Exhibit 10.2

 

Pursuant to 17 CFR 240.24b-2, confidential information (indicated by [***]) has been omitted from Annex B and has been filed separately with the Securities and Exchange Commission pursuant to a Confidential Treatment Application filed with the Commission.

 

Execution Version

 

	
 
    	
Deutsche Bank 

 

Deutsche Bank AG, London Branch

Winchester   house

1   Great Winchester St,

London   EC2N 2DB

Telephone:    44 20 7545 8000

 

c/o Deutsche Bank Securities Inc.

60   Wall Street

New   York, NY 10005

Telephone:   (212) 250-2500
    


 

	
DATE:
    	
October 11,   2011
    
	
 
    	
 
    
	
TO:
    	
United   Therapeutics Corporation
    
	
ATTENTION:
    	
John   Ferrari, Chief Financial Officer and Treasurer
    
	
TELEPHONE:
    	
(301) 608-9292
    
	
FACSIMILE:
    	
(301) 608-3049
    
	
 
    	
 
    
	
FROM:
    	
Deutsche Bank AG, London Branch
    
	
TELEPHONE:
    	
44   20 7545 8193
    
	
FACSIMILE:
    	
44   11 3336 2009
    
	
 
    	
 
    
	
SUBJECT:
    	
Equity   Derivatives Confirmation
    
	
 
    	
 
    
	
REFERENCE   NUMBER(S):
    	
457099
    


 

The purpose of this facsimile agreement (this “Confirmation”) is to confirm the terms and conditions of the transaction entered into between Deutsche Bank AG, London Branch (“Deutsche”) and United Therapeutics Corporation (“Counterparty”) on the Trade Date specified below (the “Transaction”).  This Confirmation constitutes a “Confirmation” as referred to in the ISDA Master Agreement specified below.  This Confirmation constitutes the entire agreement and understanding of the parties with respect to the subject matter and terms of the Transaction and supersedes all prior or contemporaneous written and oral communications with respect thereto.

 

DEUTSCHE BANK AG IS NOT REGISTERED AS A BROKER OR DEALER UNDER THE U.S. SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.  DEUTSCHE BANK SECURITIES INC. (“AGENT”) HAS ACTED SOLELY AS AGENT IN CONNECTION WITH THE TRANSACTION AND HAS NO OBLIGATION, BY WAY OF ISSUANCE, ENDORSEMENT, GUARANTEE OR OTHERWISE WITH RESPECT TO THE PERFORMANCE OF EITHER PARTY UNDER THE TRANSACTION.  AS SUCH, ALL DELIVERY OF FUNDS, ASSETS, NOTICES, DEMANDS AND COMMUNICATIONS OF ANY KIND RELATING TO THE TRANSACTION BETWEEN DEUTSCHE AND COUNTERPARTY SHALL BE TRANSMITTED EXCLUSIVELY THROUGH AGENT.  DEUTSCHE BANK AG, LONDON BRANCH IS NOT A MEMBER OF THE SECURITIES INVESTOR PROTECTION CORPORATION (SIPC).

 

	
Chairman of the   Supervisory Board: Clemens Börsig Management Board: Josef Ackermann   (Chairman), Hugo Bänziger, Jürgen Fitschen, Anshuman Jain, Stefan Krause,   Hermann-Josef Lamberti, Rainer Neske
    	
 
    	
Deutsche Bank AG is authorised under German Banking   Law (competent authority: BaFin – Federal Financial Supervising Authority)   and regulated by the Financial Services Authority for the conduct of UK   business; a member of the London Stock Exchange. Deutsche Bank AG is a joint   stock corporation with limited liability incorporated in the Federal Republic   of Germany HRB No. 30 000 District Court of Frankfurt am Main; Branch   Registration in England and Wales BR000005; Registered address: Winchester   House, 1 Great Winchester Street, London EC2N 2DB. Deutsche Bank Group   online: http://www.deutsche-bank.com
    


 











 

The definitions contained in the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”), as published by the International Swaps and Derivatives Association, Inc., are incorporated into this Confirmation.  In the event of any inconsistency between the Equity Definitions and the terms of this Confirmation, the terms of this Confirmation shall govern.  For the purposes of the Equity Definitions, each reference herein to a Warrant shall be deemed to be a reference to a Call or an Option, as context requires.

 

This Confirmation evidences a complete and binding agreement between Deutsche and Counterparty as to the terms of the Transaction to which this Confirmation relates.  This Confirmation shall supplement, form a part of, and be subject to an agreement (the “Agreement”) in the form of the ISDA 2002 Master Agreement (the “ISDA Form”) as if Deutsche 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.

 

2.     The Transaction is a Warrant Transaction, which shall be considered a Share Option Transaction for purposes of the Equity Definitions, and shall have the following terms:

 

	
General:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Trade   Date:
    	
 
    	
October 11,   2011.
    
	
 
    	
 
    	
 
    
	
Effective   Date:
    	
 
    	
October 17,   2011.
    
	
 
    	
 
    	
 
    
	
Components:
    	
 
    	
The   Transaction will be divided into individual Components, each with the terms   set forth in this Confirmation, and, in particular, with the Number of   Warrants and Expiration Date set forth in this Confirmation. The payments and   deliveries to be made upon settlement of the Transaction will be determined   separately for each Component as if each Component were a separate   Transaction under the Agreement.
    
	
 
    	
 
    	
 
    
	
Warrant   Style:
    	
 
    	
European.
    
	
 
    	
 
    	
 
    
	
Warrant   Type:
    	
 
    	
Call.
    
	
 
    	
 
    	
 
    
	
Seller:
    	
 
    	
Counterparty.
    
	
 
    	
 
    	
 
    
	
Buyer:
    	
 
    	
Deutsche.
    
	
 
    	
 
    	
 
    
	
Shares:
    	
 
    	
The   common stock, par value USD 0.01 per share, of Counterparty.
    
	
 
    	
 
    	
 
    
	
Number   of Warrants:
    	
 
    	
For   each Component, as set forth in Annex B to this Confirmation.
    
	
 
    	
 
    	
 
    
	
Strike   Price:
    	
 
    	
USD   67.56.
    
	
 
    	
 
    	
 
    
	
Premium:
    	
 
    	
As   set forth in Annex B to this Confirmation.
    
	
 
    	
 
    	
 
    
	
Premium   Payment Date:
    	
 
    	
The   Effective Date.
    
	
 
    	
 
    	
 
    
	
Exchange:
    	
 
    	
The   NASDAQ Global Select Market.
    
	
 
    	
 
    	
 
    
	
Related   Exchanges:
    	
 
    	
All   Exchanges.
    


 

2











 

	
Calculation   Agent:
    	
 
    	
Deutsche.   The Calculation Agent shall, upon reasonable written request by Counterparty,   provide promptly a written explanation (in a commonly used file format for   the storage and manipulation of financial data) displaying in reasonable   detail the basis of any calculation or adjustment made by it including, where   applicable, a description of the methodology and data applied, it being   understood that the Calculation Agent shall not be obligated to disclose any   proprietary models used by it for such calculation or adjustment.
    
	
 
    	
 
    	
 
    
	
Procedure   for Exercise:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
In respect of any Component:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Expiration   Date:
    	
 
    	
As   provided in Annex B to this Confirmation (or, if such date is not a Scheduled   Trading Day, the next following Scheduled Trading Day that is not already an   Expiration Date for another Component); provided   that if that date is a Disrupted Day, the Expiration Date for such Component   shall be the first succeeding Scheduled Trading Day that is not a Disrupted   Day and is not or is not deemed to be an Expiration Date in respect of any   other Component of the Transaction hereunder; and provided further that if the Expiration Date has not   occurred pursuant to the preceding proviso as of the Final Disruption Date   (as set forth in Annex B to this Confirmation), the Final Disruption Date   shall be the Expiration Date (irrespective of whether such date is an   Expiration Date in respect of any other Component for the Transaction) and,   notwithstanding anything to the contrary in this Confirmation or the Equity   Definitions, the Relevant Price for the Expiration Date shall be the   prevailing market value per Share determined by the Calculation Agent in a   commercially reasonable manner. Notwithstanding the foregoing and anything to   the contrary in the Equity Definitions, if a Market Disruption Event occurs   on any Expiration Date, the Calculation Agent may determine that such   Expiration Date is a Disrupted Day only in part, in which case the   Calculation Agent shall make adjustments to the number of Warrants for the relevant   Component for which such day shall be the Expiration Date and shall designate   the Scheduled Trading Day determined in the manner described in the   immediately preceding sentence as the Expiration Date for the remaining   Warrants for such Component. Section 6.6 of the Equity Definitions shall   not apply to any Valuation Date occurring on an Expiration Date.
    
