Capped Call Confirmation between Deutsche Bank and BGC Partners



 Exhibit 10.2 
 



 
  

			
	 	  	July 25, 2011
		
	 To:
	  	BGC Partners, Inc.
		  	110 East 59th Street
		  	New York, NY 10022
		  	Attn: Stephen Merkel, General Counsel
		  	Telephone: 212-829-4829
		  	Facsimile: 212-829-4708
		
	 From:
	  	Deutsche Bank AG, London Branch
		  	Winchester House
		  	1 Great Winchester Street
		  	London EC2N 2DB
		  	Telephone: 44 20 7545 8000
		
		  	c/o Deutsche Bank Securities Inc.
		  	60 Wall Street
		  	New York, NY 10005
		  	Telephone: 1-212-250-2500
		
	Re:	  	Base Capped Call Transaction
		  	(Transaction Reference Number: 445954)

 Ladies and Gentlemen: 
 The purpose of this communication (this “Confirmation”) is to set forth the terms and conditions of the above-referenced transaction entered into on the Trade Date specified below (the
“Transaction”) between Deutsche Bank AG, London Branch (“Dealer”), with Deutsche Bank Securities Inc. (“DBSI”) as agent, and BGC Partners, Inc. (“Counterparty”). This communication
constitutes a “Confirmation” as referred to in the ISDA Master Agreement specified below. 
 DEUTSCHE BANK AG IS
NOT REGISTERED AS A BROKER OR DEALER UNDER THE U.S. SECURITIES EXCHANGE ACT OF 1934. DBSI HAS ACTED SOLELY AS AGENT IN CONNECTION WITH THE TRANSACTION GOVERNED BY THIS CONFIRMATION AND HAS NO OBLIGATION, BY WAY OF ISSUANCE, ENDORSEMENT, GUARANTEE OR
OTHERWISE WITH RESPECT TO THE PERFORMANCE OF EITHER PARTY UNDER SUCH TRANSACTION. DEUTSCHE BANK AG, LONDON BRANCH IS NOT A MEMBER OF THE SECURITIES INVESTOR PROTECTION CORPORATION (SIPC). 

1. This Confirmation is subject to, and incorporates, the definitions and provisions of the 2006 ISDA Definitions (including the Annex
thereto) (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 to be dated as of the closing date for the initial issuance of the Convertible Securities described below between Counterparty and U.S.
Bank, National Association as trustee (the “Indenture”) relating to the USD135,000,000 principal amount of 4.50% convertible senior notes due 2016 (the “Convertible Securities”). In the event of any inconsistency
between the terms defined in the Indenture and this Confirmation, this Confirmation shall govern. For the avoidance of doubt, references herein to sections of the Indenture are based on the draft of the Indenture most recently reviewed by the
parties at the time of execution of this Confirmation. If any relevant sections of the Indenture are changed, added or renumbered following execution of this Confirmation but prior to the execution of the Indenture, the parties will amend this
Confirmation in good faith to preserve the economic intent of the parties based on the draft of the Indenture so reviewed. The parties further acknowledge that references to the Indenture herein are references to the Indenture as in effect on the
date of its execution and if the Indenture is amended following its execution, any such amendment will be disregarded for purposes of this Confirmation (other than as provided in Section 8(a) below) unless the parties agree otherwise in
writing. 

  
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 This Confirmation evidences a complete and binding agreement between Dealer and Counterparty
as to the terms of the Transaction to which this Confirmation relates. This Confirmation shall be subject to an agreement (the “Agreement”) in the form of the 1992 ISDA Master Agreement (Multicurrency Cross Border) (the
“ISDA Form”) as if Dealer and Counterparty had executed an agreement in such form (without any Schedule but with the elections set forth in this Confirmation). For the avoidance of doubt, the Transaction shall be the only
transaction under the Agreement. 
 All provisions contained in, or incorporated by reference to, the Agreement will govern this
Confirmation except as expressly modified herein. In the event of any inconsistency between this Confirmation and either the Definitions or the Agreement, this Confirmation shall govern. 

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

 

			
	 Trade Date:
	  	July 25, 2011
		
	 Effective Date:
	  	The closing date of the initial issuance of the Convertible Securities.
		
	 Option Type:
	  	Call
		
	 Seller:
	  	Dealer
		
	 Buyer:
	  	Counterparty
		
	 Shares:
	  	The Class A common stock of Counterparty, par value USD0.01 per share (Ticker Symbol: “BGCP”).
		
	 Number of Options:
	  	The number of Convertible Securities, other than Option Securities (as defined in the Purchase Agreement (as defined below)), in denominations of USD1,000 principal amount issued
by Counterparty to the Initial Purchasers (as defined below) on the closing date for the initial issuance of the Convertible Securities.
		
	 Number of Shares:
	  	As of any date, the product of the Number of Options, the Conversion Rate and the Applicable Percentage.
		
	 Conversion Rate:
	  	As of any date, the “Conversion Rate” (as defined in the Indenture) as of such date, but without regard to any adjustments to the “Conversion Rate” pursuant
to Sections 4.04, 4.05(g) or 4.05(h) of the Indenture.
		
	 Applicable Percentage:
	  	60%
		
	 Strike Price:
	  	The “Conversion Price” (as defined in the Indenture, but without regard to any adjustments to the “Conversion Rate” (as defined in the Indenture)) pursuant to
Sections 4.04, 4.05(g) or 4.05(h) of the Indenture.
		
	 Cap Price:
	  	As provided in Annex A to this Confirmation.
		
	 Premium:
	  	As provided in Annex A to this Confirmation.
		
	 Premium Payment Date:
	  	The Effective Date
		
	 Exchange:
	  	The Nasdaq Global Select Market
		
	 Related Exchange:
	  	All Exchanges


  
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 Procedures for Exercise: 
  

			
	 Exercise Dates:
	  	Each Conversion Date.
		
	 Conversion Date:
	  	Each “Conversion Date”, as defined in the Indenture, occurring during the period from and excluding the Trade Date to and including the Expiration Date, for Convertible
Securities, each in denominations of USD1,000 principal amount, that are submitted for conversion on such Conversion Date in accordance with the terms of the Indenture, excluding Convertible Securities that are Excluded Convertible Securities (such
Convertible Securities, other than those excluded as set forth above, the “Relevant Convertible Securities” for such Conversion Date).
		
	 Excluded Convertible Securities:
	  	Convertible Securities surrendered for conversion on any date prior to February 1, 2016. Counterparty shall, within one Scheduled Trading Day of the “Conversion Date”
(as defined in the Indenture) relating to any Excluded Convertible Securities, provide notice in writing or by email (with confirmation of receipt by Dealer) prior to 4:00 PM New York City time to Dealer specifying the number of Excluded Convertible
Securities converted on such “Conversion Date”.
		
