge Period for the Transaction,
  then, prior to the scheduled Hedge Period Start Date, Counterparty shall so
  notify Dealer and the Hedge Period Start Date shall be postponed until
  Counterparty notifies Dealer that such hedge period under such other
  transaction is complete (and Counterparty agrees that it shall notify Dealer
  of such completion no later than the later of (i) 6:00 P.M. New
  York City time on the date Counterparty receives notice of such overlap and
  (ii) one hour after Counterparty receives notice of such overlap) and
  the Hedge Period End Date shall be postponed by an equal number of Scheduled
  Trading Days.  Notwithstanding Section 12(a) of the Agreement,
  any notice described in this paragraph that is given by the times required in
  this paragraph will be deemed given and effective on the day so given.](6)

  
	
   

  	
   

  	
   

  
	
  Procedures
  for Exercise:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exercise
  Date:

  	
   

  	
  Each
  Conversion Date.

  
	
   

  	
   

  	
   

  
	
  Conversion
  Date:

  	
   

  	
  Each
  “Conversion Date” (as defined in the Indenture) occurring during the Exercise
  Period for Convertible Securities, each in denominations of USD1,000
  principal amount, that are submitted for conversion on such Conversion Date
  in accordance with the terms of the Indenture, excluding (i) the first

  



 






(5)  Delete for last Dealer


 


(6)  Delete for Dealer 1


 


7

















 




	
   

  	
   

  	
  100,000,000
  Convertible Securities that are surrendered for conversion, which represents
  10% of the number of Convertible Securities outstanding as of the Trade Date
  (the “Uncovered Convertible Securities”)
  and (ii) Convertible Securities that are Excluded Convertible Securities
  (such non-excluded Convertible Securities the “Relevant Convertible Securities” for such Conversion Date).

  
	
   

  	
   

  	
   

  
	
  Excluded
  Convertible Securities:

  	
   

  	
  Convertible
  Securities that are not Uncovered Convertible Securities and are surrendered
  for conversion on any date prior to the 35th “Scheduled Trading Day”
  immediately preceding the “Maturity Date” (each as defined in the Indenture).

  
	
   

  	
   

  	
   

  
	
  Exercise
  Period:

  	
   

  	
  The
  period from and excluding the Effective Date to and including the Expiration
  Date.

  
	
   

  	
   

  	
   

  
	
  Expiration
  Date:

  	
   

  	
  The
  earlier of (i) the last day on which any Convertible Securities remain
  outstanding and (ii) the last day on which Convertible Securities can be
  surrendered for conversion in accordance with the terms of the Indenture.

  
	
   

  	
   

  	
   

  
	
  Automatic
  Exercise on Conversion Dates:

  	
   

  	
  Applicable;
  and means that on each Conversion Date, a number of Options equal to the
  number of Relevant Convertible Securities for such Conversion Date in
  denominations of USD1,000 principal amount shall be automatically exercised,
  subject to “Notice of Exercise” below.

  
	
   

  	
   

  	
   

  
	
  Notice
  Deadline:

  	
   

  	
  In
  respect of any exercise of Options hereunder on any Conversion Date,
  2:00 P.M., New York City time on the Exchange Business Day immediately
  following such Conversion Date.

  
	
   

  	
   

  	
   

  
	
  Notice
  of Exercise:

  	
   

  	
  Notwithstanding
  anything to the contrary in the Equity Definitions, Dealer shall have no
  obligation to make any payment or delivery in respect of any exercise of
  Options hereunder and such obligation in respect of such exercise shall be
  permanently extinguished unless Counterparty notifies Dealer in writing prior
  to the Notice Deadline in respect of such exercise, of (i) the number of
  Relevant Convertible Securities being converted on the related Conversion
  Date and (ii) the scheduled settlement date under the Indenture for the
  Relevant Convertible Securities for such Conversion Date corresponding to
  such Exercise Date. For the avoidance of doubt, if Counterparty fails to give
  such notice when due in respect of any exercise of Options hereunder,
  Dealer’s obligation to make any payment or delivery in respect of such
  exercise shall be permanently extinguished, and late notice shall not cure
  such failure; provided that, notwithstanding
  the foregoing, such notice (and the related exercise of Options) shall be
  effective if given after the Notice Deadline, but

  






 


8

















 




	
   

  	
   

  	
  prior
  to 2:00 P.M., New York City time, on the Exchange Business Day
  immediately preceding the “Maturity Date” (as defined in the Indenture), in
  which event the Calculation Agent shall have the right to adjust the Delivery
  Obligation as appropriate to reflect the additional costs (including, but not
  limited to, hedging mismatches and market losses) and reasonable expenses incurred
  by Dealer in connection with its hedging activities (including the unwinding
  of any hedge position) as a result of its not having received such notice on
  or prior to the Notice Deadline.

  
	
   

  	
   

  	
   

  
	
  Notice
  of Convertible Security Settlement Method:

  	
   

  	
  Counterparty
  shall notify Dealer in writing before 2:00 P.M., New York City time, on
  the second “Scheduled Trading Day” immediately prior to the 62nd “Scheduled
  Trading Day” preceding the “Maturity Date” (each as defined in the Indenture)
  of the irrevocable election by Counterparty, in accordance with
  Section 12.02 of the Indenture, of the settlement method and, if
  applicable, the “Specified Dollar Amount” (as defined in the Indenture)
  applicable to Relevant Convertible Securities with a Conversion Date occurring
  on or after August 15, 2016 and ending on and including the second
  “Scheduled Trading Day” immediately preceding the “Maturity Date” (each as
  defined in the Indenture) (the “Free
  Convertibility Period”). If Counterparty fails to provide such
  timely notice, Counterparty shall be deemed to have notified Dealer that the
  Relevant Convertible Securities will be settled entirely by the delivery of
  Shares. Counterparty acknowledges its responsibilities under applicable
  securities laws, and in particular Section 9 and
  Section 10(b) of the Exchange Act (as defined below) and the
  rules and regulations thereunder, in respect of any election of a
  settlement method with respect to the Convertible Securities that results in
  a Convertible Security Settlement Method other than Net Share Settlement (as
  defined below).

  
	
   

  	
   

  	
   

  
	
  Dealer’s
  Telephone Number

  	
   

  	
  As
  specified in Section 6(b) below.

  
	
  and
  Telex and/or Facsimile Number

  	
   

  	
   

  
	
  and
  Contact Details for purpose of

  	
   

  	
   

  
	
  Giving Notice:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Settlement
  Terms:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Settlement
  Date:

  	
   

  	
  For
  any Exercise Date, the settlement date for the cash and Shares (if any) to be
  delivered in respect of the Relevant Convertible Securities for the relevant
  Conversion Date under the terms of the Indenture assuming that Counterparty
  had elected to satisfy its conversion obligation in respect of such Relevant
  Convertible Securities by the Convertible Security Settlement Method,
  notwithstanding any different

  






 


9

















 




	
   

  	
   

  	
  actual
  election by Counterparty with respect to the settlement method for such
  Relevant Convertible Securities; provided that
  the Settlement Date shall not be prior to the Exchange Business Day
  immediately following the date Counterparty provides the Notice of Delivery
  Obligation prior to 2:00 P.M., New York City time.