	
 
    	
 
    	
 
    
	
Automatic   Exercise:
    	
 
    	
Applicable.   Each Warrant not previously exercised will be deemed to be automatically   exercised on the Expiration Time on the relevant Expiration Date.
    
	
 
    	
 
    	
 
    
	
Market   Disruption Event:
    	
 
    	
Section 6.3(a) of   the Equity Definitions is hereby amended by deleting the words “during the   one hour period that ends at the relevant Valuation Time, Latest Exercise   Time, Knock-in Valuation Time or 
    


 

3











 

	
 
    	
 
    	
Knock-out   Valuation Time, as the case may be,” in clause (ii) thereof, and by   replacing the words “or (iii) an Early Closure.” with “(iii) an   Early Closure or (iv) a Regulatory Disruption, in each case that the   Calculation Agent determines is material.” 

 

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.
    
	
 
    	
 
    	
 
    
	
Regulatory   Disruption:
    	
 
    	
Any   event that Deutsche, in its commercially reasonable discretion upon the   advice of outside counsel, determines makes it appropriate with regard to any   legal, regulatory or self-regulatory requirements or related policies and   procedures (whether or not such requirements, policies or procedures are   imposed by law or have been voluntarily adopted by Deutsche, and including   without limitation Rule 10b-18, Rule 10b-5, Regulation 13D-G and   Regulation 14E under the U.S. Securities Exchange Act of 1934, as amended   (the “Exchange Act”), and   Regulation M and/or analyzing Deutsche as if Deutsche were the Issuer or an   affiliated purchaser of the Issuer), for Deutsche to refrain from or decrease   any market activity in connection with the Transaction. Deutsche shall notify   Counterparty as soon as reasonably practicable that a Regulatory Disruption   has occurred and the Expiration Dates affected by it.
    
	
 
    	
 
    	
 
    
	
Settlement   Terms:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
In respect of any Component:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Net   Share Settlement:
    	
 
    	
On   each Settlement Date, Counterparty shall deliver to Deutsche a number of   Shares equal to the Net Share Amount for such Settlement Date to the account   specified by Deutsche, and cash in lieu of any fractional shares valued at   the Relevant Price for the Valuation Date corresponding to such Settlement   Date. If, in the good faith reasonable judgment of Deutsche, the Shares   deliverable hereunder would not be immediately freely transferable by   Deutsche under Rule 144 (“Rule 144”)   under the U.S. Securities Act of 1933, as amended (the “Securities   Act”) or any successor provision, then Deutsche may elect to   either (x) accept delivery of such Shares notwithstanding the fact that   such Shares are not immediately freely transferable by Deutsche under   Rule 144 or any successor provision or (y) require that such   delivery take place pursuant to the provisions set forth opposite the caption   “Registration/Private Placement Procedures” below.
    
	
 
    	
 
    	
 
    
	
Net   Share Amount:
    	
 
    	
For   any Exercise Date, a number of Shares, as calculated by the Calculation   Agent, equal to (x) the product of (i) the number of Warrants being   exercised or deemed exercised on such Exercise Date, and   (ii) the excess, if any, of the Relevant Price for the Valuation Date   occurring on such Exercise Date over the Strike Price (such product, the “Net Share Settlement Amount”), divided by   (y) such Relevant 
    


 

4











 

	
 
    	
 
    	
Price.
    
	
 
    	
 
    	
 
    
	
Relevant   Price:
    	
 
    	
On   any Valuation Date, the volume weighted average price per Share for the   regular trading session of the Exchange as displayed under the heading   “Bloomberg VWAP” on Bloomberg Page UTHR.Q <equity> AQR on such   Valuation Date in respect of the period from 9:30 am to 4:00 p.m. (New   York City time) on such Valuation Date (or if such volume weighted average   price is not available, the Calculation Agent’s reasonable, good faith   estimate of such price on such Valuation Date).
    
	
 
    	
 
    	
 
    
	
Settlement   Currency:
    	
 
    	
USD.
    
	
 
    	
 
    	
 
    
	
Other   Applicable Provisions:
    	
 
    	
The   provisions of Sections 9.1(c), 9.8, 9.9, 9.10, 9.11 (except that the Representation   and Agreement contained in Section 9.11 of the Equity Definitions shall   be modified by excluding any representations therein relating to   restrictions, obligations, limitations or requirements under applicable   securities laws as a result of the fact that Counterparty is the Issuer of   the Shares) and 9.12 of the Equity Definitions will be applicable, except   that all references in such provisions to “Physical Settlement” and   “Physically settled” shall be read as references to “Net Share Settlement”   and “Net Share Settled”. “Net Share Settled” in relation to any Warrant means   that Net Share Settlement is applicable to such Warrant.
    
	
 
    	
 
    	
 
    
	
Adjustments:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
In respect of any Component:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Method   of Adjustment:
    	
 
    	
Calculation   Agent Adjustment; provided, however, that the Equity Definitions   shall be amended by replacing the words “diluting or concentrative” in   Sections 11.2(a), 11.2(c) (in two instances) and 11.2(e)(vii) with   the word “material” and by adding the words “or the Transaction” after the words   “theoretical value of the relevant Shares” in Sections 11.2(a),   11.2(c) and 11.2(e)(vii); provided further   that adjustments may be made to account for changes in expected volatility,   expected dividends, expected correlation, expected stock loan rate and   expected liquidity relative to the relevant Share.
    
	
 
    	
 
    	
 
    
	
Extraordinary   Dividend:
    	
 
    	
Any   Dividend (i) that has an ex-dividend date occurring on or after the   Trade Date and on or prior to the date on which Counterparty satisfied all of   its delivery obligations hereunder and (ii) the amount or value of which   differs from the Ordinary Dividend Amount for such Dividend, as determined by   the Calculation Agent.
    
	
 
    	
 
    	
 
    
	
Dividend:
    	
 
    	
Any   dividend or distribution on the Shares (other than any dividend or   distribution of the type described in Sections 11.2(e)(i),   11.2(e)(ii)(A) or 11.2(e)(ii)(B) of the Equity Definitions).
    
	
 
    	
 
    	
 
    
	
Ordinary   Dividend Amount:
    	
 
    	
USD   0.00
    


 

5











 

	
Extraordinary   Events:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
New   Shares:
    	
 
    	
In   the definition of New Shares in Section 12.1(i) of the Equity   Definitions, the text in clause (i) thereof shall be deleted in its   entirety and replaced with “publicly quoted, traded or listed on any of the   New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global   Market (or their respective successors)”.
    
	
 
    	
 
    	
 
    
	
Modified   Calculation Agent Adjustment:
    	
 
    	
If,   in respect of any Merger Event to which Modified Calculation Agent Adjustment   applies, the adjustments to be made in accordance with   Section 12.2(e)(i) of the Equity Definitions would result in   Counterparty being different from the issuer of the Shares, then with respect   to such Merger Event, as a condition precedent to the adjustments   contemplated in Section 12.2(e)(i) of the Equity Definitions,   Counterparty and the issuer of the Shares shall, prior to the Merger Date,   have entered into such documentation containing representations, warranties   and agreements relating to securities law and other issues as requested by   Deutsche that Deutsche has determined, in its reasonable discretion, to be   reasonably necessary or appropriate to allow Deutsche to continue as a party   to the Transaction, as adjusted under Section 12.2(e)(i) of the   Equity Definitions, and to preserve its hedging or hedge unwind activities in   connection with the Transaction in a manner compliant with applicable legal,   regulatory or self-regulatory requirements, or with related policies and   procedures applicable to Deutsche, and if such conditions are not met or if   the Calculation Agent determines that no adjustment that it could make under   Section 12.2(e)(i) of the Equity Definitions will produce a   commercially reasonable result, then the consequences set forth in   Section 12.2(e)(ii) of the Equity Definitions shall apply.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
For   greater certainty, the definition of “Modified Calculation Agent Adjustment”   in Sections 12.2 and 12.3 of the Equity Definitions shall be amended by   adding the following italicized language to the stipulated parenthetical   provision: “(including adjustments to account for changes in expected volatility, expected dividends,   expected correlation, expected stock loan rate or expected liquidity relevant to the   Shares or to the Transaction) from the   Announcement Date to the Merger Date (Section 12.2) or Tender Offer Date   (Section 12.3)”.
    
