exhibit101-formofcappedc






                                                                                                                                                                                                                                                                                                                                                                                             Exhibit 10.1    [Dealer Address]                                                                      [__________], 2020  To: Five9, Inc.   4000 Executive Parkway, Suite 400  San Ramon, CA 94583  Attention:     Barry Zwarenstein, Chief Financial Officer  Telephone No.:  [__________]  Facsimile No.: [__________]      Re: [Base][Additional] Call Option Transaction          The purpose of this letter agreement (this “Confirmation”) is to confirm the terms and conditions of the  call option transaction entered into between [Dealer] (“Dealer”) and Five9, Inc. (“Counterparty”) as of the Trade  Date specified below (the “Transaction”).  This letter agreement constitutes a “Confirmation” as referred to in the  ISDA  Master  Agreement  specified  below.   Each  party  further  agrees  that  this  Confirmation  together  with  the  Agreement evidence a complete binding agreement between Counterparty and Dealer as to the subject matter and  terms  of  the  Transaction  to  which  this  Confirmation  relates,  and  shall  supersede  all  prior  or  contemporaneous  written or oral communications with respect thereto.          The definitions and provisions contained in the 2002 ISDA Equity Derivatives Definitions (the “Equity  Definitions”), as published by the International Swaps and Derivatives Association, Inc. (“ISDA”) are incorporated  into this Confirmation.  In the event of any inconsistency between the Equity Definitions and this Confirmation, this  Confirmation shall govern.  Certain defined terms used herein are based on terms that are defined in the Offering  Memorandum  dated  May  21,  2020  (the  “Offering  Memorandum”)  relating  to  the  0.500%  Convertible  Senior  Notes due  2025  (as  originally  issued  by  Counterparty,  the  “Convertible  Notes”  and  each  USD  1,000  principal  amount  of  Convertible  Notes,  a  “Convertible  Note”)  issued  by  Counterparty  in  an  aggregate  initial  principal  amount  of  USD  [______]  pursuant  to  an  Indenture [to be]1 dated  May 27,  2020  between  Counterparty  and  U.S.  Bank  National  Association,  as  trustee  (the  “Indenture”).   In  the  event  of  any  inconsistency  between  the  terms  defined in the Offering Memorandum, the Indenture and this Confirmation, this Confirmation shall govern.  The  parties  acknowledge  that  this  Confirmation  is  entered  into  on  the  date  hereof  with  the  understanding  that  (i)  definitions set forth in the Indenture which are also defined herein by reference to the Indenture and (ii) sections of  the Indenture  that  are  referred  to  herein  will  conform  in  all  material  respects  to  the  descriptions  thereof  (if  so  described)  in  the  Offering  Memorandum.   If  any  such  definitions  in  the  Indenture  or  any  such  sections  of  the  Indenture differ from the descriptions thereof in the Offering Memorandum, the descriptions thereof in the Offering  Memorandum will govern for purposes of this Confirmation.  The parties further acknowledge that the Indenture  section numbers used herein are based on the [draft of the Indenture last reviewed by Dealer and Counterparty as of  the date of this Confirmation, and if any such section numbers are changed in the Indenture as executed, the parties  will amend this Confirmation in good faith and in a commercially reasonable manner to preserve the intent of the  parties]2[Indenture as executed]3.  Subject to the foregoing, references to the Indenture herein are references to the  Indenture as in effect on the date of its execution, and if the Indenture is amended or supplemented following such  date (other than any amendment or supplement (x) pursuant to Section 10.01(l) of the Indenture that, as determined  by  the  Calculation  Agent,  conforms  the  Indenture  to  the  description  of  Convertible  Notes  in  the  Offering  Memorandum or (y) pursuant to Section 14.07 of the Indenture, subject, in the case of this clause (y), to the second  paragraph under “Method of Adjustment” in Section 3), any such amendment or supplement will be disregarded for  purposes of this Confirmation (other than as provided in Section 9(i)(iii) below) unless the parties agree otherwise in  writing.                                   1 Insert if Indenture is not completed at the time of the Confirmation.  2 Include  in  the  Base  Call  Option  Confirmation.   Include  in  the Additional  Call  Option  Confirmation  if  it  is  executed  before  closing of the base deal.  3 Include  in  the  Additional  Call  Option  Confirmation, but  only  if  the  Additional  Call  Option  Confirmation  is  executed  after  closing of the base deal. 