  
	
   

  	
   

  	
   

  
	
  Delivery
  Obligation:

  	
   

  	
  In
  lieu of the obligations set forth in Sections 8.1 and 9.1 of the Equity
  Definitions, and subject to “Notice of Exercise” above, in respect of an
  Exercise Date occurring on a Conversion Date, Dealer will deliver to
  Counterparty, on the related Settlement Date, a number of Shares and/or
  amount of cash in USD equal to [the product of (i) the Applicable
  Percentage and (ii)] the aggregate number of Shares (if any, and cash in lieu
  of fractional Shares, if any) that Counterparty would be obligated to deliver
  to the holder(s) of the Relevant Convertible Securities converted on
  such Conversion Date pursuant to Section 12.02(a) of the Indenture
  and/or the aggregate amount of cash, if any, in excess of USD1,000 per Convertible
  Security (in denominations of USD1,000) that Counterparty would be obligated
  to deliver to holder(s) pursuant to Section 12.02(a) of the
  Indenture, if Counterparty had elected to satisfy its conversion obligation
  in respect of such Relevant Convertible Securities by the Convertible
  Security Settlement Method, notwithstanding any different actual election by
  Counterparty with respect to the settlement method for such Convertible
  Securities (collectively, the “Convertible
  Obligation”); provided that
  (i) if the Convertible Obligation exceeds the Capped Convertible
  Obligation, then the Delivery Obligation shall be the Capped Convertible
  Obligation and (ii) the Convertible Obligation (and, for the avoidance
  of doubt, the Capped Convertible Obligation) shall be determined excluding
  any Shares and/or cash that Counterparty is obligated to deliver to
  holder(s) of the Relevant Convertible Securities as a direct or indirect
  result of (i) any adjustments to the Conversion Rate pursuant to a
  Discretionary Adjustment, (ii) any interest payment on the Relevant
  Convertible Securities that Counterparty is (or would have been) obligated to
  deliver to holder(s) of the Relevant Convertible Securities for such
  Conversion Date and (iii) any “Additional Amounts” as defined in the
  Indenture payable by Counterparty pursuant to Section 8.03 of the
  Indenture).

  
	
   

  	
   

  	
   

  
	
  Capped
  Convertible Obligation:

  	
   

  	
  In
  respect of an Exercise Date occurring on a Conversion Date, the Convertible
  Obligation that would apply if the “Daily VWAP” for each “VWAP Trading Day”
  in the “Observation Period” (each as defined in the Indenture) or, if
  applicable, the assumed “Observation Period” specified in clause (ii)

  






 


10
















 




	
   

  	
   

  	
  of
  “Convertible Security Settlement Method” below, were the Cap Price.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Convertible
  Security Settlement Method:

  	
   

  	
  For
  any Relevant Convertible Securities, if Counterparty has notified Dealer in
  the Notice of Convertible Security Settlement Method that it has elected to
  satisfy its conversion obligation in respect of such Relevant Convertible
  Securities in cash or in a combination of cash and Shares in accordance with
  Section 12.02(b) of the Indenture (a “Cash Election”) with a “Specified Dollar Amount” (as defined
  in the Indenture) of at least USD1,000, the Convertible Security Settlement
  Method shall be the settlement method actually so elected by Counterparty in
  respect of such Relevant Convertible Securities; otherwise, the Convertible
  Security Settlement Method shall (i) assume Counterparty had made a Cash
  Election with respect to such Relevant Convertible Securities with a
  “Specified Dollar Amount” (as defined in the Indenture) of USD1,000 per
  Relevant Convertible Security (“Net Share Settlement”)
  and (ii) be calculated as if the relevant Observation Period pursuant to
  Section 12.02(a) of the Indenture consisted of 60 “VWAP Trading
  Days” commencing on the 62nd “Scheduled Trading Day” prior to the “Maturity
  Date” (each as defined in the Indenture).

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Notice
  of Delivery Obligation:

  	
   

  	
  No
  later than the Exchange Business Day immediately following the last day of
  the relevant Observation Period, Counterparty shall give Dealer notice of the
  final number of Shares and/or cash comprising the relevant Convertible
  Obligation; provided that, with
  respect to any Exercise Date occurring during the Free Convertibility Period,
  Counterparty may provide Dealer with a single notice of the aggregate number
  of Shares and/or cash comprising the Convertible Obligations for all Relevant
  Convertible Securities (it being understood, for the avoidance of doubt, that
  the requirement of Counterparty to deliver such notice shall not limit
  Counterparty’s obligations with respect to Notice of Exercise or Notice of
  Convertible Security Settlement Method, each as set forth above, in any way).

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Other
  Applicable Provisions:

  	
   

  	
  To
  the extent Dealer is obligated to deliver Shares hereunder, the provisions of
  Sections 9.1(c) (modified, however, by deleting the words “such payment and
  such delivery” contained therein and replacing them with the words “the
  relevant delivery”), 9.8, 9.9, 9.10 and 9.11 of the Equity Definitions will
  be applicable as if “Physical Settlement” applied to the Transaction; provided that the Representation and
  Agreement contained in Section 9.11 of the Equity Definitions shall be 

  






 


11

















 




	
   

  	
   

  	
  modified
  by excluding any representations therein relating to restrictions,
  obligations, limitations or requirements under applicable securities laws
  that exist as a result of the fact that Counterparty is the Issuer of the
  Shares.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Adjustments:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Method
  of Adjustment:

  	
   

  	
  Notwithstanding
  Section 11.2 of the Equity Definitions, upon the occurrence of any event
  or condition giving rise to an adjustment pursuant to Section 12.04 of
  the Indenture (an “Adjustment Event”),
  the Calculation Agent shall make the corresponding adjustment in respect of
  any one or more of the Number of Options, the Option Entitlement and any
  other variable relevant to the exercise, settlement, payment or other terms
  of the Transaction, to the extent an analogous adjustment is made under the
  Indenture, and may adjust the Cap Price as appropriate to account for the
  economic effect on the Transaction of such event or condition; provided that (i) the Cap Price
  shall not be adjusted so that it is less than the Strike Price, (ii) in
  the case of an Adjustment Event of the type described in
  Section 12.04(d) of the Indenture (an “Adjustment
  Dividend”), the Cap Price shall be adjusted by the same ratio as
  that by which the Strike Price changes as a result of such Adjustment Event, (iii) if an Adjustment Dividend occurs during the Hedge Period the
  magnitude of such adjustment shall be multiplied by a fraction the numerator
  of which is the number of Exchange Business Days (excluding Disrupted Days)
  from and including the first Exchange Business Day of the Hedge Period to but
  excluding the ex-dividend date for such Adjustment Event and the denominator
  of which is the total number of Exchange Business Days scheduled to occur
  during the Hedge Period (subject to arithmetic adjustment by the Calculation
  Agent in the event of partially Disrupted Days occurring during any such
  period) and (iv) if an Adjustment Dividend occurs during the Observation
  Period (or any assumed Observation Period hereunder) for any Relevant
  Convertible Securities, the magnitude of such adjustment shall be multiplied
  by a fraction the numerator of which is the number of Exchange Business Days
  (excluding Disrupted Days) from but excluding the ex-dividend date for such
  Adjustment Event to and including the scheduled last Exchange Business Day of
  such Observation Period and the denominator of which is the total number of
  Exchange Business Days scheduled to occur during such Observation Period
  (subject to arithmetic adjustment by the Calculation Agent in the event of
  partially Disrupted Days occurring during such Observation Period). 
  Promptly upon the occurrence of any Adjustment Event, Counterparty shall
  notify the Calculation Agent of such Adjustment Event; and 

  






 


12

















 




	
   

  	
   

  	
  once the adjustments to be made to the terms of the Indenture
  and the Convertible Securities in respect of such Adjustment Event have been
  determined, Counterparty shall promptly notify the Calculation Agent in
  writing of the details of such adjustments.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  All adjustments in respect of Adjustment Events shall
  be made assuming that Counterparty had elected to satisfy its conversion
  obligation in respect of such Relevant Convertible Securities by the
  Convertible Security Settlement Method, notwithstanding any different actual
  election by Counterparty with respect to the settlement method for such
  Relevant Convertible Securities.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Extraordinary
  Events:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Merger
  Events:

  	
   

  	
  Notwithstanding
  Section 12.1(b) of the Equity Definitions, a “Merger Event” means
  the occurrence of any event or condition set forth in Section 12.09 of
  the Indenture.