	
 
    	
 
    	
 
    
	
Announcement   Event:
    	
 
    	
If   an Announcement Event occurs, the Calculation Agent will determine  the economic effect of the Announcement   Event on the theoretical value of each Component of the Transaction   (including without limitation any change in expected volatility, expected   dividends, expected correlation, expected stock loan rate or expected   liquidity relevant to the Shares or to the Transaction) from the potential   Announcement Date to the Expiration Date for such Component and, if such economic   effect is material, the Calculation Agent may adjust the terms of the   Transaction to reflect such economic effect;   provided that notwithstanding the foregoing, if the related Merger   Date or Tender Offer Date, as the case may be, occurs on or prior to the   Valuation Date for such Component, the provisions appearing below opposite   the captions “Consequences of Merger Event” or “Consequences of Tender   Offers”, as the case may be, shall 
    


 

6











 

	
 
    	
 
    	
apply   instead (and, where Cancellation and Payment is applicable, the Determining   Party shall take into account such economic effect in determining the   Cancellation Amount); provided,   further, that if, following the   occurrence of an Announcement Event, there is a public announcement that such   previously announced transaction that could have led to a Merger Event or a   Tender Offer, as the case may be, will not be consummated, the Calculation   Agent will determine the combined economic effect of both the Announcement Event   and such subsequent public announcement on the theoretical value of such   Component (including, without limitation, any change in volatility,   dividends, correlation, stock loan rate or liquidity relevant to the Shares   or to such Component) from the Announcement Date to the date of such   subsequent public announcement for such Component and, if such economic   effect is material, on the date of such subsequent public announcement, the   Calculation Agent may adjust in a commercially reasonable manner the terms of   such Component to reflect such economic effect. “Announcement Event” shall mean the occurrence of a   potential Announcement Date of a Merger Event or Tender Offer, if the Merger   Date or Tender Offer Date does not, or is not anticipated to, occur on or prior   to the Expiration Date for, or any earlier termination of, the relevant   Component.
    
	
Consequences of Merger Events:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
(a) Share-for-Share:
    	
 
    	
Modified   Calculation Agent Adjustment.
    
	
 
    	
 
    	
 
    
	
(b) Share-for-Other:
    	
 
    	
Modified   Calculation Agent Adjustment.
    
	
 
    	
 
    	
 
    
	
(c) Share-for-Combined:
    	
 
    	
Component   Adjustment.
    
	
 
    	
 
    	
 
    
	
Tender   Offer:
    	
 
    	
Applicable
    
	
 
    	
 
    	
 
    
	
Consequences   of Tender Offers:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
(a) Share-for-Share:
    	
 
    	
Modified   Calculation Agent Adjustment.
    
	
 
    	
 
    	
 
    
	
(b) Share-for-Other:
    	
 
    	
Modified   Calculation Agent Adjustment.
    
	
 
    	
 
    	
 
    
	
(c) Share-for-Combined:
    	
 
    	
Component   Adjustment.
    
	
 
    	
 
    	
 
    
	
Nationalization, Insolvency   and 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 be deemed to be the Exchange. For the   avoidance of doubt, the occurrence of any event that is a Merger Event and   would otherwise have been a Delisting will have the 
    


 

7











 

	
 
    	
 
    	
consequence   specified for the relevant Merger Event.
    
	
 
    	
 
    	
 
    
	
Additional   Disruption Events:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Change   in Law:
    	
 
    	
Applicable;   provided that (x) Section 12.9(a)(ii) of the Equity   Definitions is hereby amended (i) by the replacement of the word   “Shares” with “Hedge Positions”; (ii) by adding the phrase “announcement   or statement of or” immediately after the phrase “due to the promulgation of   or” in the third line thereof and adding the phrase “formal or informal”   before the word “interpretation” in the same line; (iii) immediately   following the word “Transaction” in clause (X) thereof, adding the   phrase “in the manner contemplated by the Hedging Party on the Trade Date   (unless another manner of holding, acquiring or disposing of, as applicable,   Hedge Positions relating to such Transaction that is available to Hedging   Party would be commercially reasonable, as reasonably determined by Hedging   Party, and is not illegal)”; and (iv) by 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) any determination as   to whether (A) the adoption of or change in any applicable law or   regulation (including, without limitation, any tax law) or (B) the   promulgation of or any change in or announcement or statement 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 Wall Street   Transparency and Accountability 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 (z) Deutsche may exercise its termination   rights with respect to a “Change in Law” described in clause (Y) of   Section 12.9(a)(ii) of the Equity Definitions only if Deutsche   determines, based upon advice of counsel, that it is generally exercising its   right to terminate as a result of such event with respect to similarly   situated counterparties.
    
	
 
    	
 
    	
 
    
	
Failure   to Deliver:
    	
 
    	
Applicable
    
	
 
    	
 
    	
 
    
	
Insolvency   Filing:
    	
 
    	
Applicable
    
	
 
    	
 
    	
 
    
	
Loss   of Stock Borrow:
    	
 
    	
Applicable
    
	
 
    	
 
    	
 
    
	
Maximum Stock Loan Rate:
    	
 
    	
200   basis points per annum
    
	
 
    	
 
    	
 
    
	
Increased   Cost of Stock Borrow:
    	
 
    	
Applicable
    
	
 
    	
 
    	
 
    
	
Initial Stock Loan Rate:
    	
 
    	
40   basis points per annum
    
	
 
    	
 
    	
 
    
	
Increased   Cost of Hedging:
    	
 
    	
Applicable
    


 

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Hedging   Party:
    	
 
    	
Deutsche   for all applicable Additional Disruption Events
    
	
 
    	
 
    	
 
    
	
Determining   Party:
    	
 
    	
Deutsche   for all applicable Additional Disruption Events
    
	
 
    	
 
    	
 
    
	
Non-Reliance:
    	
 
    	
Applicable
    
	
 
    	
 
    	
 
    
	
Agreements   and Acknowledgements Regarding Hedging Activities:
    	
 
    	
Applicable
    
	
 
    	
 
    	
 
    
	
Additional   Acknowledgements:
    	
 
    	
Applicable
    


 

Mutual Representations: Each of Deutsche and Counterparty represents and warrants to, and agrees with, the other party that:

 

(i)            Tax Disclosure.  Notwithstanding anything to the contrary herein, in the Equity Definitions or in the Agreement, and notwithstanding any express or implied claims of exclusivity or proprietary rights, the parties (and each of their employees, representatives or other agents) are authorized to disclose to any and all persons, beginning immediately upon commencement of their discussions and 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 by either party to the other relating to such tax treatment and tax structure.

 

(ii)           Commodity Exchange Act.  It is an “eligible contract participant” within the meaning of the U.S. Commodity Exchange Act, as amended (the “CEA”).  The Transaction has been subject to individual negotiation by the parties.  The Transaction has not been executed or traded on a “trading facility” as defined in the CEA.  It has entered into the Transaction with the expectation and intent that the Transaction shall be performed to its termination date.

 

(iii)          Securities Act.  It is a “qualified institutional buyer” as defined in Rule 144A under the Securities Act, or an “accredited investor” as defined under the Securities Act.

 

(iv)          Investment Company Act.  It is a “qualified purchaser” as defined under the U.S. Investment Company Act of 1940, as amended.

 

(v)           ERISA.  The assets used in the Transaction (1) are not assets of any “plan” (as such term is defined in Section 4975 of the U.S. Internal Revenue Code (the “Code”)) subject to Section 4975 of the Code or any “employee benefit plan” (as such term is defined in Section 3(3) of the U.S. Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) subject to Title I of ERISA, and (2) do not constitute “plan assets” within the meaning of Department of Labor Regulation 2510.3-101, 29 CFR Section 2510-3-101.

 

Counterparty Representations: In addition to the representations and warranties in the Agreement and those contained elsewhere herein, Counterparty represents, warrants and acknowledges (on the Trade Date unless otherwise specified) that:

 

(i)            (A) Counterparty is acting for its own account, and it has made its own independent decisions to enter into the Transaction and as to whether the Transaction is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary, (B) Counterparty is not relying on any communication (written or oral) of Deutsche or any of its 

 

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affiliates as investment advice or as a recommendation to enter into the Transaction (it being understood that information and explanations related to the terms and conditions of the Transaction shall not be considered investment advice or a recommendation to enter into the Transaction) and (C) no communication (written or oral) received from Deutsche or any of its affiliates shall be deemed to be an assurance or guarantee as to the expected results of the Transaction.

 

(ii)           Counterparty is not entering into the Transaction for the purpose of (i) creating actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for the Shares) or (ii) raising or depressing or otherwise manipulating the price of the Shares (or any security convertible into or exchangeable for the Shares), in either case in violation of Section 9 of the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”).

 

(iii)          Counterparty’s filings under the Securities Act, the Exchange Act, and other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the date of this representation, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.