 






                                                                                                                                                                                                                                                                                                                  Each party is hereby advised, and each such party acknowledges, that the other party has engaged in, or  refrained from engaging in, substantial financial transactions and has taken other material actions in reliance upon  the parties’ entry into the Transaction to which this Confirmation relates on the terms and conditions set forth below.   1.     This Confirmation evidences a complete and binding agreement between Dealer and Counterparty as to the  terms of the Transaction to which this Confirmation relates.  This Confirmation shall supplement, form a part of, and  be subject to an agreement in the form of the 2002 ISDA Master Agreement (the “Agreement”) as if Dealer and  Counterparty had executed an agreement in such form (but without any Schedule except for (i) the election of the  laws of the State of New York as the governing law (without reference to choice of law doctrine), (ii) in respect of  Section 5(a)(vi) of the Agreement, the election that the “Cross Default” provisions shall apply to Dealer with (a) a  “Threshold Amount” of three percent of the shareholders’ equity of Dealer as of the Trade Date, (b) the deletion of  the phrase “, or becoming capable at such time of being declared,” from clause (1) and (c) the following language  added to the end thereof: “Notwithstanding the foregoing, a default under subsection (2) hereof shall not constitute  an Event of Default if (x) the default was caused solely by error or omission of an administrative or operational  nature; (y) funds were available to enable the party to make the payment when due; and (z) the payment is made  within  two  Local  Business  Days  of  such  party’s  receipt  of written  notice  of  its  failure  to  pay.”,  (iii)  the  term  “Specified Indebtedness” shall have the meaning specified in Section 14 of the Agreement, except that such term  shall not include obligations in respect of deposits received in the ordinary course of a party’s banking business, and  (iv)  following  the  payment  of  the  Premium,  the  condition  precedent  in  Section  2(a)(iii)  of  the  Agreement  with  respect to Events of Default or Potential Events of Default (other than an Event of Default or Potential Event of  Default arising under Section 5(a)(ii), 5(a)(iv) or 5(a)(vii) of the Agreement) shall not apply to a payment or delivery  owing by Dealer to Counterparty) on the Trade Date.  In the event of any inconsistency between provisions of the  Agreement and this Confirmation, this Confirmation will prevail for the purpose of the Transaction to which this  Confirmation relates. For purposes of the Equity Definitions, the Transaction shall be deemed to be a Share Option  Transaction.  The  parties  hereby  agree  that  no  transaction  other  than  the  Transaction  to  which  this  Confirmation  relates shall be governed by the Agreement.   2.     The terms of the particular Transaction to which this Confirmation relates are as follows:          General Terms.              Trade Date:                          [__________], 2020              Effective Date:                      The second Exchange Business Day immediately prior to                                                  the Premium Payment Date              Option Style:                        “Modified American”, as described under “Procedures for                                                  Exercise” below              Option Type:                         Call              Buyer:                               Counterparty              Seller:                              Dealer              Shares:                              The common stock of Counterparty, par value USD 0.001                                                  per share  (Exchange symbol “FIVN”).              Number of Options:                   [_______]4.  For the avoidance of doubt, the Number of                                                  Options  shall  be  reduced  by  any  Options  exercised  by                                                  Counterparty.  In no event will the Number of Options be                                                  less than zero.                                   4 For the Base Call Option Confirmation, this is equal to the number of Convertible Notes in principal amount of $1,000 initially  issued on the closing date for the Convertible Notes.  For the Additional Call Option Confirmation, this is equal to the number of  additional Convertible Notes in principal amount of $1,000.                                                                                                    2                                                                                               