  
	
   

  	
   

  	
   

  
	
  Consequences
  of Merger Events:

  	
   

  	
  Notwithstanding
  Section 12.2 of the Equity Definitions, (i) upon the occurrence of
  a Merger Event, the Calculation Agent shall make the corresponding adjustment
  in respect of any adjustment under the Indenture to any one or more of the
  nature of the Shares, the Number of Options, the Option Entitlement and any
  other variable relevant to the exercise, settlement, payment or other terms
  of the Transaction, to the extent an analogous adjustment is made under the
  Indenture in respect of such Merger Event; provided
  that no such adjustment shall be made to give effect to any
  adjustment to the Conversion Rate pursuant to a Fundamental Change Adjustment
  or a Discretionary Adjustment; and provided further
  that the Calculation Agent may limit or alter any such adjustment referenced
  in this clause (i) so that the fair value of the Transaction to Dealer
  (taking into account a commercially reasonable hedge position) is not
  adversely affected as a result of such adjustment; and provided further that if, with respect
  to a Merger Event, the consideration for the Shares includes (or, at the
  option of a holder of Shares, may include) shares of an entity or person not
  organized under the laws of the United States, any State thereof or the
  District of Columbia or under the laws of England and Wales, Scotland, the
  Netherlands, Luxembourg, the Cayman Islands or Bermuda (each a “Qualifying Jurisdiction”), Cancellation and Payment
  (Calculation Agent Determination) shall apply; and (ii) the Calculation
  Agent may adjust the Cap Price as appropriate to account for the economic
  effect on the Transaction of such event; provided
  that the Cap Price shall not be adjusted so that it is less than the Strike
  Price. If, with respect to a Merger Event, the consideration for the Shares
  includes (or, at the option of a holder of

  






 


13

















 




	
   

  	
   

  	
  Shares,
  may include) shares of any entity or person organized under the laws of a
  Qualifying Jurisdiction, then Section 2(d) of the Agreement shall
  not apply to any requirement or liability relating to any payment or delivery
  obligation of Dealer and arising as a result of such Merger Event.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  All
  adjustments in respect of Merger Events shall be made assuming that
  Counterparty had elected to satisfy its conversion obligation in respect of
  such Relevant Convertible Securities by the Convertible Security Settlement
  Method, notwithstanding any different actual election by Counterparty with
  respect to the settlement method for such Relevant Convertible Securities.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Notice
  of Merger Consideration and Consequences:

  	
   

  	
  Upon
  the occurrence of a Merger Event that causes the Shares to be converted into
  the right to receive more than a single type of consideration (determined
  based upon any form of stockholder election), Counterparty shall reasonably
  promptly (but in any event prior to the effective time of such Merger Event)
  notify the Calculation Agent of (i) the type and amount of consideration
  that a holder of Shares would have been entitled to in the case of reclassifications,
  consolidations, mergers, sales or transfers of assets or other transactions
  that cause Shares to be converted into the right to receive more than a
  single type of consideration, (ii) if holders of a majority of Shares
  affirmatively make such an election, the weighted average of the types and
  amounts of consideration received by holders of a plurality of Shares that
  affirmatively make such an election (or if no (or a minority of) holders of
  Shares affirmatively make such an election, the weighted average of the types
  and amount of consideration actually received by all holders of Shares), and
  (iii) the details of the adjustment to be made under the Indenture in
  respect of such Merger Event.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Nationalization, Insolvency
  or Delisting:

  	
   

  	
  Cancellation
  and Payment (Calculation Agent Determination); provided that in addition to the provisions of
  Section 12.6(a)(iii) of the Equity Definitions, it will also
  constitute a Delisting if the Shares are not immediately re-listed, re-traded
  or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select
  Market, The NASDAQ Global Market, the London Stock Exchange, Euronext Paris,
  the Xetra/Eurex trading platforms of the Deutsche Börse Group or the Madrid
  Stock Exchange (Bolsa de Madrid) (or their respective successors); if the
  Shares are immediately re-listed, re-traded or re-quoted on any such exchange
  or quotation system, such exchange or quotation system shall thereafter be
  deemed to be the Exchange.

  






 


14

















 




	
  Additional
  Termination Event(s):

  	
   

  	
  Notwithstanding
  anything to the contrary in the Equity Definitions, if, as a result of an
  Extraordinary Event, any Transaction would be cancelled or terminated
  (whether in whole or in part) pursuant to Article 12 of the Equity
  Definitions, then upon the occurrence of an Extraordinary Event, an
  Additional Termination Event (with such terminated Transaction(s) (or
  portions thereof) being the Affected Transaction(s) and Counterparty
  being the sole Affected Party) shall be deemed to occur, and, in lieu of
  Sections 12.7, 12.8 and 12.9 of the Equity Definitions, Section 6 of the
  Agreement shall apply to such Affected Transaction(s).

  
	
   

  	
   

  	
   

  
	
  Additional
  Disruption Events:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (a)  Change
  in Law:

  	
   

  	
  Applicable;
  provided that (A) any
  determination as to whether (i) the adoption of or any change in any
  applicable law or regulation (including, without limitation, any tax law) or
  (ii) the promulgation of or any change in or public announcement of the
  formal or informal interpretation by any court, tribunal or regulatory
  authority with competent jurisdiction of any applicable law or regulation
  (including any action taken by a taxing authority), in each case, constitutes
  a “Change in Law” shall be made without regard to Section 739 of the
  Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 or any
  similar legal certainty provision in any legislation enacted, or rule or
  regulation promulgated, on or after the Trade Date and
  (B) Section 12.9(a)(ii) is hereby amended by (x) adding
  the words “(including, for the avoidance of doubt and without limitation,
  adoption or promulgation of new regulations authorized or mandated by
  existing statute)” after the word “regulation” in the second line thereof,
  (y) adding the words “or any Hedge Positions” after the word “Shares” in
  the clause (X) thereof and (z) adding the words “, or holding,
  acquiring or disposing of Shares or any Hedge Positions relating to,” after
  the word “obligations” in clause (Y) thereto.

  
	
   

  	
   

  	
   

  
	
  (b) Failure to Deliver:

  	
   

  	
  Applicable

  
	
   

  	
   

  	
   

  
	
  (c) Insolvency Filing:

  	
   

  	
  Applicable

  
	
   

  	
   

  	
   

  
	
  (d) Hedging Disruption:

  	
   

  	
  Applicable

  
	
   

  	
   

  	
   

  
	
  (e) Increased Cost of Hedging:

  	
   

  	
  Applicable

  
	
   

  	
   

  	
   

  
	
  Hedging
  Party:

  	
   

  	
  For
  all applicable Potential Adjustment Events and Extraordinary Events, Dealer

  
	
   

  	
   

  	
   

  
	
  Determining
  Party:

  	
   

  	
  For
  all applicable Extraordinary Events, Dealer

  
	
   

  	
   

  	
   

  
	
  Non-Reliance:

  	
   

  	
  Applicable

  
	
   

  	
   

  	
   

  
	
  Agreements
  and Acknowledgments

  	
   

  	
   

  
	
  Regarding
  Hedging Activities:

  	
   

  	
  Applicable

  
	
   

  	
   

  	
   

  
	
  Additional
  Acknowledgments:

  	
   

  	
  Applicable

  






 


15

















 




	
  3.             Calculation Agent:

  	
   

  	
  Dealer; provided that, following the occurrence of an Event of
  Default pursuant to 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 third-party dealer in over-the-counter
  corporate equity derivatives to act, during the period commencing on the date
  such Event of Default occurred and ending on the Early Termination Date with
  respect to such Event of Default, as the Calculation Agent with respect to
  the Transactions under this Confirmation. 
  Following any determination or calculation by the Calculation Agent
  hereunder, upon a written request by Counterparty, the Calculation Agent will
  as promptly as commercially reasonably practicable (but in any event no later
  than the date five (5) Exchange Business Days following the later of (i) the
  date of such written request and (ii) the date of such determination or
  calculation) provide to Counterparty by e-mail, to the e-mail address
  provided by Counterparty in such written request, a report (in a commonly
  used file format for the storage and manipulation of financial data without
  disclosing any proprietary models of the Calculation Agent) displaying in
  reasonable detail the basis for such determination or calculation, as the
  case may be.