	 Required Exercise on Conversion Dates:
	  	On each Conversion Date, a number of Options equal to the number of Relevant Convertible Securities for such Conversion Date in denominations of USD1,000 principal amount shall
be automatically exercised.
		
	 Expiration Date:
	  	The second “Scheduled Trading Day” immediately preceding the “Maturity Date” (each as defined in the Indenture).
		
	 Automatic Exercise:
	  	As provided above under “Required Exercise on Conversion Dates”.
		
	 Exercise Notice Deadline:
	  	In respect of any exercise of Options hereunder on any Conversion Date, the Exchange Business Day immediately following such Conversion Date.
		
	 Notice of Exercise:
	  	Notwithstanding anything to the contrary in the Equity Definitions, Dealer shall have no obligation to make any payment or delivery in respect of any exercise of Options
hereunder unless Counterparty notifies Dealer in writing or by email (with confirmation of receipt by Dealer) prior to 4:00 PM, New York City time, on the Exercise Notice Deadline in respect of such exercise of the number of Options being exercised
on the relevant Exercise Date. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect
of any election of a settlement method with respect to the Convertible Securities. For the avoidance of doubt, if Counterparty fails to give such notice when due in respect of any exercise of Options hereunder, Dealer’s obligation to make any
payment or delivery in respect of such exercise shall be permanently extinguished, and late notice shall not cure such failure; provided that notwithstanding the foregoing, such notice (and the related exercise of Options) shall be effective
if given after the Exercise Notice Deadline, but prior to 4:00 PM, New York City time, on the fifth Exchange Business Day following the


  
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		  	Exercise Notice Deadline, 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 expenses incurred by Dealer in connection with its hedging activities (including the unwinding of any hedge position) as a result of Dealer’s not having received such notice on or
prior to the Exercise Notice Deadline.
		
	 Notice of Convertible Security Settlement Method:
	  	Counterparty shall notify Dealer in writing or by email (with confirmation of receipt by Dealer) before 4:00 P.M. (New York City time) on the “Scheduled Trading Day”
(as defined in the Indenture) immediately prior to February 1, 2016 of the irrevocable election by the Counterparty, in accordance with Section 4.03(c) 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 February 1, 2016. If Counterparty fails timely to provide such notice, Counterparty shall be deemed to have
notified Dealer of settlement with solely Shares for all conversions occurring on or after February 1. 2016. Counterparty agrees that it shall settle any Relevant Convertible Securities with a Conversion Date occurring on or after February 1, 2016
in the same manner as provided in the Notice of Convertible Security Settlement Method it provides or is deemed to have provided hereunder.
		
	 Dealer’s Telephone Number and Telex and/or Facsimile Number and Contact Details for purpose of Giving Notice:
	  	To be provided by Dealer.
		
	 Settlement Terms:
	  	
		
	 Settlement Date:
	  	In respect of an Exercise Date occurring on a Conversion Date, the settlement date for the cash and Shares (if any) to be delivered in respect of the Relevant Convertible
Securities converted on such Conversion Date pursuant to Section 4.03(d) of the Indenture; provided that the Settlement Date will not be prior to the latest of (i) the date one Settlement Cycle following the final day of the relevant
“Cash Settlement Averaging Period” (as defined in the Indenture), (ii) the date one Settlement Cycle following the date on which Counterparty gives notice to Dealer of such Settlement Date prior to 4:00 PM, New York City time, and (iii)
the date one Settlement Cycle immediately following the date Counterparty provides the Notice of Delivery Obligation prior to 4:00 PM, New York City time.
		
	 Delivery Obligation:
	  	In lieu of the obligations set forth in Sections 8.1 and 9.1 of the Equity Definitions, and subject to “Notice of Exercise” above and “Dividends” (under
“Share Adjustments”) below, in respect of an Exercise Date occurring on a Conversion Date, Dealer will deliver to Counterparty, on the related Settlement Date, the Applicable Percentage of a number of Shares and/or amount of cash in USD
equal to the aggregate number of 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 4.03(b) of the Indenture and/or the
aggregate


  
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		  	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 4.03(b) of the Indenture (except that such aggregate number of Shares shall be determined without taking into consideration any rounding pursuant to Section 4.03(f) of the Indenture and shall be rounded down to the nearest whole number) and
cash in lieu of fractional Shares, if any, resulting from such rounding, 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 of such Convertible Securities (the “Convertible Obligation”); provided that (i) if the Convertible Obligation exceeds the Capped
Convertible Obligation, then the Delivery Obligation shall be the Capped Convertible Obligation; (ii) the Convertible Obligation (and, for the avoidance of doubt, the Capped Convertible Obligation) shall be determined excluding any Shares and/or
cash that Counterparty is obligated to deliver to holder(s) of the Relevant Convertible Securities as a result of any adjustments to the “Conversion Rate” pursuant to Sections 4.04, 4.05(g) or 4.05(h) of the Indenture (and, for the
avoidance of doubt, the Delivery Obligation shall not include any interest payment on the Relevant Convertible Securities that the Counterparty is (or would have been) obligated to deliver to holder(s) of the Relevant Convertible Securities for such
Conversion Date); and (iii) if such exercise relates to the conversion of Relevant Convertible Securities in connection with which holders thereof are entitled to receive additional Shares and/or cash pursuant to an adjustment to the
“Conversion Rate” set forth in Section 4.04 of the Indenture, then, notwithstanding the foregoing, the Delivery Obligation shall include the Applicable Percentage of such additional Shares and/or cash, except that the Delivery Obligation
shall be capped so that the value of the Delivery Obligation per Option (with the value of any Shares included in the Delivery Obligation determined by the Calculation Agent using the VWAP Price on the last day of the relevant “Cash Settlement
Averaging Period”) does not exceed the amount as determined by the Calculation Agent that would be payable by Dealer pursuant to Section 6 of the Agreement if such Conversion Date were an Early Termination Date resulting from an Additional
Termination Event with respect to which the Transaction (except that, for purposes of determining such amount (x) the Number of Options shall be deemed to be equal to the number of Options exercised on such Exercise Date and (y) such amount payable
will be determined as if Section 4.04 of the Indenture were deleted) was the sole Affected Transaction and Counterparty was the sole Affected Party (determined without regard to Section 8(b) of this Confirmation), it being understood that the cap
described in this clause (iii) is in addition to, and cumulative with, clauses (i) and (ii) of this proviso. Notwithstanding the foregoing, and in addition to the caps described in clauses (i), (ii) and (iii) of the proviso to the preceding
sentence, in all events the Delivery Obligation shall be capped so that the value of the Delivery Obligation does not exceed the value of the Convertible Obligation (with the Convertible Obligation determined, for the sole purpose
of


  
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		  	determining this cap, based on the actual settlement method elected by Counterparty with respect to such Relevant Convertible Securities instead of the Convertible Security
Settlement Method and with the value of any Shares included in either the Delivery Obligation or such Convertible Obligation determined by the Calculation Agent using the VWAP Price on the last day of the relevant “Cash Settlement Averaging
Period”).
		