 






                                                                                                                                                                                                                                                                                                                      Applicable Percentage:               [__]%              Option Entitlement:                  A  number  equal  to  the  product  of  the  Applicable                                                  Percentage and [______]5.              Strike Price:                        USD 134.3418              Cap Price:                           USD 206.6800              Premium:                             USD [______]               Premium Payment Date:                [__________], 2020              Exchange:                            The NASDAQ Global Market              Related Exchange(s):                 All Exchanges              Excluded Provisions:                 Section 14.04(h) and Section 14.03 of the Indenture.          Procedures for Exercise.              Conversion Date:                     With  respect  to  any  conversion  of  a  Convertible  Note                                                  (other  than  any  conversion  of  Convertible  Notes  with  a                                                  Conversion  Date   occurring  prior  to  the  Free                                                  Convertibility  Date  (any  such  conversion,  an  “Early                                                  Conversion”),  to  which  the provisions  of  Section 9(i)(i)                                                  of  this  Confirmation  shall apply),  the  date  on  which  the                                                  Holder (as such term is defined in the Indenture) of such                                                  Convertible  Note  satisfies  all  of  the  requirements  for                                                  conversion thereof as set forth in Section 14.02(b) of the                                                  Indenture.              Free Convertibility Date:            March 1, 2025              Expiration Time:                     The Valuation Time              Expiration Date:                     June 1, 2025, subject to earlier exercise.              Multiple Exercise:                   Applicable,  as  described  under  “Automatic  Exercise”                                                  below.              Automatic Exercise:                  Notwithstanding Section 3.4 of the Equity Definitions, on                                                  each  Conversion  Date  occurring  on  or  after  the  Free                                                  Convertibility  Date,  in  respect  of  which  a  “Notice  of                                                  Conversion”  (as  such  term  is  defined  in  the  Indenture)                                                  that is effective as to Counterparty has been delivered by                                                  the relevant  converting  Holder,  a  number  of  Options                                                  equal  to  [(i)]  the  number  of  Convertible  Notes  in                                                  denominations  of  USD  1,000  as  to  which  such                                                  Conversion  Date  has  occurred  [minus (ii)  the  number  of                                                  Options  that  are  or  are  deemed  to  be  automatically                                                  exercised  on  such  Conversion  Date  under  the Base  Call                                                  Option  Transaction  Confirmation  letter  agreement  dated                                                  [__________],  2020  between  Dealer  and  Counterparty                                   5 Insert the initial Conversion Rate for the Convertible Notes.                                                                                                    3                                                                                               





 