 

(iv)          Counterparty has not violated any applicable law (including, without limitation, the Securities Act and the Exchange Act) in any material respect in connection with the Transaction.

 

(v)           The representations and warranties of Counterparty set forth in Section 3 of the Agreement and Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of the Trade Date between Counterparty and Deutsche Bank Securities Inc. as representative of the initial purchaser party thereto are true and correct and are hereby deemed to be repeated to Deutsche as if set forth herein.

 

(vi)          The Shares issuable upon exercise of all Warrants (the “Warrant Shares”) have been duly authorized and, when delivered pursuant to the terms of such Transaction, shall be validly issued, fully-paid and non-assessable, and such issuance of the Warrant Shares shall not be subject to any preemptive or similar rights and shall, upon such issuance, be accepted for listing or quotation on the Exchange.

 

(vii)         Counterparty is not as of the Trade Date and as of the date on which Counterparty delivers any Termination Delivery Units, and shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)).

 

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

 

(ix)           Without limiting the generality of Section 13.1 of the Equity Definitions, Counterparty acknowledges that Deutsche is not making any representations or warranties with respect to the treatment of the Transaction under 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, or under any other accounting guidance.

 

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(x)            Counterparty understands,   agrees and acknowledges that no obligations of Deutsche to it hereunder, if   any, shall be entitled to the benefit of deposit insurance and that such   obligations shall not be guaranteed by any affiliate of Deutsche or any governmental   agency.

 
    
	
Counterparty Covenants:  In addition to the covenants in the Agreement and those contained   elsewhere herein, Counterparty hereby covenants that:
    
	
 
    	
(i)            Counterparty   shall promptly provide written notice to Deutsche upon obtaining knowledge of   the occurrence of any event that would constitute an Event of Default, a   Potential Event of Default, a Potential Adjustment Event, a Merger Event or   any other Extraordinary Event; provided, however,   that should Counterparty be in possession of material non-public information   regarding Counterparty, Counterparty shall not communicate such information   to Deutsche.

 
    
	
 
    	
(ii)           Counterparty   shall not (a) violate or (b) take any action, or refrain from   taking any action, that in either case could reasonably be expected to cause   Deutsche or any of its affiliates to violate any applicable law (including,   without limitation, the Securities Act and the Exchange Act) in any material   respect in connection with the Transaction.

 
    
	
 
    	
(iii)          Counterparty   shall deliver to Deutsche an opinion of counsel, dated as of the Effective   Date and reasonably acceptable to Deutsche in form and substance, with   respect to the matters set forth in Section 3(a) of the Agreement   and such other matters as Deutsche may reasonably request, and containing   customary assumptions, qualifications and exceptions reasonably acceptable to   Deutsche.

 
    
	
Miscellaneous:

 
    
	
 
    	
Effectiveness.  If, on or prior to the Effective Date,   Deutsche reasonably determines that it is advisable to cancel the Transaction   because of concerns that Deutsche’s related hedging activities could be   viewed as not complying with applicable securities laws, rules or   regulations, the Transaction shall be cancelled and shall not become   effective, and neither party shall have any obligation to the other party in   respect of the Transaction.

 
    
	
 
    	
Netting   and Set-Off.  Except for   the Accelerated Share Repurchase transaction entered between the parties on   the date hereof, the parties hereto agree that the Transaction shall not be   subject to netting or set off with any other transaction.

 
    
	
 
    	
Qualified   Financial Contracts.  It   is the intention of the parties that, in respect of Counterparty, (a) the   Transaction shall constitute a “qualified financial contract” within the   meaning of 12 U.S.C. Section 1821(e)(8)(D)(i) and (b) a   Non-defaulting Party’s rights under Sections 5 and 6 of the Agreement   constitute rights of the kind referred to in 12 U.S.C. Section 1821(e)(8)(A).

 
    
	
 
    	
Method of Delivery.  Whenever   delivery of funds or other assets is required hereunder by or to   Counterparty, such delivery shall be effected through Agent.  In addition, all notices, demands and   communications of any kind relating to the Transaction between Deutsche and   Counterparty shall be transmitted exclusively through Agent.

 
    
	
 
    	
Status of Claims in Bankruptcy.  Deutsche acknowledges   and agrees that this Confirmation is not intended to convey to Deutsche   rights with respect to the Transaction that are senior to the claims of   common stockholders in any U.S. bankruptcy proceedings of Counterparty; provided that nothing herein shall limit   or shall be deemed to limit Deutsche’s right to pursue remedies in the event   of a breach by
    


 

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Counterparty   of its obligations and agreements with respect to the Transaction either   outside of a bankruptcy proceeding or (subject only to the limitation on   seniority in the preceding clause) within a bankruptcy proceeding; provided, further,   that nothing herein shall limit or shall be deemed to limit Deutsche’s rights   in respect of any transactions other than the Transaction.
    
	
 
    	
 
    
	
 
    	
No   Collateral.    Notwithstanding any provision of this Confirmation, the Agreement,   Equity Definitions, or any other agreement between the parties to the   contrary, the obligations of Counterparty under the Transaction are not   secured by any collateral.

 
    
	
 
    	
Securities   Contract; Swap Agreement.  The parties hereto agree and acknowledge   that Deutsche is a “financial institution,” “swap participant” and “financial   participant” within the meaning of Sections 101(22), 101(53C) and 101(22A) of   the Bankruptcy Code.  The parties   hereto further agree and acknowledge (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” or a “transfer” 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,” a “payment amount” or “other transfer   obligation” within the meaning of Section 362 of the Bankruptcy Code and   a “transfer” within the meaning of Section 546 of the Bankruptcy Code,   and (B) that Deutsche is entitled to the protections afforded by, among   other sections, Section 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.

 
    
	
 
    	
Alternative   Calculations and Payment on Early Termination and on Certain Extraordinary   Events.  If one   party owes the other party any amount in connection with the Transaction   pursuant to Sections 12.2, 12.3, 12.6, 12.7 or 12.9 of the Equity Definitions   (except in the case of an Extraordinary Event in which the consideration or   proceeds to be paid to holders of Shares as a result of such event consists   solely of cash) or pursuant to Section 6(d)(ii) of the Agreement   (except in the case of an Event of Default in which Counterparty is the   Defaulting Party or a Termination Event in which Counterparty is the Affected   Party, other than (x) an Event of Default of the type described in Section 5(a)(iii),   (v), (vi) or (vii) of the Agreement or (y) a Termination Event   of the type described in Section 5(b)(i), (ii), (iii), (iv), (v) or   (vi) of the Agreement that in the case of either (x) or (y) resulted   from an event or events outside Counterparty’s control) (if owed by   Counterparty, a “Counterparty Payment   Obligation” and if owed by Deutsche, a “Deutsche   Payment Obligation”), Counterparty shall have the right, in its   sole discretion, to satisfy any such Counterparty Payment Obligation or to   require Deutsche to satisfy any Deutsche Payment Obligation by delivery of   Termination Delivery Units (as defined below) by giving irrevocable   telephonic notice to Deutsche, confirmed in writing within one Scheduled   Trading Day, between the hours of 9:00 a.m. and 4:00 p.m. New York   time on the Early Termination Date or other date the transaction is   terminated, as applicable (“Notice of Counterparty   Termination Delivery”).    Within a commercially reasonable period of time following receipt of a   Notice of Counterparty Termination Delivery, Counterparty shall deliver to   Deutsche a number of Termination Delivery Units having a cash value equal to   the amount of such Counterparty Payment Obligation or Deutsche shall deliver   to Counterparty a number of Termination Delivery Units having a cash value   equal to the amount of such Deutsche Payment Obligation, as applicable (such   number of Termination Delivery Units to be delivered to be determined by the   Calculation Agent as the number of whole Termination Delivery Units that   could be sold over a commercially reasonable period of time to generate   proceeds (or purchased over a commercially reasonable period with an amount,   as applicable) equal to the cash equivalent of such payment obligation).  In addition, if, in the good faith   reasonable judgment of Deutsche, for any reason, the Termination Delivery   Units deliverable pursuant to this paragraph would not be immediately freely   transferable by Deutsche under Rule 144 or any successor provision, then   Deutsche may elect either to (x) accept delivery of such Termination   Delivery Units notwithstanding any restriction on transfer or (y) require   that such delivery take place pursuant to the provisions set forth opposite   the caption “Registration/Private Placement Procedures”   below.  If the provisions set forth in   this paragraph are
    


 

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applicable,   the provisions of Sections 9.8, 9.9, 9.10, 9.11 (modified as described above)   and 9.12 of the Equity Definitions shall be applicable, except that all   references to “Shares” shall be read as references to “Termination Delivery   Units.”
    