	 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 “Trading Day” in the
“Cash Settlement Averaging Period” (each as defined in the Indenture) or, if applicable, the assumed “Cash Settlement Averaging Period” specified in clause (ii) of “Convertible Security Settlement Method” below, were
the lesser of (x) the Cap Price and (y) the actual “Daily VWAP” for such “Trading Day”.
		
	 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 4.03(c) 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 (and any related Delivery Obligation) shall (i) assume Counterparty 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 and (ii) be calculated as if the relevant “Cash Settlement Averaging Period” (as defined in the Indenture) pursuant to Section 4.03(b) of the Indenture consisted of 70 “Trading Days” (as defined in
the Indenture) commencing on the 72nd “Scheduled Trading Day” prior to the “Maturity Date” (each as defined in the Indenture), with the “Daily Conversion Value”, “Daily Measurement Value”, “Daily
Settlement Amount” (each as defined in the Indenture) and related terms adjusted accordingly.
		
	 Notice of Delivery Obligation:
	  	No later than the Exchange Business Day immediately following the last day of the relevant “Cash Settlement Averaging Period”, Counterparty shall give Dealer notice of
the aggregate number of Shares and/or cash comprising the Convertible Obligations for all Relevant Convertible Securities (it being understood, for the avoidance of doubt, that the requirement of Counterparty to deliver such notice shall not limit
Counterparty’s obligations with respect to Notice of Exercise or Notice of Convertible Security Settlement Method or Dealer’s obligations with respect to Delivery Obligation, each as set forth above, in any way).
		
	 Other Applicable Provisions:
	  	To the extent Dealer is obligated to deliver Shares hereunder, the provisions of Sections 9.1(c), 9.8, 9.9, 9.10, and 9.11 (except that the Representation and Agreement contained
in Section 9.11 of the Equity Definitions shall be modified by excluding any representations therein relating to restrictions, obligations, limitations or requirements under applicable securities laws arising as a result of the fact that
Counterparty is the Issuer of the Shares) of the Equity Definitions will be applicable as if “Physical Settlement” applied to the Transaction.


  
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	 Restricted Certificated Shares:
	  	Notwithstanding anything to the contrary in the Equity Definitions, Dealer may, in whole or in part, deliver Shares required to be delivered to Counterparty hereunder in
certificated form in lieu of delivery through the Clearance System. With respect to such certificated Shares, the Representation and Agreement contained in Section 9.11 of the Equity Definitions shall be modified by deleting the remainder of the
provision after the word “encumbrance” in the fourth line thereof.
		
	Share Adjustments:	  	
		
	 Method of Adjustment:
	  	Notwithstanding Section 11.2 of the Equity Definitions, upon the occurrence of any event or condition set forth in Sections 4.05(a) – (e) of the Indenture that results in an
adjustment under the Indenture, the Calculation Agent (i) shall make a corresponding adjustment to the terms relevant to the exercise, settlement, payment or other terms of the Transaction and (ii) may adjust the Cap Price as appropriate to account
for the economic effect on the Transaction of such event or condition after giving effect to the adjustment in clause (i); provided that the Cap Price shall not be adjusted so that it is less than the Strike Price. Immediately upon the
occurrence of any event that Counterparty reasonably expects to result in an adjustment to the “Conversion Rate” (as defined in the Indenture), Counterparty shall notify the Calculation Agent of such event; and once the adjustments to be
made to the terms of the Indenture and the Convertible Securities in respect of such event have been determined, Counterparty shall immediately notify the Calculation Agent in writing or by email (with confirmation of receipt by Dealer) of the
details of such adjustments.
		
	 Dividends:
	  	If an ex-dividend date for a cash dividend on the Shares occurs on or after the Trade Date and on or prior to the Expiration Date and the amount of such dividend is less than
Ordinary Dividend Amount, or if no ex-dividend date for a cash dividend on the Shares occurs in any regular quarterly dividend period of Counterparty that falls, in whole or in part, after the Trade Date and on or prior to the Expiration Date, then
the Calculation Agent will make adjustments to the Delivery Obligation in respect of each Exercise Date as it determines appropriate to account for the economic effect on the Transaction of such shortfall.
		
	 Ordinary Dividend Amount:
	  	For the first cash dividend on the Shares for which the ex dividend date occurs during any regular quarterly dividend period of Counterparty that falls, in whole or in part,
after the Trade Date and on or prior to the Expiration Date, USD 0.17 (subject to adjustment as contemplated by Section 11.2(c) of the Equity Definitions); for any other cash dividend on the Shares for which the ex dividend date occurs during the
same regular quarterly dividend period, USD 0.00.
		
	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 4.06 of the
Indenture


  
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	 Tender Offers:
	  	Notwithstanding Section 12.1(d) of the Equity Definitions, a “Tender Offer” means the occurrence of any event or condition set forth in the definition of
“Fundamental Change” in the Indenture.
		
	 Consequences of Merger Events and Tender Offers:
	  	Notwithstanding Sections 12.2 and 12.3 of the Equity Definitions, (i) upon the occurrence of a Merger Event that results in an adjustment under the Indenture, the Calculation
Agent shall make a corresponding adjustment to the terms relevant to the exercise, settlement, payment or other terms of the Transaction; provided that such adjustment shall be made without regard to any adjustment to the “Conversion
Rate” pursuant to Sections 4.04, 4.05(g) or 4.05(h) of the Indenture; 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 is not reduced 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 (or depositary
receipts with respect to shares) of an entity or person not organized under the laws of the United States, any State thereof or the District of Columbia, Cancellation and Payment (Calculation Agent Determination) shall apply; and (ii) upon the
occurrence of a Merger Event or a Tender Offer, 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.
		