                                                                                                                                                                                                                                                                                                                                                           (the  “Base  Call  Option  Confirmation”),]6 shall  be                                                  deemed to be automatically exercised; provided that such                                                  Options  shall  be  exercised  or  deemed  exercised  only  if                                                  Counterparty has provided a Notice of Exercise to Dealer                                                  in accordance with “Notice of Exercise” below.                                                   Notwithstanding  the  foregoing,  in  no  event  shall  the                                                  number of Options that are exercised or deemed exercised                                                  hereunder exceed the Number of Options.              Notice of Exercise:                  Notwithstanding  anything  to  the  contrary  in  the  Equity                                                  Definitions  or  under  “Automatic  Exercise”  above,  in                                                  order  to  exercise  any  Options  relating  to  Convertible                                                  Notes  with  a  Conversion  Date  occurring  on  or  after  the                                                  Free Convertibility Date, Counterparty must notify Dealer                                                  in writing before 5:00 p.m. (New York City time) on the                                                  Scheduled  Valid  Day  immediately  preceding  the                                                  Expiration  Date  specifying  the  number  of  such  Options;                                                  provided that, notwithstanding the foregoing, such notice                                                  (and  the  related  exercise  of  Options  hereunder)  shall  be                                                  effective  if  given  after  the  applicable  notice  deadline                                                  specified  above  but  prior  to  5:00  p.m.  (New  York  City                                                  time) on the fifth Exchange Business Day following such                                                  notice  deadline,  in  which  event  the  Calculation  Agent                                                  shall have the right to adjust Dealer’s delivery obligation                                                  hereunder in good faith and in a commercially reasonable                                                  manner, with respect to the exercise of such Options, as                                                  appropriate  to  reflect  the  additional  commercially                                                  reasonable costs and losses (limited to losses as a result of                                                  hedging  mismatches  and  market  losses)  and  expenses                                                  incurred  by  Dealer  or  any  of  its  affiliates  in  connection                                                  with  its  hedging  activities  with  such  adjustments  made                                                  assuming that Dealer maintains commercially reasonable                                                  hedge  positions  (including  the  unwinding  of  any  hedge                                                  position) as a result of its not having received such notice                                                  prior to such notice deadline (it being understood that the                                                  adjusted  delivery  obligation  described  in  the  preceding                                                  proviso can never be less than zero and can never require                                                  any  payment  by  Counterparty); provided,  further, that  if                                                  the  Relevant  Settlement  Method  for  such  Options  is  (x)                                                  Net Share Settlement and the Specified Cash Amount (as                                                  defined below) is not USD 1,000, (y) Cash Settlement or                                                  (z) Combination Settlement, Dealer shall have received a                                                  separate  notice  (the  “Notice  of  Final  Settlement                                                  Method”) in respect of all such Convertible Notes before                                                  5:00  p.m.  (New  York  City  time)  on  the  Free                                                  Convertibility Date specifying (1) the Relevant Settlement                                                  Method for such Options, and (2) if the settlement method                                                  for  the  related  Convertible  Notes  is  not  Settlement  in                                                  Shares or Settlement in Cash (each as defined below), the                                                  fixed amount  of  cash  per  Convertible  Note that                                                  Counterparty  has  elected  to  deliver  to  Holders  (as  such                                                  term  is  defined  in  the  Indenture)  of  the  related                                  6 Include for Additional Call Option Confirmation only.                                                                                                    4                                                                                               





 






                                                                                                                                                                                                                                                                                                                                               Convertible  Notes  (the  “Specified  Cash  Amount”).                                           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 Notes.       Valuation Time:                      At  the  close  of  trading  of  the  regular  trading  session  on                                           the  Exchange; provided that  if  the  principal  trading                                           session is extended, the Calculation Agent shall determine                                           the  Valuation  Time  in  its  commercially  reasonable                                           discretion.       Market Disruption Event:             Section 6.3(a) of the Equity Definitions is hereby replaced                                           in its entirety by the following:                                            “‘Market Disruption Event’ means, in respect of a Share,                                           (i)  a  failure  by  the  primary  United  States  national  or                                           regional  securities  exchange  or  market  on  which  the                                           Shares  are  listed  or  admitted  for  trading  to  open  for                                           trading  during  its  regular  trading  session  or  (ii)  the                                           occurrence  or  existence  prior  to  1:00  p.m.  (New  York                                           City time) on any Scheduled Valid Day for the Shares for                                           more  than  one  half-hour  period  in  the aggregate  during                                           regular  trading  hours  of  any  suspension  or  limitation                                           imposed  on  trading  (by  reason  of  movements  in  price                                           exceeding limits permitted by the relevant stock exchange                                           or otherwise) in the Shares or in any options contracts or                                           futures contracts relating to the Shares.”   Settlement Terms.         Settlement Method:                   For any Option, Net Share Settlement; provided that if the                                           Relevant  Settlement  Method  set  forth  below  for  such                                           Option  is  not  Net  Share  Settlement,  then  the  Settlement                                           Method for such Option shall be such Relevant Settlement                                           Method,  but  only  if  Counterparty  shall  have  notified                                           Dealer  of  the  Relevant  Settlement  Method  in  the  Notice                                           of Final Settlement Method for such Option.        Relevant Settlement Method:          In respect of any Option:                                            (i) if  Counterparty  has  elected  to  settle  its  conversion                                           obligations in respect of the related Convertible Note (A)                                           entirely  in  Shares  pursuant  to  Section  14.02(a)(iv)(A)  of                                           the  Indenture  (together  with  cash  in  lieu  of  fractional                                           Shares)  (such  settlement  method,  “Settlement  in                                           Shares”),  (B)  in  a  combination  of  cash  and  Shares                                           pursuant to Section 14.02(a)(iv)(C) of the Indenture with                                           a  Specified  Cash  Amount  less  than  USD  1,000  (such                                           settlement  method,   “Low    Cash   Combination                                           Settlement”) or (C) in a combination of cash and Shares                                           pursuant to Section 14.02(a)(iv)(C) of the Indenture with                                           a  Specified  Cash  Amount  equal  to  USD 1,000,  then,  in                                                                                       5                                                                                                        