  






 




	
  4.     Account Details:

   

  Dealer Payment Instructions:

   

  [                   ]

  For
  [                   ]

  A/C
  #[                   ]

  ABA: 
  [                   ]

   

  	
   

  	
   

  
	
  Counterparty Payment Instructions:

  To
  be provided by Counterparty.

  






 


5.     Offices:


 


The Office of Dealer for the Transaction is:


 


[                   ]


 


The Office of Counterparty for the Transaction is:


 


909
Third Avenue, Suite 2863, New York, New York 10022.


 


6.     Notices: For purposes of this Confirmation:


 


(a)           Address for notices or communications
to Counterparty:


 


	
  To:

  	
   

  	
  [              ]

  
	
  Attn:

  	
   

  	
  [              ]

  
	
   

  	
   

  	
  [              ]

  
	
  Telephone:

  	
   

  	
  [              ]

  
	
  Facsimile:

  	
   

  	
  [              ]

  
	
   

  	
   

  	
   

  
	
  With
  a copy to:

  	
   

  	
   

  



 


16

















 


	
  Attn:

  	
   

  	
  [              ]

  
	
   

  	
   

  	
  [              ]

  
	
  Telephone:

  	
   

  	
  [              ]

  
	
  Facsimile:

  	
   

  	
  [              ]

  



 


(b)                                 Address for
notices or communications to Dealer:


 


	
  To:

  	
   

  	
  [                   ]

  
	
   

  	
   

  	
  [                   ]

  
	
   

  	
   

  	
  [                   ]

  
	
  Attn:

  	
   

  	
  [                   ]

  
	
   

  	
   

  	
  [                   ]

  
	
  Telephone:

  	
   

  	
  [                   ]

  
	
  Facsimile:

  	
   

  	
  [                   ]

  
	
  Email:

  	
   

  	
  [                   ]

  
	
   

  	
   

  	
   

  
	
  With
  a copy to:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
  [                   ]

  
	
   

  	
   

  	
  [                   ]

  
	
  Telephone:

  	
   

  	
  [                   ]

  
	
  Facsimile:

  	
   

  	
  [                   ]

  
	
  Email:

  	
   

  	
  [                   ]

  



 


And email notification to
the following address:


[                   ]


 


(c)                                  Section 12(a) of
the Agreement is amended by inserting “or 13(c)” between “6” and “may” in the
second line thereof.


 


7.     Representations and Agreements:


 


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


 


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


 


(ii)           (A) The Shares
or securities that are convertible into, or exchangeable or exercisable for,
Shares are not, and Counterparty will not cause the Shares or any such securities
to be, subject to a “restricted period,” as such term is defined in Regulation
M promulgated under the Exchange Act (“Regulation M”)
at any time during the period commencing on the Trade Date and ending on the
second Exchange Business Day immediately following the Hedge Period End Date
or, if the VWAP Price on the second Exchange Business Day immediately prior to
the commencement of the Observation Period for any Relevant Convertible
Securities (or any assumed Observation Period hereunder) or any Unwind Period
(as defined below) is greater than 90% of the Cap Price, during the Observation
Period for any Relevant Convertible Securities (or any assumed Observation
Period hereunder) or during any Unwind Period and (B) Counterparty 


 


17

















 


shall
not engage in any “distribution,” as such term is defined in Regulation M, with
respect to Shares or securities that are convertible into, or exchangeable or
exercisable for Shares, other than a distribution meeting the requirements of
the exceptions set forth in sections 101(b)(10) and 102(b)(7) of
Regulation M, from the date hereof until the second Exchange Business Day
immediately following the Hedge Period End Date or, if the VWAP Price on the
second Exchange Business Day immediately prior to the commencement of the
Observation Period for any Relevant Convertible Securities (or any assumed
Observation Period hereunder) or any Unwind Period is greater than 90% of the
Cap Price, from the first day of the Observation Period for any Relevant
Convertible Securities (or any assumed Observation Period hereunder) or of any
Unwind Period until the second Exchange Business Day immediately following the
last day of such Observation Period (or assumed Observation Period) or Unwind
Period, as the case may be; provided that,
notwithstanding anything to the contrary contained in this Section 7(a)(ii),
the Shares or securities that are convertible into, or exchangeable or
exercisable for, Shares may be subject to a “restricted period” and
Counterparty may engage in a “distribution” of Shares or other securities for
which the Shares are a reference security for purposes of Rule 102 of
Regulation M if Counterparty notifies Dealer in writing at least five (5) Exchange
Business Days before the commencement of such “restricted period” or the “restricted
period” in respect of such “distribution” and promptly notifies Dealer of the
completion of such “distribution”. Counterparty acknowledges that such event
may cause Dealer to exercise its rights under Section 8(a), and agrees
that any such action by Counterparty shall be taken in accordance with the
requirements for the amendment or termination of a “plan” as defined in Rule 10b5-1(c).
Without limiting the generality of the foregoing, any such action shall be made
in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b-5,
and no such action shall be made at any time at which Counterparty or any
officer, director, manager or similar person of Counterparty is aware of any
material non-public information regarding Counterparty or the Shares.


 


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


 


(iv)          Without limiting the
generality of Section 3(a)(iii) of the Agreement, the Shares are not
subject to a tender offer subject to Rule 13e-1 or Rule 13e-4 under
the Exchange Act.


 


(v)           Prior to the Trade
Date, Counterparty shall deliver to Dealer evidence reasonably satisfactory to
Dealer that Counterparty’s board of directors has duly authorized the
Transaction.


 


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


 


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


 


(viii)        On each of the Trade
Date, the Initial Premium Payment Date and the Additional Premium Payment Date,
Counterparty is not “insolvent” (as such term is defined under Section 101(32)
of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to
purchase the Shares hereunder in compliance with the laws of the jurisdiction
of Counterparty’s incorporation.


 


(ix)          No state or local
(including non-U.S. jurisdictions) law or regulatory order applicable to the
Shares would give rise to any reporting, consent, registration or other
requirement (including without limitation a requirement to obtain prior
approval from any person 


 


18

















 


or
entity) by Counterparty as a result of Dealer or its affiliates owning or
holding (however defined) Shares.


 


(x)           Except as otherwise
agreed upon in writing by the parties, on the Trade Date, during the Hedge
Period and, if the VWAP Price on the second Exchange Business Day immediately
prior to the commencement of the Observation Period for any Relevant
Convertible Securities (or any assumed Observation Period hereunder) or any
Unwind Period is greater than 90% of the Cap Price, during the Observation
Period for any Relevant Convertible Securities (or any accrued Observation
Period hereunder) or during any Unwind Period, neither Counterparty nor any “affiliated
purchaser” (as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Counterparty shall directly or
indirectly (including, without limitation, by means of any cash-settled or
other derivative instrument) purchase, offer to purchase, place any bid or
limit order that would effect a purchase of, or commence any tender offer
relating to, any Shares (or an equivalent interest, including a unit of
beneficial interest in a trust or limited partnership or a depository share) or
any security convertible into or exchangeable or exercisable for Shares; provided that neither Counterparty nor any “affiliated
purchaser” of Counterparty shall be prohibited from engaging in any transaction
relating to the issuance, exercise or sale of any options or other securities
granted by Counterparty to directors, officers or employees of Counterparty;
and provided  further
that, notwithstanding anything to the contrary contained in this Section 7(x),
Counterparty and any “affiliated purchaser” of Counterparty may directly or indirectly
(including, without limitation, by means of any cash-settled or other
derivative instrument) purchase, offer to purchase, place any bid or limit
order that would effect a purchase of, or commence any tender offer relating
to, any Shares (or an equivalent interest, including a unit of beneficial
interest in a trust or limited partnership or a depository share) or any
security convertible into or exchangeable or exercisable for Shares if
Counterparty notifies Dealer in writing at least five (5) Exchange
Business Days before the commencement of any such event and promptly notifies
Dealer of the completion of any such event. Counterparty acknowledges that any
such event may cause Dealer to exercise its rights under Section 8(a), and
agrees that any such action by Counterparty shall be taken in accordance with
the requirements for the amendment or termination of a “plan” as defined in Rule 10b5-1(c).
Without limiting the generality of the foregoing, any such action shall be made
in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b-5,
and no such action shall be made at any time at which Counterparty or any
officer, director, manager or similar person of Counterparty is aware of any
material non-public information regarding Counterparty or the Shares.