	 Notice of Merger Consideration:
	  	Upon the occurrence of a Merger Event that causes the Shares to be converted into the right to receive more than a single type of consideration (determined based in part upon any
form of stockholder election), Counterparty shall, concurrent with the making public thereof (but, in any event prior to the relevant merger date), notify the Calculation Agent of (i) the weighted average of the types and amounts of consideration to
be received by the holders of Shares entitled to receive cash, securities or other property or assets with respect to or in exchange for such Shares in any Merger Event who affirmatively make such an election and (ii) the details of the adjustment
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 shall also
constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The Nasdaq Global Select Market or The Nasdaq Global Market (or their
respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any such exchange or quotation system, such exchange or quotation system shall thereafter be deemed to be the Exchange.
		
	 Additional Disruption Events:
	  	
		
	 (a) Change in Law:
	  	Applicable, except to the extent such event would constitute an event under Section 8 below


  
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	 (b) Failure to Deliver:
	  	Applicable
		
	 (c) Insolvency Filing:
	  	Applicable
		
	 (d) Hedging Disruption:
	  	Applicable, except to the extent such event would constitute an event under Section 8 below
		
	 (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
		
	 3. Calculation Agent:
	  	Dealer
		
	4. Account Details:	  	
		
	 Dealer Payment Instructions:
	  	 Bank of New York
 ABA
021-000-018
 Deutsche Bank Securities Inc.
 A/C 8900327634
 FFC (BGC Partners, Inc.)

		
	 Counterparty Payment Instructions:
	  	To be provided by Counterparty.
		
	5. Offices:	  	
	
	    The Office of Dealer for the Transaction is: New York
	
	    The Office of Counterparty for the Transaction is: Not applicable
	
	6. Notices: For purposes of this Confirmation:
	
	 Address for notices or communications to Counterparty:



 

			
	 To:
	  	BGC Partners, Inc.
		  	499 Park Avenue
		  	New York, NY 10022
	 Attn:
	  	Stephen Merkel, General Counsel
	 Telephone:
	  	212-829-4829
	 Facsimile:
	  	212-829-4708
		
	 With a copy to:
	  	BGC Partners, Inc.
		  	110 East 59th Street
		  	New York, NY 10022
	 Attn:
	  	Treasury Department
	 Telephone:
	  	212-829-4704
	 Facsimile:
	  	212-308-7159
	
	 Address for notices or communications to Dealer:

		
	 To:
	  	Deutsche Bank AG, London Branch
		  	c/o Deutsche Bank Securities Inc.
	 Attn:
	  	Paul Stowell / Andrew Yaeger


  
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	 Group:
	  	Equity-Linked Capital Markets
		  	60 Wall Street, 4th Floor
		  	New York, NY 10005
	 Paul Tel:
	  	212-250-6270
	 Paul Email:
	  	paul.stowell@db.com
	 Andrew Tel:
	  	212-250-2717
	 Andrew Email:
	  	Andrew.yaeger@db.com
	 Facsimile:
	  	732-460-7499
		
	 With a copy to:
	  	
		
	 Attn:
	  	Lars Kestner / Dushyant Chadha
	 Group:
	  	Corporate Derivatives
		  	60 Wall Street, 4th Floor
		  	New York, NY 10005
	 Lars Tel:
	  	212-250-6043
	 Lars Email:
	  	lars.kestner@db.com
	 Dushyant Tel:
	  	212-250-4980
	 Dushyant Email:
	  	dushyant.chadha@db.com

 7. Representations, Warranties and Agreements: 

(a) In addition to the representations and warranties in the Agreement and those contained elsewhere herein, Counterparty represents and
warrants to and for the benefit of, and agrees with, Dealer as follows: 
 (i) On the Trade Date, and as of the
date of any election by Counterparty of the Share Termination Alternative under (and as defined in) Section 8(b) below, (A) none of Counterparty and its officers and directors is aware of any material nonpublic information regarding
Counterparty or the Shares and (B) all reports and other documents filed by Counterparty with the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”) when
considered as a whole (with the more recent such reports and documents deemed to amend inconsistent statements contained in any earlier such reports and documents), do not contain any untrue statement of a material fact or any omission of a material
fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading. 
 (ii)(A) On the Trade Date, the Shares or securities (other than the Convertible Securities) that are convertible into, or exchangeable or exercisable for Shares, are not, and shall not be, subject to a
“restricted period,” as such term is defined in Regulation M under the Exchange Act (“Regulation M”) and (B) Counterparty shall not engage in any “distribution,” as such term is defined in Regulation M,
other than a distribution meeting the requirements of the exceptions set forth in sections 101(b)(10) and 102(b)(7) of Regulation M, until the second Exchange Business Day immediately following the Trade Date. During (x) the relevant “Cash
Settlement Averaging Period” applicable to the Relevant Convertible Securities and (y) in the event an Early Termination Date is designated due to an Additional Termination Event as a result of an Excluded Conversion Event, a period
starting on or about such Early Termination Date as reasonably determined by Dealer and notified to Counterparty (an “Early Termination Period”), the Shares or securities that are convertible into, or exchangeable or exercisable
for, Shares will not be subject to a “restricted period,” as such term is defined in Regulation M under the Exchange Act . 
 (iii) On the Trade Date and on each day during the relevant “Cash Settlement Averaging Period” applicable to the Relevant Convertible Securities and any Early Termination Period, neither
Counterparty nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) shall directly or indirectly (including, without limitation, by means of any
cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial
interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable 

  
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or exercisable for Shares; provided, however, that Counterparty may purchase Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or
a depository share) pursuant to privately negotiated agreements with current or former employees of Counterparty or any of its affiliates. 
 (iv) Without limiting the generality of Section 13.1 of the Equity Definitions, Counterparty acknowledges that Dealer is not making any representations or warranties with respect to the treatment of
the Transaction under any accounting standards including FASB Statements 128, 133, 149 (each as amended), or 150, EITF Issue No. 00-19, 01-6, 03-6 or 07-5 (or any successor issue statements) or under FASB’s Liabilities & Equity
Project. 
 (v) Without limiting the generality of Section 3(a)(iii) of the Agreement, the Transaction will
not violate Rule 13e-1 or Rule 13e-4 under the Exchange Act. 
 (vi) Prior to the Trade Date, Counterparty shall
deliver to Dealer a resolution of Counterparty’s board of directors authorizing the Transaction and such other certificate or certificates as Dealer shall reasonably request. 

(vii) Counterparty is not entering into this Confirmation, and will not make any election hereunder or under the
Convertible Securities, to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible
into or exchangeable for Shares) or otherwise in violation of the Exchange Act. 
 (viii) Counterparty is not,
and after giving effect to the transactions contemplated hereby will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended. 