 






                                                                                                                                                                                                                                                                                                                               each  case,  the  Relevant  Settlement  Method  for  such                                       Option shall be Net Share Settlement;                                        (ii) if  Counterparty  has  elected  to  settle  its  conversion                                       obligations in respect of the related Convertible Note in a                                       combination  of  cash  and  Shares  pursuant  to  Section                                       14.02(a)(iv)(C)  of  the  Indenture  with  a  Specified  Cash                                       Amount  greater  than  USD  1,000,  then  the  Relevant                                       Settlement Method for such Option shall be Combination                                       Settlement; and                                        (iii) if  Counterparty  has  elected  to  settle  its  conversion                                       obligations  in  respect  of  the  related  Convertible  Note                                       entirely in cash pursuant to Section 14.02(a)(iv)(B) of the                                       Indenture  (such  settlement  method,  “Settlement  in                                       Cash”),  then  the  Relevant  Settlement  Method  for  such                                       Option shall be Cash Settlement.   Net Share Settlement:                If  Net  Share  Settlement  is  applicable  to  any  Option                                       exercised  or  deemed  exercised  hereunder,  Dealer  will                                       deliver  to  Counterparty,  on  the  relevant  Settlement  Date                                       for each such Option, a number of Shares (the “Net Share                                       Settlement  Amount”)  equal  to  the  sum,  for  each  Valid                                       Day  during  the  Settlement  Averaging  Period  for  each                                       such  Option,  of  (i)  (a) the  Daily  Option  Value  for  such                                       Valid  Day, divided  by (b)  the  Relevant  Price  on  such                                       Valid Day, divided by (ii) the number of Valid Days in the                                       Settlement Averaging Period.                                        Dealer  will  pay  cash  in  lieu  of  delivering  any  fractional                                       Shares  to  be  delivered  with  respect  to  any  Net  Share                                       Settlement  Amount  valued  at  the  Relevant  Price  for  the                                       last Valid Day of the Settlement Averaging Period.   Combination Settlement:              If  Combination  Settlement  is  applicable  to  any  Option                                       exercised or deemed exercised hereunder, Dealer will pay                                       or  deliver,  as  the  case  may  be,  to Counterparty,  on  the                                       relevant Settlement Date for each such Option:                                        (i)   cash  (the  “Combination  Settlement  Cash                                             Amount”)  equal  to  the  sum,  for  each  Valid  Day                                             during  the  Settlement  Averaging  Period  for  such                                             Option,  of  (A)  an   amount   (the  “Daily                                             Combination  Settlement  Cash  Amount”)  equal                                             to the lesser of (1) the product of (x) the Applicable                                             Percentage  and  (y)  the  Specified  Cash  Amount                                             minus USD 1,000 and (2) the Daily Option Value,                                             divided  by (B)  the  number  of  Valid  Days  in  the                                             Settlement  Averaging  Period; provided that  if  the                                             calculation in clause (A) above results in zero or a                                             negative  number  for  any  Valid  Day,  the  Daily                                             Combination  Settlement  Cash  Amount  for  such                                             Valid Day shall be deemed to be zero; and                                        (ii)  Shares  (the  “Combination  Settlement  Share                                             Amount”)  equal  to  the  sum,  for  each  Valid  Day                                                                              6                                                                                                    