 


(xi)          Except as advised by
Counterparty to Dealer prior to the execution of this Confirmation,
Counterparty has not and will not enter into capped call agreements similar to
the Transaction described herein or any accelerated share buyback, forward
share repurchase, option purchase, cash or net-share settled forward sale or
warrant or other agreements or transactions to directly or indirectly
(including by means of a derivative instrument) purchase any Shares or are
likely to result in any purchases of Shares by a counterparty, where any
initial hedge period, calculation period, relevant period or settlement
valuation period (each however defined) in such other transaction will overlap
at any time (including as a result of extensions in such initial hedge period,
calculation period, relevant period or settlement valuation period as provided
in the relevant agreements) with the Hedge Period or, if the VWAP Price on the
second Exchange Business Day immediately prior to the commencement of the
potential Observation Period for any Relevant Convertible Securities (or any
assumed Observation Period hereunder) or any Unwind Period is greater than 90%
of the Cap Price, the potential Observation Period (or assumed Observation
Period hereunder) for any Relevant Convertible Securities under this
Confirmation without the prior written consent of Dealer; provided
that neither Counterparty nor any “affiliated purchaser” of Counterparty shall
be prohibited from engaging in any transaction relating to the issuance,
exercise or sale of any options or other securities granted by Counterparty to
directors, officers or employees of Counterparty; and provided
further that, notwithstanding anything
to the contrary contained in this Section 7(xi), Counterparty may enter
into any such transaction if Counterparty notifies Dealer in writing at least
five (5) Exchange Business Days before the commencement of any such
initial hedge period, calculation period, relevant period or settlement
valuation period (each however defined) in such other transaction and promptly
notifies Dealer of 


 


19

















 


the
completion of any such initial hedge period, calculation period, relevant
period or settlement valuation period (each however defined) in such other
transaction. Counterparty acknowledges that any such event may cause Dealer to
exercise its rights under Section 8(a), and agrees that any such action by
Counterparty shall be taken in accordance with the requirements for the amendment
or termination of a “plan” as defined in Rule 10b5-1(c). Without limiting
the generality of the foregoing, any such action shall be made in good faith
and not as part of a plan or scheme to evade the prohibitions of Rule 10b-5,
and no such action shall be made at any time at which Counterparty or any
officer, director, manager or similar person of Counterparty is aware of any
material non-public information regarding Counterparty or the Shares.


 


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


 


(c)           Each of Dealer and Counterparty
acknowledges that the offer and sale of the Transaction to it is intended to be
exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”), by virtue of Section 4(2) thereof.  Accordingly, each of Dealer and Counterparty
represents to the other that (i) it has the financial ability to bear the
economic risk of its investment in the Transaction and is able to bear a total
loss of its investment and its investments in and liabilities in respect of the
Transaction, which it understands are not readily marketable, are not
disproportionate to its net worth, and it is able to bear any loss in
connection with the Transaction, including the loss of its entire investment in
the Transaction, (ii) it is an “accredited investor” as that term is
defined in Regulation D as promulgated under the Securities Act, (iii) it
is entering into the Transaction for its own account and without a view to the
distribution or resale thereof, (iv) the assignment, transfer or other
disposition of the Transaction has not been and will not be registered under
the Securities Act and is restricted under this Confirmation, the Securities
Act and state securities laws, and (v) its financial condition is such
that it has no need for liquidity with respect to its investment in the
Transaction and no need to dispose of any portion thereof to satisfy any existing
or contemplated undertaking or indebtedness and is capable of assessing the
merits of and understanding (on its own behalf or through independent
professional advice), and understands and accepts, the terms, conditions and
risks of the Transaction.


 


(d)           Counterparty and Dealer each agree
and acknowledge that it believes Dealer to be a “financial institution,” “swap
participant” and “financial participant” within the meaning of Sections
101(22), 101(53C) and 101(22A) of the Bankruptcy Code.  The parties hereto further agree and
acknowledge that it is the intent of the parties that (A) this
Confirmation is (i) a “securities contract,” as such term is defined in Section 741(7) of
the Bankruptcy Code, with respect to which each payment and delivery hereunder
or in connection herewith is a “termination value,” “payment amount” or “other
transfer obligation” within the meaning of Section 362 of the Bankruptcy
Code and a “settlement payment” within the meaning of Section 546 of the
Bankruptcy Code, and (ii) a “swap agreement,” as such term is defined in Section 101(53B)
of the Bankruptcy Code, with respect to which each payment and delivery
hereunder or in connection herewith is a “termination value,” “payment amount”
or “other transfer obligation” within the meaning of Section 362 of the
Bankruptcy Code and a “transfer” within the meaning of Section 101(54) of
the Bankruptcy Code and a “payment or other transfer of property” within the
meaning of Sections 363 and 546 of the Bankruptcy Code, and (B) Dealer is
entitled to the protections afforded by, among other sections, Sections
362(b)(6), 362(b)(17), 362(b)(27), 362(o), 546(e), 546(g), 546(j), 548(d)(2),
555, 560 and 561 of the Bankruptcy Code.


 


(e)           As a condition to the effectiveness
of the Transaction, Counterparty and Dealer shall each deliver to the other an
incumbency certificate, dated as of the Trade Date, in customary form.


 


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


 


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


 


(h)           Dealer hereby represents and
covenants to Counterparty that it has implemented reasonable policies and
procedures, taking into consideration the nature of its business, to ensure
that


 


20
















 


individuals
making investment decisions related to any Transaction do not have access to
material nonpublic information regarding Issuer that may be in possession of
other individuals at Dealer.


 


(i)                                     Each party
agrees it will look solely to the other party (or any guarantor in respect
thereof) for performance of such other party’s obligations under any
Transaction.


 


(j)                                     To the extent
Dealer is relying on one or both of the Exemptions (as defined in the
Resolutions adopted by the Board of Directors of Counterparty on September 14,
2010), Dealer hereby represents and covenants to Counterparty that it will
comply with the requirements of the Continuing Dealer Covenant as defined in
the Rights Agreement (as defined below), and that if it becomes unable to comply
with the requirements of such Continuing Dealer Covenant, it will promptly
notify the Counterparty.


 


8.  Other Provisions:


 


(a)                                  Right
to Extend.  Dealer may
postpone any Exercise Date or Settlement Date or any other date of valuation or
delivery by Dealer, with respect to some or all of the relevant Options (in
which event the Calculation Agent shall make appropriate adjustments to the
Delivery Obligation to account for the economic effect on the Transaction of
such postponement), if Dealer determines, in its reasonable discretion, that
material liquidity restrictions in the market or, based on the advice of
nationally recognized outside counsel, regulatory restrictions, make it
impracticable or imprudent without such postponement for Dealer to purchase Shares
or Share Termination Delivery Units in the market as reasonably necessary or
appropriate to satisfy its obligations hereunder; provided that (i) if Dealer postpones any such date,
Dealer shall notify Counterparty as promptly as commercially reasonably
practicable of such postponement, and (ii) if as a result of any such
postponement the Settlement Date would be later than the Settlement Date that
would otherwise apply (the “Original
Settlement Date”), then on the Original Settlement Date Dealer shall
(i) pay to Counterparty Dealer’s good faith and commercially reasonable
estimate of the amount of cash, if any, that Dealer will owe to Counterparty on
the Settlement Date and (ii) deliver to Counterparty a number of Shares
equal to the lesser of (A) the number of Shares that would be deliverable
if the date one Settlement Cycle prior to the Original Settlement Date were the
last valuation date for determination of the number of Shares deliverable and (B) the
number of Shares that Dealer or its affiliates then own, if any, in connection
with Dealer’s hedging of the Transaction, and on the Settlement Date the
appropriate party will pay and/or deliver to the other party the difference
between such initial payment and/or delivery and the amount of cash and/or the
number of Shares, in each case if any, ultimately owed by Dealer on the
Settlement Date.