	
 
    	
 
    
	
 
    	
“Termination Delivery Unit” means (a) in the case of a   Termination Event, an Event of Default or an Extraordinary Event (other than   an Insolvency, Nationalization, Merger Event or Tender Offer), one Share or (b) in   the case of an Insolvency, Nationalization, Merger Event or Tender Offer, 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, Merger Event or Tender Offer.  If a Termination Delivery Unit consists of   property other than cash or New Shares and Counterparty provides irrevocable   written notice to the Calculation Agent on or prior to the Closing Date that   it elects to deliver (or receive) cash, New Shares or a combination thereof   (in such proportion as Counterparty designates) in lieu of such other   property, the Calculation Agent shall replace such property with cash, New   Shares or a combination thereof as components of a Termination Delivery Unit   in such amounts, as determined by the Calculation Agent in its discretion by   commercially reasonable means, as shall have a value equal to the value of   the property so replaced.  If such   Insolvency, Nationalization, Merger Event or Tender Offer 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.

 
    
	
 
    	
Registration/Private   Placement Procedures.  If,   in the reasonable opinion of Deutsche, following any delivery of Shares or   Termination Delivery Units to Deutsche hereunder, such Shares or Termination   Delivery Units would be in the hands of Deutsche subject to any applicable   restrictions with respect to any registration or qualification requirement or   prospectus delivery requirement for such Shares or Termination Delivery Units   pursuant to any applicable federal or state securities law (including,   without limitation, any such requirement arising under Section 5 of the   Securities Act as a result of such Shares or Termination Delivery Units being   “restricted securities”, as such term is defined in Rule 144) (such   Shares or Termination Delivery Units, “Restricted Shares”),   then delivery of such Restricted Shares shall be effected pursuant to either   clause (i) or (ii) of Annex A hereto at the election of   Counterparty, unless waived by Deutsche. Notwithstanding the foregoing,   solely in respect of any Warrants exercised or deemed exercised on any   Exercise Date, Counterparty shall elect, prior to the first Settlement Date   for the first Exercise Date, a Private Placement Settlement (as defined in   Annex A hereto) or Registration Settlement (as defined in Annex A hereto) for   all deliveries of Restricted Shares for all such Exercise Dates which   election shall be applicable to all Settlement Dates for such Warrants and   the procedures in clause (i) or clause (ii) of Annex A hereto shall   apply for all such delivered Restricted Shares on an aggregate basis   commencing after the final Settlement Date for such Warrants. The Calculation   Agent shall make commercially reasonable adjustments to settlement terms and   provisions under this Confirmation to reflect a single Private Placement   Settlement or Registration Settlement for such aggregate Restricted Shares   delivered hereunder.  If the Private   Placement Settlement or the Registration Settlement shall not be effected as   set forth in clauses (i) or (ii) of Annex A, as applicable, then   failure to effect such Private Placement Settlement or such Registration   Settlement shall constitute an Event of Default with respect to which   Counterparty shall be the Defaulting Party.

 
    
	
 
    	
Share   Deliveries.    Counterparty acknowledges and agrees that, to the extent that Deutsche   is not then an affiliate, as such term is used in Rule 144, of   Counterparty and has not been such an affiliate of Counterparty for 90 days   (it being understood that Deutsche shall not be considered such an affiliate   of Counterparty solely by reason of its right to receive Shares pursuant to a   Transaction hereunder), any Shares or Termination Delivery Units delivered   hereunder at any time after one year from the Premium Payment Date shall be   eligible for resale under Rule 144 or any successor provision, and   Counterparty agrees to promptly remove, or cause the transfer agent for such   Shares or Termination Delivery Units to remove, any legends referring to any   restrictions on resale under the Securities Act from the certificates   representing such Shares or Termination Delivery Units.  Counterparty further agrees that with respect   to any Shares or Termination Delivery Units delivered hereunder at any time   after 6 months from the Premium Payment Date but prior to 1 year from the   Premium Payment Date, to the extent that
    


 

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Counterparty   then satisfies the current information requirement of Rule 144,   Counterparty shall promptly remove, or cause the transfer agent for such   Shares or Termination Delivery Units to remove, any legends referring to any   such restrictions or requirements from the certificates representing such Share   or Termination Delivery Units upon delivery by Deutsche to Counterparty or   such transfer agent of any customary seller’s and broker’s representation   letters in connection with resales of such Shares or Termination Delivery   Units pursuant to Rule 144, without any further requirement for the   delivery of any certificate, consent, agreement, opinion of counsel, notice   or any other document, any transfer tax stamps or payment of any other amount   or any other action by Deutsche.    Counterparty further agrees and acknowledges that Deutsche shall run a   holding period under Rule 144 with respect to the Warrants and/or any   Shares or Termination Delivery Units delivered hereunder notwithstanding the   existence of any other transaction or transactions between Counterparty and   Deutsche relating to the Shares.    Counterparty further agrees that Shares or Termination Delivery Units   delivered hereunder prior to the date that is 6 months from the Premium   Payment Date may be freely transferred by Deutsche to its affiliates, and   Counterparty shall effect such transfer without any further action by   Deutsche.  Notwithstanding anything to   the contrary herein, Counterparty agrees that any delivery of Shares or   Termination Delivery Units shall be effected by book-entry transfer through   the facilities of the Clearance System if, at the time of such delivery, the   certificates representing such Shares or Termination Delivery Units would not   contain any restrictive legend as described above.  Notwithstanding anything to the contrary herein,   to the extent the provisions of Rule 144 or any successor rule are   amended, or the applicable interpretation thereof by the Securities and   Exchange Commission or any court changes after the Trade Date, the agreements   of Counterparty herein shall be deemed modified to the extent necessary, in   the opinion of outside counsel of Counterparty, to comply with Rule 144,   including Rule 144(b) or any successor provision, as in effect at   the time of delivery of the relevant Shares or Termination Delivery Units.
    
	
 
    	
 
    
	
 
    	
No   Material Non-Public Information.  On each day during the period beginning on   the Trade Date and ending on the day on which Deutsche has informed   Counterparty in writing that Deutsche has completed all purchases or sales of   Shares or other transactions to hedge initially its exposure with respect to   the Transaction, Counterparty represents and warrants to Deutsche that it is   not aware of any material nonpublic information concerning itself or the   Shares.

 
    
	
 
    	
Limit   on Beneficial Ownership.  Notwithstanding any other provisions   hereof, Deutsche may not exercise   any Warrant hereunder, Automatic Exercise shall not apply with respect   thereto, and no delivery hereunder (including pursuant to provisions opposite   the headings “Alternative Calculations and   Counterparty Payments on Early Termination and on Certain Extraordinary   Events,” “Registration/Private   Placement Procedures,”   “Limitation on Delivery of Shares”   or Annex A) shall be made, to the extent (but only to the extent) that the   receipt of any Shares upon such exercise or delivery would result in the   Equity Percentage (as defined below) exceeding 9% or an Ownership Trigger (as   defined below) being met.  Any   purported delivery hereunder shall be void and have no effect to the extent   (but only to the extent) that such delivery would result in the Equity   Percentage exceeding 9% or an Ownership Trigger being met.  If any delivery owed to Deutsche or   exercise hereunder is not made, in whole or in part, as a result of this   provision, Counterparty’s obligation to make such delivery and Deutsche’s   right to exercise a Warrant shall not be extinguished and Counterparty shall   make such delivery as promptly as practicable after, but in no event later   than one Clearance System Business Day after, Deutsche gives notice to   Counterparty that such exercise or delivery would not result in the Equity   Percentage exceeding 9% or an Ownership Trigger being met.