 






                                                                                                                                                                                                                                                                                                                                     during  the  Settlement  Averaging  Period  for  such                                             Option, of a number of Shares for such Valid Day                                             (the  “Daily  Combination  Settlement  Share                                             Amount”) equal to (A) (1) the Daily Option Value                                             on  such  Valid  Day minus the  Daily  Combination                                             Settlement  Cash  Amount  for  such  Valid  Day,                                             divided  by (2)  the  Relevant  Price  on  such  Valid                                             Day, divided by (B) the number of Valid Days in                                             the  Settlement  Averaging  Period; provided that  if                                             the  calculation  in  sub-clause  (A)(1)  above  results                                             in  zero  or  a  negative  number  for  any Valid  Day,                                             the  Daily  Combination  Settlement  Share  Amount                                             for such Valid Day shall be deemed to be zero.                                        Dealer  will  pay  cash  in  lieu  of  delivering  any  fractional                                       Shares  to  be  delivered  with  respect  to  any  Combination                                       Settlement Share Amount valued at the Relevant Price for                                       the last Valid Day of the Settlement Averaging Period.   Cash Settlement:                     If Cash Settlement is applicable to any Option exercised                                       or deemed exercised hereunder, in lieu of Section 8.1 of                                       the  Equity  Definitions,  Dealer  will  pay  to  Counterparty,                                       on the relevant Settlement Date for each such Option, an                                       amount of cash (the “Cash Settlement Amount”) equal                                       to  the  sum,  for  each  Valid  Day  during  the  Settlement                                       Averaging Period for such Option, of (i) the Daily Option                                       Value for such Valid Day, divided by (ii) the number of                                       Valid Days in the Settlement Averaging Period.     Daily Option Value:                  For  any  Valid  Day,  an  amount  equal  to  (i)  the  Option                                       Entitlement on such Valid Day, multiplied by (ii) (A) the                                       lesser  of  the Relevant  Price  on  such  Valid  Day  and  the                                       Cap  Price, less (B)  the  Strike  Price  on  such  Valid  Day;                                       provided that  if  the  calculation  contained  in  clause  (ii)                                       above  results  in  a  negative  number,  the  Daily  Option                                       Value for such Valid Day shall be deemed to be zero.  In                                       no event will the Daily Option Value be less than zero.   Valid Day:                           A day on which (i) there is no Market Disruption Event                                       and  (ii)  trading  in  the  Shares  generally  occurs  on  the                                       Exchange  or,  if  the  Shares  are  not  then  listed  on  the                                       Exchange, on the principal other United States national or                                       regional securities exchange on which the Shares are then                                       listed  or,  if  the  Shares  are  not  then  listed  on  a  United                                       States  national  or  regional  securities  exchange,  on  the                                       principal other market on which the Shares are then listed                                       or admitted for trading. If the Shares are not so listed or                                       admitted for trading, “Valid Day” means a Business Day.   Scheduled Valid Day:                 A day that is scheduled to be a Valid Day on the principal                                       United States national or regional securities exchange or                                       market  on  which  the Shares  are  listed  or  admitted  for                                       trading.   If  the  Shares  are  not  so  listed  or  admitted  for                                       trading, “Scheduled Valid Day” means a Business Day.                                                                               7                                                                                                    





 