 


(b)                                 Additional
Termination Events.  The
occurrence of (i) an event of default with respect to Counterparty under
the terms of the Convertible Securities as set forth in Section 5.01 of
the Indenture, (ii) an Amendment Event or (iii) an Excluded
Conversion Event shall be an Additional Termination Event with respect to which
the Transaction is the sole Affected Transaction and Counterparty is the sole
Affected Party, and Dealer shall be the party entitled to designate an Early
Termination Date pursuant to Section 6(b) of the Agreement and to
determine the amount payable pursuant to Section 6(e) of the
Agreement; provided that in the case of an Excluded
Conversion Event (A) the Transaction shall be subject to termination only
in respect of a number of Options equal to the number of Convertible Securities
that cease to be outstanding in connection with or as a result of such Excluded
Conversion Event and (B) if Counterparty
disputes Dealer’s determination of the amount payable pursuant to Section 6(e) of
the Agreement, then Counterparty shall have the right to compare such amount as
determined by Dealer (the “Dealer Determined
Amount”) to the corresponding amount[s] determined by the Other
Dealer[s] under the Other Capped Call Transaction[s] (before application of the
provision of such Other Capped Call Transaction[s] corresponding to this clause
(B)) (the “Other Dealer Determined Amount[s]”
and, together with the Dealer Determined Amount, the “Determined Amounts”). If the Dealer
Determined Amount is more than 1% less than the weighted average of the
Determined Amounts (with such weighting based on the “Applicable Percentage”
applicable to this Transaction and such Other Capped Call Transaction[s]), then
the amount payable pursuant to Section 6(a) of the Agreement shall be
1% less than such weighted average. “Other
Dealer” means Counterparty’s counterparty in relation to [an][the]
Other Capped Call Transaction. “Other Capped
Call Transaction” means a transaction entered into by Counterparty
on the date hereof with terms substantially identical to those of the
Transaction, except that 


 


21

















 


the “Applicable Percentage” specified therein need not be
same as the Applicable Percentage for the Transaction. For the
avoidance of doubt, in determining the amount payable in respect of such
Affected Transaction pursuant to Section 6 of the Agreement in connection
with an Excluded Conversion Event, the Calculation Agent shall assume that (x) the
relevant Excluded Convertible Securities shall not have been converted and
remain outstanding, and (y) in the case of an Induced Conversion, any
adjustments, agreements, additional payments, deliveries or acquisitions by or
on behalf of Counterparty or any affiliate of Counterparty in connection
therewith had not occurred.


 


“Amendment Event” means that Counterparty amends, modifies,
supplements or obtains a waiver in respect of any term of the Indenture or the
Convertible Securities with respect to matters specified in Section 9.02
of the Indenture, in each case, without the consent of Dealer, such consent not
be unreasonably withheld or delayed.


 


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


 


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


 


(c)                                  Alternative
Calculations and Payment on Early Termination and on Certain Extraordinary
Events.  If Dealer shall owe
Counterparty any amount pursuant to Section 12.2 of the Equity Definitions
or “Consequences of Merger Events” above, or Sections 12.6, 12.7 or 12.9 of the
Equity Definitions or pursuant to Section 6(d)(ii) of the Agreement
(a “Payment Obligation”), Dealer shall have
the right, in its sole discretion exercised in good faith, to satisfy any such
Payment Obligation by the Share Termination Alternative (as defined below) (a “Dealer Share Termination”). 
In addition, in the case of a Payment Obligation arising as a result of
an Excluded Conversion Event, Counterparty shall have the right, in its sole
discretion exercised in good faith, to require Dealer to satisfy such Payment
Obligation by the Share Termination Alternative (a “Counterparty
Share Termination”) by giving irrevocable written notice to Dealer
at the time Counterparty notifies Dealer of such Excluded Conversion Event:


 


	
  Share
  Termination Alternative:

  	
   

  	
  Means
  that Dealer shall deliver to Counterparty the Share Termination Delivery
  Property on the date on which the Payment Obligation would otherwise be due
  pursuant to “Consequences of Merger Events” above or Sections 12.2, 12.6,
  12.7 or 12.9 of the Equity Definitions or Section 6(d)(ii) of the
  Agreement (the “Share Termination
  Payment Date”), in satisfaction of the Payment Obligation; provided that in the case
  of a Counterparty Share Termination, Dealer may make such delivery within one
  Settlement Cycle following the end of a period selected by Dealer in a
  commercially reasonable manner (an “Unwind
  Period”). Within two Exchange Business Days of the commencement of
  any Unwind Period, Dealer shall notify Counterparty of Dealer’s nonbinding
  estimate of the expected length of such Unwind Period. Within two Exchange
  Business Days of completion of any Unwind Period, Dealer shall notify
  Counterparty of such completion.

  
	
   

  	
   

  	
   

  
	
  Share
  Termination Delivery Property:

  	
   

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

  



 


22

















 


	
   

  	
   

  	
  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 at the time of delivery thereof or, in
  the case of a Counterparty Share Termination in which Dealer selects and
  Unwind Period, during such Unwind Period.

  
	
   

  	
   

  	
   

  
	
  Share
  Termination Delivery Unit:

  	
   

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

  
	
   

  	
   

  	
   

  
	
  Failure
  to Deliver:

  	
   

  	
  Applicable

  
	
   

  	
   

  	
   

  
	
  Other
  Applicable Provisions:

  	
   

  	
  If
  Share Termination Alternative is applicable, the provisions of Sections 9.8,
  9.9 and 9.11 of the Equity Definitions will be applicable as if “Physical
  Settlement” applied to the Transaction, except that all references to
  “Shares” shall be read as references to “Share Termination Delivery Units”; provided that the Representation and Agreement contained
  in Section 9.11 of the Equity Definitions shall be modified by excluding
  any representations therein relating to restrictions, obligations,
  limitations or requirements under applicable securities laws as a result of
  the fact that Counterparty is the issuer of any Share Termination Delivery
  Units (or any part thereof).

  



 


(d)                                 Disposition
of Hedge Shares. 
Counterparty hereby agrees that if, in the good faith commercially
reasonable judgment of Dealer based on the advice of nationally recognized
outside counsel, the Shares (the “Hedge
Shares”) acquired by Dealer for the purpose of hedging its
obligations pursuant to the Transaction cannot be sold by Dealer without registration
under the Securities Act (including for the avoidance of doubt pursuant to
Regulation S under the Securities Act) in the U.S. public market or, if a
non-U.S. market has sufficient liquidity as determined by the Calculation
Agent, in such non-U.S. market provided that there are no material additional
costs or restrictions with respect to selling such Hedge Shares in such
non-U.S. market, Counterparty shall, at its election: (i) in order to
allow Dealer to sell the Hedge Shares in a registered offering, make available
to Dealer an effective registration statement under the Securities Act to cover
the resale of such Hedge Shares and (A) enter into an agreement, in form
and substance satisfactory to Dealer, substantially in the form of an
underwriting agreement for a registered offering, (B) provide accountant’s
“comfort” letters in customary form for registered offerings of equity
securities, (C) provide disclosure opinions of nationally recognized
outside counsel to Counterparty reasonably acceptable to Dealer, (D) provide
other customary opinions, certificates and closing documents customary in form
for registered offerings of equity securities and (E) afford Dealer a
reasonable opportunity to conduct a “due diligence” investigation with respect
to Counterparty customary in scope for underwritten offerings of equity
securities; provided, however, that if Counterparty
elects clause (i) above but the items referred to therein are not
completed in a timely manner, or if Dealer, in its sole commercially reasonable
discretion, is not satisfied with access to due diligence materials, the
results of its due diligence investigation, or the procedures and documentation
for the registered offering referred to above, then clause (ii) or clause (iii) of
this Section 8(d) shall apply at the election of Counterparty; (ii) in
order to allow Dealer to sell the Hedge Shares in a private placement, enter
into a private placement agreement substantially similar to private placement
purchase agreements customary for private placements of equity securities, in
form and substance satisfactory to Dealer, including customary representations,
covenants, blue sky and other governmental filings and/or registrations,
indemnities to Dealer, due diligence rights (for Dealer or any designated buyer
of the Hedge Shares from Dealer), opinions and certificates and such other 


 


23

















 


documentation
as is customary for private placements agreements, all reasonably acceptable to
Dealer (in which case, the Calculation Agent shall make any adjustments to the
terms of the Transaction that are necessary, in its reasonable judgment, to
compensate Dealer for any discount from the public market price of the Shares
incurred on the sale of Hedge Shares in a private placement); or (iii) purchase
the Hedge Shares from Dealer at the VWAP Price on such Exchange Business Days,
and in the amounts, requested by Dealer. 
This Section 8(d) shall survive the termination, expiration or
early unwind of the Transaction.