(ix) On each of the Trade Date and the Premium Payment Date, Counterparty is not, or will not be, “insolvent”
(as such term is defined under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase the Number of Shares hereunder in compliance
with the laws of the jurisdiction of its incorporation. 
 (x) To Counterparty’s knowledge, no state or
local (including non-U.S. jurisdictions) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior
approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares other than due to laws, rules, regulations or regulatory orders applicable to Dealer as a regulated financial institution and
affiliate of regulated financial institutions and not of general applicability. 
 (xi) The representations and
warranties of Counterparty set forth in Section 3 of the Agreement and Section 1 of the Purchase Agreement, dated July 25, 2011, among Counterparty and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Cantor
Fitzgerald & Co. and Deutsche Bank Securities Inc., as representatives of the Initial Purchasers listed on Schedule A thereto (the “Purchase Agreement”), were true and correct as of the date made or deemed made and are
hereby deemed to be repeated to Dealer as if set forth herein. 
 (xii) Counterparty understands no obligations
of Dealer to it hereunder will be entitled to the benefit of deposit insurance and that such obligations will not be guaranteed by any affiliate of Dealer or any governmental agency. 

(b) Each of Dealer and Counterparty agrees and represents that it is an “eligible contract participant” as defined in
Section 1a(12) of the U.S. Commodity Exchange Act, as amended. 
 (c) Each of Dealer and Counterparty acknowledges that the
offer and sale of the Transaction to it is intended to be exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”), by virtue of Section 4(2) thereof. Accordingly, Counterparty represents and
warrants to Dealer that (i) it has the financial ability to bear the economic risk of its investment in the Transaction and is able to bear a total loss of its investment, (ii) it is an “accredited investor” as that term is
defined in Regulation D as promulgated under the Securities Act, (iii) it is entering into the Transaction for its own account and without a view to the distribution or resale thereof and (iv) the assignment, transfer or other disposition
of the Transaction has not been and will not be registered under the Securities Act and is restricted under this Confirmation, the Securities Act and state securities laws. 

  
 11 









 (d) Each of Dealer and Counterparty agrees and acknowledges that Dealer is a “financial
institution,” “swap participant” and, to the best of Counterparty’s information and belief, “financial participant” within the meaning of Sections 101(22), 101(22A) and 101(53C) of the Bankruptcy Code. The parties
hereto further agree and acknowledge (A) that this Confirmation is (i) a “securities contract,” as such term is defined in Section 741(7) of the Bankruptcy Code, with respect to which each payment and delivery hereunder or
in connection herewith is a “termination value,” “payment amount” or “other transfer obligation” within the meaning of Section 362 of the Bankruptcy Code and a “settlement payment,” as such term is
defined in Section 741(8) of the Bankruptcy Code, and (ii) a “swap agreement,” as such term is defined in Section 101(53B) of the Bankruptcy Code, with respect to which each payment and delivery hereunder or in connection
herewith is a “termination value,” “payment amount” or “other transfer obligation” within the meaning of Section 362 of the Bankruptcy Code and a “transfer,” as such term is defined in
Section 101(54) of the Bankruptcy Code, and (B) that Dealer is entitled to the protections afforded by, among other sections, Sections 362(b)(6), 362(b)(17), 362(o), 546(e), 546(g), 548(d)(2), 555 and 560 of the Bankruptcy Code.

 (e) Counterparty shall deliver to Dealer an opinion of counsel, dated as of the Effective Date and reasonably acceptable to
Dealer in form and substance, with respect to the matters set forth in Section 3(a) of the Agreement. 
 8. Other
Provisions: 
 (a) Additional Termination Events. The occurrence (and, in the case of clause (i), continuation) of
(i) an “Event of Default” with respect to Counterparty under the terms of the Convertible Securities as set forth in Section 7.01 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; provided that, in the case of an Excluded Conversion Event, the Transaction shall be subject to termination only in respect of a number of Options equal to the number of Convertible Securities that cease to
be outstanding in connection with or as a result of such Excluded Conversion Event. For the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement in connection with
an Excluded Conversion Event, the Calculation Agent shall assume that (x) the relevant Excluded Convertible Securities shall not have been converted and remain outstanding, and (y) in the case of an Induced Conversion, any adjustments,
agreements, additional payments, deliveries or acquisitions by or on behalf of Counterparty or any affiliate of Counterparty in connection therewith had not occurred. 

“Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in
respect of any term of the Indenture or the Convertible Securities that would require consent of the holders of not less than 100% of the principal amount of the Convertible Securities to amend, in each case without the consent of Dealer.

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

 “Induced Conversion” means a conversion of any Excluded Convertible Securities (A) in
connection with (x) an adjustment to the “Conversion Rate” (as defined in the Indenture) effected by Counterparty (whether pursuant to Section 4.05(g) of the Indenture or otherwise) that is not required under the terms of the
Indenture or (y) an agreement by Counterparty with the holder(s) of such Convertible Securities whereby, in the case of either (x) or (y), the holder(s) of such Convertible Securities receive upon conversion or pursuant to such agreement,
as the case may be, a payment of cash or delivery of Shares or any other property or item of value that was not required under the terms of the Indenture or (B) after having been acquired from a holder of Convertible Securities by or on behalf
of Counterparty or any of its affiliates other than pursuant to a conversion by such holder and thereafter converted by or on behalf of Counterparty or any affiliate of Counterparty. 

(b) Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events. If Dealer shall owe
Counterparty any amount pursuant to “Consequences of Merger Events and Tender Offers” above or Sections 12.6, 12.7 or 12.9 of the Equity Definitions or pursuant to Section 6(d)(ii) of the Agreement (a “Payment
Obligation”), Counterparty shall have the right, in its sole discretion, to require Dealer to satisfy any such Payment Obligation by the Share Termination Alternative (as defined below) by giving irrevocable telephonic notice to Dealer,
confirmed in writing or by email (with confirmation of receipt by Dealer) within one Scheduled Trading Day, no later than 9:30 A.M. New York City time on the relevant merger date or date of cancellation or termination in respect of an Extraordinary
Event, as applicable, or within one hour of receipt of notice designating an Early Termination Date or the public announcement of the event giving rise to the Announcement Date (“Notice of Share Termination”); provided 


  
 12 









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

			
	 Share Termination Alternative:
	  	Applicable and means that Dealer shall deliver to Counterparty the Share Termination Delivery Property on the date on which the Payment Obligation would otherwise be due pursuant
to “Consequences of Merger Events and Tender Offers” above, Section 12.6, 12.7 or 12.9 of the Equity Definitions or Section 6(d)(ii) of the Agreement, as applicable, or such later date as the Calculation Agent may reasonably determine (the
“Share Termination Payment Date”), in satisfaction of the Payment Obligation.
		