                                                                                                                                                                                                                                                                                                                      Business Day:                        Any  day  other  than  a  Saturday,  a  Sunday  or  a  day  on                                                  which  the Federal  Reserve  Bank  of  New  York  is                                                  authorized or required by law or executive order to close                                                  or be closed.                Relevant Price:                      On  any  Valid  Day,  the  per  Share  volume-weighted                                                  average price as displayed under the heading “Bloomberg                                                  VWAP” on Bloomberg page FIVN  <equity> AQR (or its                                                  equivalent successor  if  such  page  is  not  available)  in                                                  respect of the period from the scheduled open of trading                                                  on  the  Exchange  to  the  Scheduled  Closing  Time  of  the                                                  Exchange on such Valid Day (or if such volume-weighted                                                  average price is unavailable at such time, the market value                                                  of  one  Share  on  such  Valid  Day,  as  determined  by  the                                                  Calculation  Agent  in  a  commercially  reasonable  manner                                                  using, if practicable, a volume-weighted average method).                                                  The Relevant Price will be determined without regard to                                                  after-hours  trading  or  any  other  trading  outside  of  the                                                  regular trading session trading hours.              Settlement Averaging Period:         For  any  Option,  the 40  consecutive  Valid  Days                                                  commencing on, and including, the 41st Scheduled Valid                                                  Day immediately prior to the Expiration Date.              Settlement Date:                     For  any  Option,  the  second  Business  Day  immediately                                                  following the final Valid Day of the Settlement Averaging                                                  Period for such Option.              Settlement Currency:                 USD              Other Applicable Provisions:         The provisions of Sections 9.1(c), 9.8, 9.9 and 9.11 of the                                                  Equity  Definitions  will  be  applicable,  except  that  all                                                  references in such provisions to “Physically-settled” shall                                                  be read as references to “Share Settled”.  “Share Settled”                                                  in relation to any Option means that Net Share Settlement                                                  or Combination Settlement is applicable to that Option.              Representation and Agreement:        Notwithstanding  anything  to  the  contrary  in  the  Equity                                                  Definitions  (including,  but  not  limited  to,  Section  9.11                                                  thereof),  the  parties  acknowledge  that  (i) any  Shares                                                  delivered to Counterparty shall be, upon delivery, subject                                                  to restrictions and limitations arising from Counterparty’s                                                  status  as  issuer  of  the  Shares  under  applicable  securities                                                  laws,  (ii)  Dealer  may  deliver  any  Shares  required  to  be                                                  delivered hereunder in certificated form in lieu of delivery                                                  through  the  Clearance  System  and  (iii)  any  Shares                                                  delivered  to  Counterparty  may  be  “restricted  securities”                                                  (as defined in Rule 144 under the Securities Act of 1933,                                                  as amended (the “Securities Act”)).   3.     Additional Terms applicable to the Transaction.          Adjustments applicable to the Transaction:              Potential Adjustment Events:         Notwithstanding  Section  11.2(e)  of  the  Equity                                                  Definitions,  a  “Potential  Adjustment  Event”  means  an                                                                                                    8                                                                                               





 