 


(e)                                  Repurchase
and Conversion Rate Adjustment Notices.  Counterparty shall not effect any repurchase
of Shares or consummate any transaction or event (a “Conversion
Rate Adjustment Event”) that would increase the Conversion Rate,
unless Counterparty shall have given Dealer at least two Exchange Business Days’
prior written notice of its intention to effect such repurchase, which
intention can be stated in terms of a maximum number of Shares to be
repurchased over a specified period (e.g., a specified maximum number to be
purchased over a quarterly period), or Conversion Rate Adjustment Event (a “Repurchase Notice”) on such day if, following such
repurchase or Conversion Rate Adjustment Event, the Notice Percentage would
reasonably be expected to be (i) greater than 4.5% and (ii) greater
by 0.5% than the Notice Percentage included in the immediately preceding
Repurchase Notice (or, in the case of the first such Repurchase Notice, greater
than the Notice Percentage as of the date hereof), and, if such repurchase or
Conversion Rate Adjustment Event would constitute material non-public
information with respect to Counterparty or the Shares, Counterparty shall have
made public disclosure thereof at or prior to delivery of such Repurchase
Notice.  The “Notice
Percentage” as of any day is the fraction, expressed as a
percentage, the numerator of which is the Number of Shares and the denominator
of which is the number of Shares outstanding on such day.  Except as Counterparty otherwise notifies
Dealer, Dealer shall be deemed to have been given a Repurchase Notice with the
filing of each Form 10-Q or 10-K by Counterparty with it assumed that
Counterparty would purchase 4% of the outstanding Shares until the next such
filing.  If Counterparty notifies Dealer
of its intention to repurchase a number of Shares, or up to a maximum number of
Shares, in the future pursuant to this Section 8(e), the maximum number of
Shares will be deemed to have been repurchased as of the date of such notice
for purposes of determining whether an Excess Ownership Position (as defined
below) exists.


 


(f)                                     Transfer
and Assignment.  Either
party may transfer or assign any of its rights or obligations under the
Transaction with the prior written consent of the non-transferring party, such
consent not to be unreasonably withheld or delayed; provided
that Dealer may transfer or assign, without any consent of Counterparty, its
rights and obligations hereunder and under the Agreement, in whole or in part,
to any of its affiliates, in each case whose obligations hereunder are
guaranteed by Dealer or Dealer’s guarantor hereunder, but only if (i) Counterparty
will not be required to pay to the assignee an amount in respect of an
Indemnifiable Tax under Section 2(d)(i)(4) of the Agreement (except
in respect of Interest under Section 2(e), 6(d)(ii) or 6(e) of
the Agreement) greater than the amount in respect of which Counterparty would
have been required to pay to Dealer in the absence of such assignment; (ii) Counterparty
will not receive a payment from which an amount has been withheld or deducted,
on account of a Tax under Section 2(d)(i) of the Agreement (except in
respect of interest under Section 2(d), 6(d)(ii) or 6(e) of the
Agreement), in excess of that which Dealer would have been required to so
withhold or deduct in the absence of such assignment, unless the assignee will
be required to make additional payments pursuant to Section 2(d)(i)(4) of
the Agreement in respect of such excess; (iii) immediately upon giving
effect to such transfer, no Event of Default, no Potential Event of Default and
no Termination Event will have occurred as a result thereof; and (iv) Dealer
shall have caused the transferee to make such Payee Tax Representations and to
provide such tax documentation as may be reasonably requested by Counterparty
to permit Counterparty to determine that results described in clauses (i) and
(ii) will not occur upon or after such transfer and assignment. If at any
time at which (1) the Equity Percentage exceeds 9.0% or (2) Dealer,
Dealer Group (as defined below) or any person whose ownership position would be
aggregated with that of Dealer or Dealer Group (Dealer, Dealer Group or any
such person, a “Dealer Person”) under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, the Bank
Holding Company Act of 1956, as amended, or any other federal, state or local
(including non-U.S.) law, regulations or regulatory orders applicable to
ownership of Shares that (A) are enacted or promulgated after the Trade
Date, (B) apply to Counterparty by reason of Counterparty’s particular
business or (C) apply to Counterparty by reason of Counterparty doing
business in a particular non-U.S. jurisdiction or jurisdictions or, if the
Resolutions adopted by the Board of Directors of Counterparty on September 14,
2010 are modified in any way or the Amendment dated as of September 14,
2010 to the Rights Agreement dated as of March 25, 2004 between 


 


24

















 


Counterparty
and The Bank of New York, as amended (the “Rights Agreement”)
is amended or modified in any way, under Section 203 of the Delaware
General Corporate Law or under the Rights Agreement as amended (“Applicable Ownership Provisions”), owns, beneficially owns,
constructively owns, controls, holds the power to vote or otherwise meets a
relevant definition of ownership in excess of a number of Shares equal to (x) the
number of Shares or any Hedge Positions that would give rise to reporting,
registration, filing or notification obligations or other requirements (including
obtaining prior approval by a state or federal regulator) of a Dealer Person
under Applicable Ownership Provisions and with respect to which such
requirements have not been met or the relevant approval has not been received
(or, in the case that the Rights Agreement constitutes an Applicable Ownership
Provision, cause a Dealer Person to become an Acquiring Person under, and as
defined in, the Rights Agreement) minus (y) 1%
of the number of Shares outstanding on the date of determination (either such condition
described in clause (1) or (2), an “Excess Ownership Position”),
Dealer is unable to effect a transfer or assignment to a third party after its
commercially reasonable efforts on pricing and terms and within a time period
reasonably acceptable to Dealer such that an Excess Ownership Position no
longer exists, Dealer may designate any Scheduled Trading Day as an Early
Termination Date with respect to a portion (the “Terminated
Portion”) of the Transaction, such that an Excess Ownership Position
no longer exists following such partial termination.  In the event that Dealer so designates an
Early Termination Date with respect to a portion of the Transaction, a payment
or delivery shall be made pursuant to Section 6 of the Agreement and Section 8(c) of
this Confirmation as if (i) an Early Termination Date had been designated
in respect of a Transaction having terms identical to the Terminated Portion of
the Transaction, (ii) Counterparty were the sole Affected Party with
respect to such partial termination (except that if the Excess Ownership
Position arose as a result of holdings by Dealer or its affiliates unrelated to
the Transaction or the hedging thereof, then Dealer and Counterparty shall both
be treated as Affected Parties), (iii) such portion of the Transaction
were the only Terminated Transaction and (iv) Dealer were the party
entitled to designate an Early Termination Date pursuant to Section 6(b) of
the Agreement and to determine the amount payable pursuant to Section 6(e) of
the Agreement.  The “Equity
Percentage” as of any day is the fraction, expressed as a
percentage, (A) the numerator of which is the number of Shares that Dealer
and any of its affiliates subject to aggregation with Dealer for purposes of
the “beneficial ownership” test under Section 13 of the Exchange Act and
all persons who may form a “group” (within the meaning of Rule 13d-5(b)(1) under
the Exchange Act) with Dealer (collectively, “Dealer Group”)
“beneficially own” (within the meaning of Section 13 of the Exchange Act)
without duplication on such day and (B) the denominator of which is the
number of Shares outstanding on such day.