 
    
	
 
    	
Repurchase   Notices.  On any day   Counterparty effects any repurchases of Shares (including pursuant to the   Share buy-back program publicly disclosed on October 11, 2011 in which   Counterparty’s board of directors approved the buy-back of Shares worth not   more than USD300,000,000 during the period ending October 3, 2013),   Counterparty shall promptly provide Deutsche with a written notice of such   repurchase (a “Repurchase Notice”) if,   following such repurchase, the Warrant Equity Percentage (as defined below)   is (a) equal to or greater than 11% and (b) greater by 0.5% or more   than the Warrant Equity Percentage set forth in the immediately preceding   Repurchase Notice (or, in the case of the first
    


 

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such   Repurchase Notice, greater by 0.5% or more than the Warrant Equity Percentage   as of the date hereof).  The “Warrant Equity Percentage” as of any day is the fraction,   expressed as a percentage, (1) the numerator of which is the “Number of   Warrants”, and (2) the denominator of which is the number of Shares   outstanding on such day.  Counterparty   agrees to indemnify and hold harmless Deutsche and its affiliates and their   respective officers, directors, employees, affiliates, advisors, agents and   controlling person (each, an “Indemnified   Person”) from and against any and all losses (including losses   relating to Deutsche’s hedging activities as a consequence of becoming, or of   the risk of becoming, an “insider” as defined under Section 16 of the   Exchange Act, including without limitation, any forbearance from hedging   activities or cessation of hedging activities and any losses in connection   therewith with respect to this Transaction), claims, damages, judgments,   liabilities and expense (including reasonable attorney’s fees), joint or   several, which an Indemnified Person actually may become subject to, as a   result of Counterparty’s failure to provide Deutsche with a Repurchase Notice   on the day and in the manner specified herein, and to reimburse, upon written   request, each of such Indemnified Persons for any reasonable legal or other   expenses incurred in connection with investigating, preparing for, providing   testimony or other evidence in connection with or defending any of the   foregoing.  If any suit, action,   proceeding (including any governmental or regulatory investigation), claim or   demand shall be brought or asserted against the Indemnified Person, such   Indemnified Person shall promptly notify Counterparty in writing, and   Counterparty, upon request of the Indemnified Person, shall retain counsel   reasonably satisfactory to the Indemnified Person to represent the   Indemnified Person and any others Counterparty may designate in such   proceeding and shall pay the fees and expenses of such counsel related to   such proceeding.  Counterparty shall be   relieved from liability to the extent that the Indemnified Person fails   promptly to notify Counterparty of any action commenced against it in respect   of which indemnity may be sought hereunder; provided   that failure to notify Counterparty (x) shall not relieve Counterparty   from any liability hereunder to the extent it is not materially prejudiced as   a result thereof and (y) shall not, in any event, relieve Counterparty   from any liability that it may have otherwise than on account of this   indemnity agreement.  Counterparty   shall not be liable for any settlement of any proceeding effected without its   written consent, but if settled with such consent or if there be a final   judgment for the plaintiff, Counterparty agrees to indemnify any Indemnified   Person from and against any loss or liability by reason of such settlement or   judgment.  Counterparty shall not,   without the prior written consent of the Indemnified Person, effect any   settlement of any pending or threatened proceeding in respect of which any   Indemnified Person is or could have been a party and indemnity could have   been sought hereunder by such Indemnified Person, unless such settlement   includes an unconditional release of such Indemnified Person from all   liability on claims that are the subject matter of such proceeding on terms   reasonably satisfactory to such Indemnified Person.  If the indemnification provided for in this   paragraph is unavailable to an Indemnified Person or insufficient in respect   of any losses, claims, damages or liabilities referred to therein, then   Counterparty, in lieu of indemnifying such Indemnified Person thereunder, shall   contribute to the amount paid or payable by such Indemnified Person as a   result of such losses, claims, damages or liabilities.  The remedies provided for in this paragraph   are not exclusive and shall not limit any rights or remedies that may otherwise   be available to any Indemnified Person at law or in equity.  The indemnity and contribution agreements   contained in this paragraph shall remain operative and in full force and   effect regardless of the termination of the Transaction.
    


 

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Limitation   On Delivery of Shares.    Notwithstanding anything herein or in the Agreement to the contrary,   in no event shall Counterparty be required to deliver Shares in connection   with the Transaction in excess of 8,911,721 Shares (the “Maximum Delivery Amount”).  Counterparty represents and warrants (which   shall be deemed to be repeated on each day that the Transaction is   outstanding) that the Maximum Delivery Amount is equal to or less than the   number of authorized but unissued Shares of Counterparty that are not   reserved for future issuance in connection with transactions in the Shares   (other than the Transaction) on the date of the determination of the Maximum   Delivery Amount (such Shares, the “Available   Shares”).  In the event   Counterparty shall not have delivered the full number of Shares otherwise   deliverable as a result of this paragraph (the resulting deficit, the “Deficit Shares”), Counterparty shall be   continually obligated to deliver, from time to time until the full number of   Deficit Shares have been delivered pursuant to this paragraph, Shares when,   and to the extent, that (i) Shares are repurchased, acquired or   otherwise received by Counterparty or any of its subsidiaries after the Trade   Date (whether or not in exchange for cash, fair value or any other   consideration), (ii) authorized and unissued Shares reserved for   issuance in respect of other transactions prior to such date which prior to   the relevant date become no longer so reserved and (iii) Counterparty additionally   authorizes any unissued Shares that are not reserved for other   transactions.  Counterparty shall   immediately notify Deutsche of the occurrence of any of the foregoing events   (including the number of Shares subject to clause (i), (ii) or (iii) and   the corresponding number of Shares to be delivered) and promptly deliver such   Shares thereafter.  Counterparty shall   not enter into any transaction, or take any other action, that would, but for   the “Strike Price Adjustment” provision below, result in an adjustment to   Maximum Delivery Amount that would result in the issuance of a number of   Shares that would require stockholder approval under the continued listing   standards of the Exchange without having obtained prior stockholder approval.  Notwithstanding the provisions of Section 5(a)(ii) of   the Agreement, in the event of a failure by Counterparty to comply with the   agreement set forth in this provision, there shall be no grace period for   remedy of such failure.

 
    
	
 
    	
Strike   Price Adjustment.  Notwithstanding   anything to the contrary in the Agreement, this Confirmation or the Equity   Definitions (but without limiting Deutsche’s right to adjust any variable   relevant to the exercise, settlement, payment or other terms of the   Transaction, other than the Strike Price and the Warrant Entitlement), in no   event shall the Strike Price or Warrant Entitlement be adjusted to the extent   that, after giving effect to such adjustment, the Strike Price divided by the Warrant Entitlement would be less than USD   39.74, in each case, other than any such adjustment in connection with stock   splits or similar changes in Counterparty’s capitalization (such as those   described in the definitions of Potential Adjustment Event and Merger Event   under the Equity Definitions (without any modification to the Equity   Definitions pursuant to this Confirmation)).    For the avoidance of doubt, this “Strike Price Adjustment” provision   shall not be subject to any adjustment or modification under the Equity   Definitions or this Confirmation.
    
	
 
    	
 
    
	
 
    	
Additional   Termination Event.  The occurrence of any of the following shall constitute an Additional   Termination Event with respect to which (1) Counterparty shall be the   sole Affected Party and (2) the Transaction shall be the sole Affected   Transaction; provided that with   respect to any Additional Termination Event, Deutsche may choose to treat   part of the Transaction as the sole Affected Transaction, and, upon   termination of the Affected Transaction, a Transaction with terms identical   to those set forth herein except with a Number of Warrants equal to the   unaffected number of Warrants shall be treated for all purposes as the   Transaction, which shall remain in full force and effect:

 

(i)            Deutsche reasonably   determines that it is advisable to terminate a portion of the Transaction   (the “Affected Portion”) so that   Deutsche’s related hedging activities will comply with applicable securities   laws, rules or regulations; provided   that, notwithstanding the foregoing provisions of this Section, Deutsche   shall treat only the Affected Portion of the Transaction as the Affected   Transaction (it being understood that the Affected Portion may be 100%);

 

(ii)           The Shares are not   approved for listing on the New York Stock Exchange, The NASDAQ Global Select   Market or The NASDAQ Global Market (or any of their respective successors);

 
    


 

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(iii)          any “person” or “group”   (as such terms are used for purposes of Sections 13(d) and 14(d) of   the Exchange Act or any successor provisions, including any group acting for   the purpose of acquiring, holding, voting or disposing of securities within   the meaning of Rule 13d-5(b)(1) under the Exchange Act or any   successor provision) is or becomes the “beneficial owner” (as that term   is used in Rule 13d-3 under the Exchange Act as in effect on the   Effective Date, except that the number of shares of Counterparty’s voting   stock will be deemed to include, in addition to all outstanding shares of   Counterparty’s voting stock and shares of voting stock not outstanding that   are subject to options, warrants, rights to purchase or conversion privileges   exercisable within 60 days of the date of determination (“unissued shares”) deemed to be held by   the “person” or “group” or other person with respect to which the determination   is being made, all unissued shares deemed to be held by all other persons), directly or indirectly, of shares   representing 50% or more of the total voting power of all outstanding classes   of Counterparty’s capital stock or other interests normally entitled (without   regard to the occurrence of any contingency) to vote in the election of the   board of directors, managers or trustees (“voting   stock”) or has the power,   directly or indirectly, to elect a majority of the members of Counterparty’s   board of directors, unless the exception provided in clause (iv)(2) below   applies;

 