	 Share Termination Delivery Property:
	  	A number of Share Termination Delivery Units, as calculated by the Calculation Agent, equal to the Payment Obligation divided by the Share Termination Unit Price. The Calculation
Agent shall adjust the Share Termination Delivery Property by replacing any fractional portion of the aggregate amount of a security therein with an amount of cash equal to the value of such fractional security based on the values used to calculate
the Share Termination Unit Price.
		
	 Share Termination Unit Price:
	  	The value of property contained in one Share Termination Delivery Unit on the date such Share Termination Delivery Units are to be delivered as Share Termination Delivery
Property, as determined by the Calculation Agent in its discretion by commercially reasonable means and notified by the Calculation Agent to Dealer at the time of notification of the Payment Obligation.
		
	 Share Termination Delivery Unit:
	  	In the case of a Termination Event, Event of Default, Delisting or Additional Disruption Event, one Share or, in the case of an Insolvency, Nationalization or Merger Event, one
Share or a unit consisting of the number or amount of each type of property received by a holder of one Share (without consideration of any requirement to pay cash or other consideration in lieu of fractional amounts of any securities) in such
Insolvency, Nationalization or Merger Event, as applicable. If such Insolvency, Nationalization or Merger Event involves a choice of consideration to be received by holders, such holder shall be deemed to have elected to receive the maximum possible
amount of cash.
		
	 Failure to Deliver:
	  	Applicable
		
	 Other applicable provisions:
	  	If Share Termination Alternative is applicable, the provisions of Sections 9.8, 9.9, 9.10, and 9.11 (except that the Representation and Agreement contained in Section 9.11 of the
Equity Definitions shall be modified by excluding any representations therein relating to restrictions, obligations, limitations or requirements under applicable securities laws arising as a result of the fact that Counterparty is the issuer of the
Shares or any portion of the Share Termination Delivery Units) 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.”

 (c) Disposition of Hedge Shares. Counterparty hereby agrees that if, in the good faith reasonable
judgment of Dealer based upon advice of legal counsel, any Shares (the “Hedge Shares”) acquired by Dealer for the purpose of hedging its obligations pursuant to the Transaction cannot be sold in the public market by Dealer without


  
 13 









 
registration under the Securities Act, Counterparty shall, at its election: (i) in order to allow Dealer to sell the Hedge Shares in a registered offering, make available to Dealer an
effective registration statement under the Securities Act to cover the resale of such Hedge Shares and (A) enter into an agreement, in form and substance satisfactory to Dealer, substantially in the form of an underwriting agreement for a
registered offering, (B) provide accountant’s “comfort” letters in customary form for registered offerings of equity securities, (C) provide disclosure opinions of nationally recognized outside counsel to Counterparty
reasonably acceptable to Dealer, (D) provide other customary opinions, certificates and closing documents customary in form for registered offerings of equity securities and (E) afford Dealer a reasonable opportunity to conduct a “due
diligence” investigation with respect to Counterparty customary in scope for underwritten offerings of equity securities; provided, however, that if Dealer, in its reasonable discretion, is not satisfied with access to due diligence
materials, the results of its due diligence investigation, or the procedures and documentation for the registered offering referred to above, then clause (ii) or clause (iii) of this Section 8(c) shall apply at the election of
Counterparty; (ii) in order to allow Dealer to sell the Hedge Shares in a private placement, enter into a private placement agreement substantially similar to private placement purchase agreements customary for private placements of equity
securities of its size, in form and substance reasonably satisfactory to Dealer, including customary representations, covenants, blue sky and other governmental filings and/or registrations, indemnities to Dealer, due diligence rights (for Dealer or
any designated buyer of the Hedge Shares from Dealer), opinions and certificates and such other documentation as is customary for private placement agreements relating to private placements of such size, all reasonably acceptable to Dealer (in which
case, the Calculation Agent shall make any adjustments to the terms of the Transaction that are necessary, in its reasonable judgment, to compensate Dealer for any discount from the public market price of the Shares incurred on the sale of Hedge
Shares in a private placement); or (iii) purchase the Hedge Shares from Dealer at the VWAP Price on such Exchange Business Days, and in the amounts, requested by Dealer. “VWAP Price” means, on any Exchange Business Day, the per
Share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page “BGCP.UQ <equity>AQR” (or any successor thereto) in respect of the period from 9:30 a.m. to 4:00 p.m. (New York City
time) on such Exchange Business Day (or if such volume-weighted average price is unavailable or is manifestly incorrect, the market value of one Share on such Exchange Business Day, as determined by the Calculation Agent using a volume-weighted
method). For purposes of this Section 8(c) and Section 8(n) below, in connection with unwinding its hedge position, Dealer shall act in accordance with customary practices in connection with transactions of this nature. 

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

Section 12.6(a)(ii) of the Equity Definitions is hereby amended by deleting from the fourth line thereof the word
“or” after the word “official” and inserting a comma therefor. 
 (e) Repurchase and Conversion Rate
Adjustment Notices. Counterparty shall, at least 10 Scheduled Trading Days prior to effecting any repurchase of Shares or consummating or otherwise executing or engaging in any transaction or event (a “Conversion Rate Adjustment
Event”) that would lead to an increase in the Conversion Rate (as such term is defined in the Indenture), give Dealer a written notice of such repurchase or Conversion Rate Adjustment Event (a “Repurchase Notice”) if,
following such repurchase or Conversion Rate Adjustment Event, the Notice Percentage as determined on the date of such Repurchase Notice is (i) greater than 4.5% and (ii) greater by 0.5% than the Notice Percentage included in the
immediately preceding Repurchase Notice (or, in the case of the first such Repurchase Notice, greater than the Notice Percentage as of the date hereof). The “Notice Percentage” as of any day is the fraction, expressed as a
percentage, the numerator of which is the Applicable Percentage of the Number of Shares and the denominator of which is the number of Shares outstanding on such day. In the event that Counterparty fails to provide Dealer with a Repurchase Notice on
the day and in the manner specified in this Section 8(e) then Counterparty agrees to indemnify and hold harmless Dealer, its affiliates and their respective directors, officers, employees, agents and controlling persons (Dealer and each such
person being an “Indemnified Party”) from and against any and all losses, claims, damages and liabilities (or actions in respect thereof), joint or several, to which such Indemnified Party may become subject under applicable
securities laws, including without limitation, Section 16 of the Exchange Act, relating to or arising out of such failure. If for any reason the foregoing indemnification is unavailable to any Indemnified Party or insufficient to hold harmless
any Indemnified Party, then Counterparty shall contribute, to the maximum extent permitted by law, to the amount paid or payable by the Indemnified Party as a result of such loss, claim, damage or liability. In addition, Counterparty will reimburse
any Indemnified Party for all expenses (including reasonable counsel fees and expenses) as they are incurred (after notice to Counterparty) in connection with the investigation of, preparation for or defense or settlement of any pending or
threatened claim or any action, suit or proceeding arising therefrom, whether or not such Indemnified Party is a party thereto and whether or not such claim, action, suit or proceeding is initiated or brought by or on behalf of Counterparty. This
indemnity shall survive the completion of the Transaction contemplated by this Confirmation and any assignment and delegation of the Transaction made pursuant to this Confirmation or the Agreement shall inure to the benefit of any permitted assignee
of Dealer. 