 


In
the case of a transfer or assignment by Counterparty of its rights and
obligations hereunder and under the Agreement, in whole or in part (any such
Options so transferred or assigned, the “Transfer Options”),
to any party, withholding of such consent by Dealer shall not be considered
unreasonable if such transfer or assignment does not meet the reasonable
conditions that Dealer may impose including, but not limited, to the following
conditions:


 


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


 


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


 


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


 


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


 


25

















 


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


 


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


 


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


 


Any
purported transfer or assignment by either party that is not in compliance with
this Section 8(f) will be void.


 


(g)                                 Staggered
Settlement. Dealer may, by written notice to Counterparty
(including by e-mail) prior to any Settlement Date (a “Nominal Settlement Date”), elect to deliver
the Shares on one or more dates (each, a “Staggered
Settlement Date”) or at two or more times on the Nominal Settlement
Date as follows:


 


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


 


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


 


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


 


(i)                                     Set-off.   The parties agree to amend Section 6 of
the Agreement by adding a new Section 6(f) thereto as follows:


 


“(f)  Upon the occurrence of an Event of Default or Termination
Event with respect to a party who is the Defaulting Party or the sole Affected
Party (“X”), the other party (“Y”) will have the right (but not be obliged)
without prior notice to X or any other person to set-off or apply any
obligation of X owed to Y (or any Affiliate of Y) (whether or not matured or
contingent and whether or not arising under the Agreement, and regardless of
the currency, place of payment or booking office of the obligation) against any
obligation of Y (or any Affiliate of Y) owed to X (whether or not matured or
contingent and whether or not arising under the Agreement, and regardless of
the currency, place of payment or booking office of the obligation), to the
extent permitted by applicable law.  Y
will promptly give notice to the other party of any set-off or application of
obligations effected under this Section 6(f).


 


Amounts (or the relevant portion of such amounts) subject to set-off or
application of obligations under this Section 6(f) may be converted
by Y into the Termination Currency at the rate of exchange at which such party
would be able, acting in a reasonable manner and in good faith, to purchase the
relevant amount of such currency.  If any
obligation is unascertained, Y may in good faith and in a commercially
reasonable manner estimate that obligation and set-off (or apply) in respect of
the estimate, subject to the relevant party accounting to the other when the
obligation is ascertained.  Nothing in
this Section 6(f) shall be effective to create a charge or other
security interest.  This Section 6(f) shall
be without prejudice and in addition to any right of set-off, combination of
accounts, lien


 


26

















 


or other right to which any party is at any time otherwise entitled
(whether by operation of law, contract or otherwise).”


 


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


 


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


 


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


 


(m)       Adjustments.  For the avoidance of doubt, whenever the
Calculation Agent is called upon to make an adjustment pursuant to the terms of
this Confirmation or the Definitions to take into account the effect of an
event, the Calculation Agent shall make such adjustment by reference to the
effect of such event on the Hedging Party, assuming that the Hedging Party
maintains a commercially reasonable hedge position.  The Calculation Agent shall, as soon as
reasonably practicable, notify Counterparty in writing of any adjustment to the
Strike Price, Number of Options, Option Entitlement and/or any other variable
relevant to the exercise, settlement, payment or other terms of the
Transaction, and in any event will use commercially reasonable efforts to do so
within three (3) Exchange Business Days.


 


9.               General
Obligations Law of New York.  (i) This Confirmation, as supplemented
by the Trade Notification, is a “qualified financial contract”, as such term is
defined in Section 5-701(b)(2) of the General Obligations Law of New
York (the “General Obligations Law”); (ii) such
Trade Notification constitutes a “confirmation in writing sufficient to
indicate that a contract has been made between the parties” hereto, as set
forth in Section 5-701(b)(3)(b) of the General Obligations Law; and (iii) this
Confirmation constitutes a prior “written contract” as set forth in Section 5-701(b)(1)(b) of
the General Obligations Law, and each party hereto intends and agrees to be
bound by this Confirmation as supplemented by the Trade Notification.


 


10.       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 any Transaction.
Each party (i) certifies that no representative, agent
or attorney of the other 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 any Transaction
hereunder by, among other things, the mutual waivers and certifications
provided herein.


 


11.       Submission
to Jurisdiction.  Section 13(b) of
the Agreement is deleted in its entirety and replaced by the following:


 


“Each
party hereby irrevocably and unconditionally submits for itself and its
property in any suit, legal action or proceeding relating to this Agreement
and/or any Transaction, or for recognition and enforcement of any judgment in
respect thereof, (each, “Proceedings”) to the exclusive jurisdiction of the
Supreme Court of the State of New York, sitting in New York County, the courts
of the United States of America for the Southern District of New York and
appellate courts from any thereof.  Nothing
in this Confirmation, any Trade Notification or this Agreement precludes either
party from bringing Proceedings in any other jurisdiction if (A) the
courts of the State of New York or the United States of America for the
Southern District of New York lack jurisdiction over the parties or the subject
matter of the Proceedings or declines to accept the Proceedings on the grounds
of lacking such jurisdiction; (B) the Proceedings are commenced by a party
for the purpose of enforcing against the other party’s property, assets or
estate any decision or judgment rendered by any court in which Proceedings may
be brought as provided hereunder; (C) the Proceedings are commenced to
appeal any such court’s decision or judgment to any higher court with competent
appellate jurisdiction over that court’s decisions or judgments if that higher
court is located outside the State of New York or Borough of Manhattan, such as
a federal court of appeals or 


 


27

















 


the
U.S. Supreme Court; or (D) any suit, action or proceeding has been
commenced in another jurisdiction by or against the other party or against its
property, assets or estate and, in order to exercise or protect its rights,
interests or remedies under the Agreement, this Confirmation or any Trade
Notification, the party (1) joins, files a claim, or takes any other
action, in any such suit, action or proceeding, or (2) otherwise commences
any Proceeding in that other jurisdiction as the result of that other suit,
action or proceeding having commenced in that other jurisdiction.”


 


28

















 


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


 


 


	
   

  	
  Yours
  faithfully,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [DEALER]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Agreed
  and Accepted By:

  	
   

  
	
   

  	
   

  
	
  VIRGIN
  MEDIA INC.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


SCHEDULE A


 


TRADE NOTIFICATION


 


	
  To:

  	
   

  	
  Virgin Media Inc.

  
	
   

  	
   

  	
  909 Third Avenue, Suite 2863

  
	
   

  	
   

  	
  New York, New York 10022

  
	
   

  	
   

  	
   

  
	
  From:

  	
   

  	
  [Dealer]

  
	
   

  	
   

  	
   

  
	
  Subject:

  	
   

  	
  Capped
  Call Transaction

  
	
   

  	
   

  	
   

  
	
  Ref.
  No:

  	
   

  	
  [Insert
  Reference No.]

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
  [Insert
  Date]

  



 


The
purpose of this Trade Notification is to notify you of certain terms in the
Transaction entered into between [Dealer] [,
represented by [         ] (the “Agent”) as its agent,](7) and Virgin Media Inc.
(together, the “Contracting Parties”) bearing the
trade reference number set forth above.


 


This
Trade Notification supplements, forms part of, and is subject to the
Confirmation dated as of  [Insert Date of Confirmation]
between the Contracting Parties, as amended and supplemented from time to time.


 


	
  Hedge
  Period Reference Price:

  	
   

  	
  USD
  [        ]

  
	
  Premium:

  	
   

  	
  USD
  [        ]

  
	
  Additional
  Premium:

  	
   

  	
  USD [           
  ]

  
	
  Additional
  Premium Payment Date:

  	
   

  	
  [                 ]

  



 


 


	
   

  	
  Yours
  sincerely,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [DEALER]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  



 






(7) 
Delete if not applicable to Dealer


 


A-1

















 


SCHEDULE B


 




	
  Hedge Period Reference Price

  	
   

  	
  Premium

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  






 


B-1