(iv)          Counterparty   consolidates with, consummates a binding share exchange with, or merges with   or into, another person, or Counterparty sells, assigns, conveys, transfers,   leases or otherwise disposes of all or substantially all of its assets, or   any person consolidates with, or merges with or into, Counterparty, in any   such event, other than any transaction:

 

(1) pursuant to which the persons that   “beneficially owned,” directly or indirectly, the shares of Counterparty’s   voting stock immediately prior to such transaction “beneficially own,”   directly or indirectly, shares of Counterparty’s voting stock representing at   least a majority of the total voting power of all outstanding classes of   voting stock of the surviving or transferee person and such holders’   proportional voting power immediately after such transaction vis-à-vis each   other with respect to the securities they receive in such transaction shall   be in substantially the same proportions as their respective voting power   vis-à-vis each other immediately prior to such transaction; or

 

(2) in which at least 90% of the   consideration paid for the Shares (other than cash payments for fractional   shares or pursuant to dissenters’ appraisal rights) consists of shares of   common stock traded on the New York Stock Exchange, The NASDAQ Global Market   or The NASDAQ Global Select Market (or any of their respective successors)   (or which will be so traded immediately following such transaction)

 

(v)           (a) individuals who   on the Effective Date constituted Counterparty’s board of directors and (b) any   new directors whose election to Counterparty’s board of directors or whose   nomination for election by Counterparty’s stockholders was approved by at   least a majority of the directors at the time of such election or nomination   still in office either who were directors on the Effective Date or whose   election or nomination for election was previously so approved, cease for any   reason to constitute a majority of Counterparty’s board of directors; or

 

(vi)          the holders of   Counterparty’s capital stock approve any plan or proposal for liquidation or   dissolution of Counterparty.
    
	
 
    	
 
    
	
 
    	
Transfer   or Assignment.    Notwithstanding any provision of the Agreement to the contrary,   Deutsche may, subject to applicable law, freely transfer and assign all of   its rights and obligations under the Transaction without the consent of   Counterparty.  Deutsche shall notify   Counterparty of any transfer or assignment made hereunder.

 

If,   as determined in Deutsche’s sole reasonable discretion based on advice of   counsel, (a) at any time (1) the Equity Percentage exceeds 8.5% or (2) Deutsche,   Deutsche Group (as defined below) or any person whose ownership position   would be aggregated with that of Deutsche or Deutsche Group (Deutsche,
    


 

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Deutsche   Group or any such person, a “Deutsche Person”)   under Section 203 of the Delaware General Corporation Law (the “DGCL Takeover Statute”) or other federal,   state or local (including non-U.S.) 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, or could be   reasonably viewed as meeting any of the foregoing, in excess of a number of   Shares equal to (x) the number of Shares that would give rise to   reporting, registration, filing or notification obligations or other   requirements (including obtaining prior approval by a state, federal or   non-U.S. regulator) of a Deutsche Person under Applicable Laws (including,   without limitation, “interested shareholder” or “acquiring Person” status   under the DGCL Takeover Statute) and with respect to which such requirements   have not been met or the relevant approval has not been received (this clause   (2)(x), the “Ownership Trigger”)   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”), and (b) Deutsche is unable, after commercially   reasonable efforts, to effect a transfer or assignment on pricing and terms   and within a time period reasonably acceptable to it of all or a portion of   this Transaction pursuant to the preceding paragraph such that an Excess   Ownership Position no longer exists, Deutsche may designate any Scheduled   Trading Day as an Early Termination Date with respect to a portion (the “Terminated Portion”) of this Transaction, such that an   Excess Ownership Position no longer exists following such partial   termination; provided,  however,   that Deutsche agrees to use commercially reasonable efforts to establish and   maintain its Hedge Positions in a manner that will not cause an Excess Ownership   Position to arise.  In the event that   Deutsche so designates an Early Termination Date with respect to a portion of   this Transaction, a payment shall be made pursuant to Section 6 of the   Agreement as if (i) an Early Termination Date had been designated in   respect of a Transaction having terms identical to this Transaction and a   Number of Warrants equal to the Terminated Portion (allocated among the   Components thereof in the discretion of Deutsche), (ii) Counterparty   shall be the sole Affected Party with respect to such partial termination and   (iii) such Transaction shall be the only Terminated Transaction (and,   for the avoidance of doubt, the provisions set forth under the caption “Alternative Calculations and Counterparty Payment on   Early Termination and on Certain Extraordinary Events” shall apply   to any amount that is payable by Counterparty to Deutsche pursuant to this   sentence).  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   Deutsche and any of its affiliates subject to aggregation with Deutsche 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 Deutsche   (collectively, “Deutsche Group”)   “beneficially own” (within the meaning of Section 13 of the Exchange   Act) without duplication on such day (or, to the extent that the equivalent   calculation under Section 16 of the Exchange Act and the rules and   regulations thereunder results in a higher number, such number) and (B) the   denominator of which is the number of Shares outstanding on such day.

 

Designation   by Deutsche.    Notwithstanding any other provision in this Confirmation to the   contrary requiring or allowing Deutsche to purchase, sell, receive or deliver   any shares or other securities to or from Counterparty, Deutsche may   designate any of its affiliates to purchase, sell, receive or deliver such   shares or other securities and otherwise to perform Deutsche’s obligations in   respect of the Transaction and any such designee may assume such   obligations.  Deutsche shall be   discharged of its obligations to Counterparty to the extent of any such   performance.
    
	
 
    	
 
    
	
 
    	
Amendments   to Equity Definitions.  (a) Section 12.9(b)(iv) of   the Equity Definitions is hereby amended by:    (i) deleting (1) subsection (A) in its entirety, (2) the   phrase “or (B)” following subsection (A) and (3) the phrase “in   each case” in subsection (B); (ii) replacing “will lend” with “lends” in   subsection (B); and (iii) deleting the phrase “neither the Non-Hedging   Party nor the Lending Party lends Shares in the amount of the Hedging Shares   or” in the penultimate sentence; and (b) Section 12.9(b)(v) of   the Equity Definitions is hereby amended by:    (i) adding the word “or” immediately before subsection “(B)” and   deleting the comma at the end of subsection (A); (ii) (1) deleting   subsection (C) in its entirety, (2) deleting the word “or”   immediately preceding subsection (C) and (3) deleting the   penultimate sentence in its entirety and replacing it with the sentence “The   Hedging Party will determine the Cancellation
    


 

18











 

	
 
    	
Amount payable by one party to the other”; and   (iii) deleting subsection (X) in its entirety and the words “or   (Y)” immediately following subsection (X).
    
	
 
    	
 
    
	
 
    	
Tax Matters.  For the purposes of Section 3(f) of   the Agreement, Deutsche represents that, as of the time any payment is made   after December 31, 2012, (i) if it is a “foreign financial   institution” within the meaning of section 1471(d)(4) of the Internal   Revenue Code of 1986 as amended (the “Code”),   it meets the requirements of section 1471(b) of the Code and has not   elected the application of section 1471(b)(3) of the Code, and (ii) if   it is a “non-financial foreign entity” within the meaning of section 1472(d) of   the Code, it meets the requirements of section 1472(b) of the Code,   unless one or more of the exceptions of Code section 1472(c) are   applicable with respect to such payment.    The parties hereto agree that for the Transaction “Indemnifiable Tax”   shall not include any Tax imposed pursuant to section 1471 or 1472 of the   Code.

 
    
	
 
    	
Matters Related to Agent.  Each party agrees and   acknowledges that (i) Agent acts solely as agent on a disclosed basis   with respect to the Transaction, and (ii) Agent has no obligation, by   guaranty, endorsement or otherwise, with respect to the obligations of either   Counterparty or Deutsche hereunder, either with respect to the delivery of   cash or Shares, either at the beginning or the end of the Transaction.  In this regard, each of Counterparty and   Deutsche acknowledges and agrees to look solely to the other for performance   hereunder, and not to Agent.

 
    
	
 
    	
Severability;   Illegality.  If   compliance by either party with any provision of the Transaction would be   unenforceable or illegal, (a) the parties shall negotiate in good faith   to resolve such unenforceability or illegality in a manner that preserves the   economic benefits of the transactions contemplated hereby and (b) the   other provisions of the Transaction shall not be invalidated, but shall   remain in full force and effect.

 
    
	
 
    	
Waiver   of Jury Trial.  EACH PARTY   WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE   TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING RELATING TO   THE TRANSACTION.  EACH PARTY (I) CERTIFIES   THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF 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 THE TRANSACTION,   AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS   PROVIDED HEREIN.

 
    


 

Governing law:     The law of the State of New York.