  
 14 









 (f) Transfer and Assignment. Either party may transfer any of its rights or
obligations under the Transaction with the prior written consent of the non-transferring party, such consent not to be unreasonably withheld or delayed. For the avoidance of doubt, Dealer may condition its consent on any of the following, without
limitation: (i) the receipt by Dealer of opinions and documents reasonably satisfactory to Dealer in connection with such assignment, (ii) such assignment being effected on terms reasonably satisfactory to Dealer with respect to any legal
and regulatory requirements relevant to Dealer, and (iii) Counterparty continuing to be obligated to provide notices hereunder relating to the Convertible Securities and continuing to be obligated with respect to “Disposition of Hedge
Shares” and “Repurchase and Conversion Rate Adjustment Notices” above. In addition, Dealer may transfer or assign without any consent of the Counterparty its rights and obligations hereunder and under the Agreement, in whole or in
part, to any person, which may include affiliates of Dealer or entities sponsored or organized by, or on behalf of or for the benefit of Dealer, so long as (i) such person has a credit rating at least equivalent to that of Dealer at the time of
such transfer or assignment or (ii) such person’s performance of the obligations under this Confirmation are fully and unconditionally guaranteed by Dealer or an affiliate of Dealer with a credit rating at least equivalent to that of
Dealer at the time of such transfer or assignment; provided, however, that in no event shall Dealer transfer or assign without any consent of the Counterparty its rights and obligations hereunder and under the Agreement, in whole or in part,
to any of the entities listed on Schedule I hereto or their respective affiliates. At any time at which any Excess Ownership Position exists, if Dealer, in its discretion, is unable to effect a transfer or assignment to a third party in accordance
with the requirements set forth above after using its commercially reasonable efforts on pricing terms and within a time period reasonably acceptable to Dealer such that an Excess Ownership Position no longer exists, Dealer may designate any
Scheduled Trading Day as an Early Termination Date with respect to a portion (the “Terminated Portion”) of the Transaction, such that such Excess Ownership Position no longer exists. In the event that Dealer so designates an Early
Termination Date with respect to a portion of the Transaction, a payment or delivery shall be made pursuant to Section 6 of the Agreement and Section 8(b) of this Confirmation as if (i) an Early Termination Date had been designated in
respect of a Transaction having terms identical to the Terminated Portion of the Transaction, (ii) Counterparty shall be the sole Affected Party with respect to such partial termination and (iii) such portion of the Transaction shall be
the only Terminated Transaction. “Excess Ownership Position” means any of the following: (i) the Equity Percentage exceeds 9.0%, (ii) Dealer or any “affiliate” or “associate” of Dealer would own in
excess of 13% of the outstanding Shares for purposes of Section 203 of the Delaware General Corporation Law or (iii) Dealer, Dealer Group (as defined below) or any person whose ownership position would be aggregated with that of Dealer or
Dealer Group (Dealer, Dealer Group or any such person, a “Dealer Person”) under any federal, state or local laws, regulations or regulatory orders applicable to ownership of Shares (“Applicable Laws”), owns,
beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership in excess of a number of Shares equal to (x) the number of Shares that would give rise to reporting or registration
obligations or other requirements (including obtaining prior approval by a state or federal regulator) of a Dealer Person under Applicable Laws and with respect to which such requirements have not been met or the relevant approval has not been
received minus (y) 1% of the number of Shares outstanding on the date of determination. The “Equity Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of
Shares that Dealer and any of its affiliates or any other person subject to aggregation with Dealer, for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act, or any “group” (within the meaning of
Section 13) of which Dealer is or may be deemed to be a part (Dealer and any such affiliates, persons and groups, collectively, “Dealer Group”), beneficially owns (within the meaning of Section 13 of the Exchange Act),
without duplication, on such day and (B) the denominator of which is the number of Shares outstanding on such day. 
 (g)
Staggered Settlement. Dealer may, by notice to Counterparty on or prior to any Settlement Date (a “Nominal Settlement Date”), elect to deliver the Shares on two or more dates (each, a “Staggered Settlement
Date”) or at two or more times on the Nominal Settlement Date as follows: 
 (i) in such notice, Dealer
will specify to Counterparty the related Staggered Settlement Dates (each of which will be on or prior to such Nominal Settlement Date, but not prior to the beginning of the related “Cash Settlement Averaging Period”, as defined in the
Indenture) or delivery times and how it will allocate the Shares it is required to deliver under “Delivery Obligation” (above) among the Staggered Settlement Dates or delivery times; and 

  
 15 









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

(h) Right to Extend. Dealer may postpone any Exercise Date or Settlement Date or any other date of valuation or delivery by Dealer
with respect to some or all of the relevant Options (in which event the Calculation Agent shall make appropriate adjustments to the Delivery Obligation), if Dealer determines, in its reasonable discretion, taking into account advice of nationally
recognized counsel experienced in such matters selected by Dealer in consultation with Counterparty, that such extension is reasonably necessary or appropriate to (i) preserve Dealer’s hedging or hedge unwind activity hereunder in light of
existing liquidity conditions in the cash market, the stock loan market or any other relevant market or (ii) to enable Dealer to effect purchases of Shares in connection with its hedging, hedge unwind or settlement activity hereunder, in each
case, in a manner that would be in compliance with applicable legal, regulatory or self-regulatory requirements. 
 (i)
Adjustments. For the avoidance of doubt, whenever the Calculation Agent is called upon to make an adjustment pursuant to the terms of this Confirmation or the Definitions to take into account the effect of an event, the Calculation Agent
shall make such adjustment on a commercially reasonable basis by reference to the effect of such event on the Hedging Party, assuming that the Hedging Party maintains a commercially reasonable hedge position. 