 

Contact information. For purposes of the Agreement (unless otherwise specified in the Agreement), the addresses for notice to the parties shall be:

 

(a) Counterparty

 

United Therapeutics Corporation

1040 Spring St.
 Silver Spring, MD 20910
 Attention: John Ferrari, Chief Financial Officer and Treasurer
 Fax:  (301) 608-3049

 

(b) Deutsche

Deutsche Bank AG, London Branch

c/o Deutsche Bank Securities Inc.

60 Wall Street 
 New York, NY 10005

 

19











 

	
Attention:
    	
 
    	
Andrew   Yaeger
    
	
 
    	
 
    	
Faiz   Khan
    
	
 
    	
 
    	
 
    
	
Telephone:
    	
 
    	
(212)   250-2717
    
	
 
    	
 
    	
(212)   250-0668
    
	
 
    	
 
    	
 
    
	
Email:
    	
 
    	
andrew.yaeger@db.com
    
	
 
    	
 
    	
faiz.khan@db.com
    


 

20












 

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.

 

Counterparty hereby agrees to check this Confirmation and to confirm that the foregoing correctly sets forth the terms of the Transaction by signing in the space provided below and returning to Deutsche a facsimile of the fully-executed Confirmation to Deutsche at 44 113 336 2009. Originals shall be provided for your execution upon your request.

 

We are very pleased to have executed the Transaction with you and we look forward to completing other transactions with you in the near future.

 

 

Very truly yours,

 

DEUTSCHE BANK AG, LONDON BRANCH

 

 

	
By:
    	
/s/   Michael Sanderson
    	
 
    
	
 
    	
Name:
    	
Michael   Sanderson
    	
 
    
	
 
    	
Title:
    	
Managing   Director
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
/s/   Lars Kestner
    	
 
    
	
 
    	
Name:
    	
Lars   Kestner
    	
 
    
	
 
    	
Title:
    	
Managing   Director
    	
 
    


 

 

DEUTSCHE BANK SECURITIES INC.,

acting solely as Agent in connection with this Transaction

 

 

	
By:
    	
/s/   Michael Sanderson
    	
 
    
	
 
    	
Name:
    	
Michael   Sanderson
    	
 
    
	
 
    	
Title:
    	
Managing   Director
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
/s/   Lars Kestner
    	
 
    
	
 
    	
Name:
    	
Lars   Kestner
    	
 
    
	
 
    	
Title:
    	
Managing   Director
    	
 
    


 

 

Counterparty hereby agrees to, accepts and confirms the terms of the foregoing as of the Trade Date.

 

UNITED THERAPEUTICS CORPORATION

 

	
By:
    	
/s/   John Ferrari
    	
 
    
	
 
    	
Name:
    	
John   Ferrari
    	
 
    
	
 
    	
Title:
    	
CFO
    	
 
    


 

[Signature Page to Warrant]

 











 

ANNEX A

 

Registration Settlement and Private Placement Settlement

 

(i)            If Counterparty elects to settle the Transaction pursuant to this clause (i) (a “Private Placement Settlement”), then delivery of Restricted Shares by Counterparty shall be effected in customary private placement procedures with respect to such Restricted Shares reasonably acceptable to Deutsche; provided that Counterparty may not elect a Private Placement Settlement if, on the date of its election, it has taken, or caused to be taken, any action that would make unavailable either the exemption pursuant to Section 4(2) of the Securities Act for the sale by Counterparty to Deutsche (or any affiliate designated by Deutsche) of the Restricted Shares or the exemption pursuant to Section 4(1) or Section 4(3) of the Securities Act for resales of the Restricted Shares by Deutsche (or any such affiliate of Deutsche). The Private Placement Settlement of such Restricted Shares shall include customary representations, covenants, blue sky and other governmental filings and/or registrations, indemnities to Deutsche, due diligence rights (for Deutsche or any buyer of the Restricted Shares designated by Deutsche), opinions and certificates, and such other documentation as is customary for private placement agreements of similar size, all reasonably acceptable to Deutsche. In the event of a Private Placement Settlement, the Net Share Settlement Amount or the Counterparty Payment Obligation, respectively, shall be deemed to be the Net Share Settlement Amount or the Counterparty Payment Obligation, respectively, plus an additional amount (determined from time to time by the Calculation Agent in its commercially reasonable judgment) attributable to interest that would be earned on such Net Share Settlement Amount or the Counterparty Payment Obligation, respectively, (increased on a daily basis to reflect the accrual of such interest and reduced from time to time by the amount of net proceeds received by Deutsche as  provided herein) at a rate equal to the open Federal Funds Rate plus 50 basis points per annum for the period from, and including, such Settlement Date or the date on which the Counterparty Payment Obligation is due, respectively, to, but excluding, the related date on which all the Restricted Shares have been sold and calculated on an Actual/360 basis.

 

(ii)           If Counterparty elects to settle the Transaction pursuant to this clause (ii) (a “Registration Settlement”), then Counterparty shall promptly (but in any event no later than the beginning of the Resale Period) file and use its reasonable best efforts to make effective under the Securities Act a registration statement or supplement or amend an outstanding registration statement in form and substance reasonably satisfactory to Deutsche, to cover the resale of such Restricted Shares (and any Make-whole Shares) in accordance with customary resale registration procedures, including covenants, conditions, representations, underwriting discounts (if applicable), commissions (if applicable), indemnities, due diligence rights, opinions and certificates, and such other documentation as is customary for equity resale underwriting agreements, all reasonably acceptable to Deutsche. If Deutsche, in its sole reasonable discretion, is not satisfied with such procedures and documentation, Private Placement Settlement shall apply. If Deutsche is satisfied with such procedures and documentation, it shall sell the Restricted Shares (and any Make-whole Shares) pursuant to such registration statement during a period (the “Resale Period”) commencing on the Exchange Business Day following delivery of such Restricted Shares (and any Make-whole Shares) and ending on the earliest of (i) the Exchange Business Day on which Deutsche completes the sale of all Restricted Shares or, in the case of settlement of Termination Delivery Units, a sufficient number of Restricted Shares so that the realized net proceeds of such sales exceed the Counterparty Payment Obligation, (ii) the date upon which all Restricted Shares (and any Make-whole Shares) have been sold or transferred pursuant to Rule 144 (or similar provisions then in force) and (iii) the date upon which all Restricted Shares (and any Make-whole Shares) may be sold or transferred by a non-affiliate pursuant to Rule 144 (or any similar provision then in force) without any further restriction whatsoever.

 

(iii)          If (ii) above is applicable and the Net Share Settlement Amount or the Counterparty Payment Obligation, as applicable, exceeds the realized net proceeds from such resale, or if (i) above is applicable and the Freely Tradeable Value (as defined below) of the Shares owed pursuant to the Net Share Settlement Amount, or the Counterparty Payment Obligation (in each case as adjusted pursuant to (i) above), as applicable, exceeds the realized net proceeds from such resale, Counterparty shall transfer to Deutsche by the open of the regular trading session on the Exchange

 

A-1











 

on the Exchange Business Day immediately following the last day of the Resale Period the amount of such excess (the “Additional Amount”), at its option, either in cash or in a number of Restricted Shares (“Make-whole Shares”, provided that the aggregate number of Restricted Shares and Make-whole Shares delivered shall not exceed the Maximum Delivery Amount) that, based on the Relevant Price on the last day of the Resale Period (as if such day was the “Valuation Date” for purposes of computing such Relevant Price), has a value equal to the Additional Amount. If Counterparty elects to pay the Additional Amount in Make-whole Shares, Counterparty shall elect whether the requirements and provisions for either Private Placement Settlement or Registration Settlement shall apply to such payment. This provision shall be applied successively until the Additional Amount is equal to zero, subject to “Limitation on Delivery of Shares”.  “Freely Tradeable Value” means the value of the number of Shares delivered to Deutsche which such Shares would have if they were freely tradeable (without prospectus delivery) upon receipt by Deutsche, as determined by the Calculation Agent by reference to the Relevant Price for freely tradeable Shares as of the Valuation Date, or other date of valuation used to determine the delivery obligation with respect to such Shares, or by other commercially reasonable means.

 

A-2











 

ANNEX B

 

(a)           The Premium and Final Disruption Date for the Transaction are set forth below:

 

	
Premium:
    	
 
    	
[***]
    
	
 
    	
 
    	
 
    
	
Final   Disruption Date:
    	
 
    	
[***]
    


 

(b)           For each Component of the Transaction, the Number of Warrants and Expiration Date is set forth below.

 

	
Component Number
    	
 
    	
Number of Warrants
    	
 
    	
Expiration Date
    
	
[***]
    	
 
    	
[***]
    	
 
    	
[***]
    


 

B-1