(j) Disclosure. Effective from the date of commencement of discussions concerning the Transaction, Counterparty and each of its
employees, representatives, or other agents may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all materials of any kind (including opinions or other tax analyses) that are
provided to Counterparty relating to such tax treatment and tax structure. 
 (k) Designation by Dealer. Notwithstanding
any other provision in this Confirmation to the contrary requiring or allowing Dealer to purchase, sell, receive or deliver any Shares or other securities to or from Counterparty, Dealer may designate any of its affiliates to purchase, sell, receive
or deliver such Shares or other securities and otherwise to perform Dealer’s obligations in respect of the Transaction and any such designee may assume such obligations. Dealer shall be discharged of its obligations to Counterparty to the
extent of any such performance. 
 (l) No Netting and Set-off. Notwithstanding any provision of the Agreement
(including without limitation Section 6(f) thereof) and this Confirmation or any other agreement between the parties to the contrary, neither party shall net or set off its obligations under the Transaction against its rights against the other
party under any other transaction or instrument. 
 (m) Equity Rights. Dealer acknowledges and agrees that this
Confirmation is not intended to convey to it rights with respect to the Transaction that are senior to the claims of common stockholders in the event of Counterparty’s bankruptcy. For the avoidance of doubt, the parties agree that the preceding
sentence shall not apply at any time other than during Counterparty’s bankruptcy to any claim arising as a result of a breach by Counterparty of any of its obligations under this Confirmation or the Agreement. For the avoidance of doubt, the
parties acknowledge that this Confirmation is not secured by any collateral that would otherwise secure the obligations of Counterparty herein under or pursuant to any other agreement. 

(n) Early Unwind. In the event the sale by Counterparty of the Convertible Securities is not consummated with the Initial
Purchasers pursuant to the Purchase Agreement for any reason by the close of business in New York on July 29, 2011 (or such later date as agreed upon by the parties, which in no event shall be later than ten business days following
July 29, 2011) (July 29, 2011or such later date being the “Early Unwind Date”), the Transaction shall automatically terminate (the “Early Unwind”), on the Early Unwind Date and (i) the Transaction and all
of the respective rights and obligations of Dealer and Counterparty thereunder shall be cancelled and terminated and (ii) other than in the case of the failure of such sale to be consummated due to a breach by Dealer of its obligations under
the Purchase Agreement, Counterparty shall pay to Dealer an amount in cash equal to the aggregate amount of reasonable costs and expenses relating to the unwinding of Dealer’s hedging activities in respect of the Transaction (including market
losses incurred in reselling any Shares purchased by Dealer or its affiliates in connection with such hedging activities, unless Counterparty agrees to purchase any such Shares at the cost at which Dealer or its affiliates purchased such Shares) or,
at the election of Counterparty, deliver to Dealer Shares with a value equal to such amount, as determined by the Calculation Agent, in which event the parties shall enter into customary and commercially reasonable documentation relating to the
registered or exempt resale of such Shares; provided that in no event shall the number of such Shares exceed the lesser of 27,439,020 and the number of Shares then authorized for issuance under Counterparty’s certificate of incorporation
which are unissued at that time. Following such termination, cancellation and payment or 

  
 16 









 
delivery, each party shall be released and discharged by the other party from and agrees not to make any claim against the other party with respect to any obligations or liabilities of either
party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date. Dealer and Counterparty represent and acknowledge to the other that upon an Early Unwind and following the payment or
delivery referred to above, all obligations with respect to the Transaction shall be deemed fully and finally discharged. 
 (o)
Special Provisions for Counterparty Payments. The parties hereby agree that, notwithstanding anything to the contrary herein or in the Agreement or the Equity Definitions, in the event that an Early Termination Date (whether as a result of an
Event of Default or a Termination Event) occurs or is designated with respect to the Transaction and, as a result, Counterparty owes to Dealer an amount calculated under Section 6(e) of the Agreement, or Counterparty owes Dealer a Cancellation
Amount pursuant to Article 12 of the Equity Definitions, such amount shall be deemed to be zero. 
 (p) Payments on Early
Termination. Counterparty and Dealer each agree that for the purpose of Section 6(e) of the Agreement: (i) Loss shall apply and (ii) the Second Method shall apply. 

(q) Waiver of Trial by Jury. EACH OF COUNTERPARTY AND DEALER HEREBY IRREVOCABLY WAIVES (ON ITS OWN BEHALF AND, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS STOCKHOLDERS) ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE TRANSACTION OR THE ACTIONS OF DEALER OR
ITS AFFILIATES IN THE NEGOTIATION, PERFORMANCE OR ENFORCEMENT HEREOF. 
 (r) Governing Law; Jurisdiction. THIS
CONFIRMATION (INCLUDING THE AGREEMENT) AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS CONFIRMATION SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF
THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES COURT FOR THE SOUTHERN DISTRICT OF NEW YORK IN CONNECTION WITH ALL MATTERS RELATING HERETO AND WAIVE ANY OBJECTION TO THE LAYING OF VENUE IN, AND ANY CLAIM OF INCONVENIENT FORUM WITH RESPECT
TO, THESE COURTS. 
 [Remainder of Page Intentionally Blank] 

  
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 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 Deutsche Bank AG,
London Branch via facsimile to 44 113 336 2009. 
  

					
	Yours faithfully,
	
	DEUTSCHE BANK AG, LONDON BRANCH
		
	By:	 	/s/ Lars Kestner
		 	Name:	 	Lars Kestner
		 	Title:	 	Managing Director


  

					
	By:	 	/s/ Sunil Hariani
		 	Name:	 	Sunil Hariani
		 	Title:	 	Attorney-in-Fact


  

					
	DEUTSCHE BANK SECURITIES INC.,
	Acting solely as Agent in connection with this Transaction
		
	By:	 	/s/ Lars Kestner
		 	Name:	 	Lars Kestner
		 	Title:	 	Managing Director


  

					
	By:	 	/s/ Sunil Hariani
		 	Name:	 	Sunil Hariani
		 	Title:	 	Managing Director


  

					
	Agreed and Accepted By:
	
	BGC PARTNERS, INC.
		
	By:	 	/s/ Anthony Graham Sadler
		 	Name:	 	Anthony Graham Sadler
		 	Title:	 	Chief Financial Officer








 ANNEX A 
 The Cap Price and Premium for the Transaction are set forth below. 
  

			
	 Cap Price:
	  	USD12.30
		
	 Premium:
	  	USD5,767,200


  
 Annex A - 1