                                                                                                                                                                                                                                                                                                                               occurrence of any event or condition, as set forth in any                                       Dilution  Adjustment Provision,  that  would  result  in  an                                       adjustment under the Indenture to the “Conversion Rate”                                       or to the composition of a “unit of Reference Property” or                                       to  any  “Last  Reported  Sale  Price”,  “Daily  VWAP,”                                       “Daily Conversion Value” or “Daily Settlement Amount”                                       (each as defined in the Indenture).  For the avoidance of                                       doubt,  Dealer  shall  not  have  any  delivery  or  payment                                       obligation hereunder, and no adjustment shall be made to                                       the  terms  of  the  Transaction,  on  account  of  (x)  any                                       distribution  of  cash,  property  or  securities  by                                       Counterparty  to  holders  of  the  Convertible  Notes  (upon                                       conversion  or  otherwise)  or  (y)  any  other  transaction  in                                       which  holders  of  the  Convertible  Notes  are  entitled  to                                       participate,  in  each  case,  in  lieu  of  an  adjustment  under                                       the  Indenture  of  the type  referred  to  in  the  immediately                                       preceding  sentence  (including,  without  limitation,                                       pursuant  to  the  fifth  sentence  of  the  first  paragraph  of                                       Section 14.04(c) of the Indenture or the fourth sentence of                                       Section 14.04(d) of the Indenture).   Method of Adjustment:                Calculation  Agent  Adjustment,  which  means  that,                                       notwithstanding Section 11.2(c) of the Equity Definitions,                                       upon  any  Potential  Adjustment  Event,  the  Calculation                                       Agent  shall  make  a  corresponding  adjustment  in  a                                       commercially  reasonable  manner  to  any  one  or  more  of                                       the Strike Price, Number of Options, Option Entitlement                                       and any other variable relevant to the exercise, settlement                                       or  payment  for  the  Transaction  in  strict  correlation  with                                       any adjustment to the terms of the Convertible Notes.                                        Notwithstanding  the  foregoing  and  “Consequences  of                                       Merger Events / Tender Offers” below:                                        (i)     if the Calculation Agent in good faith disagrees                                               with  any  adjustment  to  the  Convertible  Notes                                               that  involves  an  exercise  of  discretion  by                                               Counterparty  (including,  without  limitation,                                               pursuant  to  Section  14.05  of  the  Indenture,                                               Section  14.07  of  the  Indenture  or  any                                               supplemental  indenture  entered  into  thereunder                                               or  in  connection  with  any  proportional                                               adjustment or the determination of the fair value                                               of any securities, property, rights or other assets),                                               then  in  each  such  case,  the  Calculation  Agent                                               will determine the adjustment to be made to any                                               one  or  more  of  the  Strike  Price,  Number  of                                               Options,  Option  Entitlement  and  any  other                                               variable  relevant  to the  exercise,  settlement  or                                               payment for  the  Transaction  in  a  commercially                                               reasonable  manner  (taking  into  account  the                                               determination  made  by  Counterparty)  based  on                                               stock  price,  volatility,  expected  dividends,                                               interest  rates,  stock  loan  rate,  value  of  any                                               commercially  reasonable  hedge  positions  in                                                                              9                                                                                                    





 






                                                                                                                                                                                       connection  with  the  Transaction  and  liquidity           relevant  to  the  Shares  or  to  the  Transaction;           provided that,  notwithstanding  the  foregoing, if           any  Potential  Adjustment  Event  occurs  during           the  Settlement  Averaging  Period  but  no           adjustment  was  made  to  any Convertible  Note           under the Indenture because the relevant Holder           (as  such  term  is  defined  in  the  Indenture)  was           deemed  to  be  a  record  owner  of  the  underlying           Shares on the related Conversion Date, then the           Calculation Agent shall make an adjustment in a           commercially reasonable manner, consistent with           the  methodology  set  forth  in  the  Indenture  or           supplemental  indenture,  as  determined  by  it,  to           the  terms  hereof  in  order  to  account  for  such           Potential Adjustment Event;    (ii)    in  connection  with  any  Potential  Adjustment           Event  as  a  result  of  an  event  or  condition  set           forth  in  Section  14.04(b)  of  the  Indenture  or           Section 14.04(c) of the Indenture where, in either           case,  the  period  for  determining  “Y”  (as  such           term is used in Section 14.04(b) of the Indenture)           or  “SP0”  (as  such  term  is  used  in  Section           14.04(c)  of  the  Indenture),  as  the  case  may  be,           begins  before  Counterparty  has  publicly           announced  the  event  or  condition  giving  rise  to           such  Potential  Adjustment  Event,  then  the           Calculation Agent shall have the right to adjust,           in  a  commercially  reasonable  manner,  any           variable  relevant  to  the  exercise,  settlement  or           payment  for  the  Transaction  as  appropriate  to           reflect  the  commercially  reasonable  costs  (to           account  solely  for  hedging  mismatches  and           market  losses)  and  expenses  that  would  be           incurred  by  Dealer  in  connection  with  its           commercially  reasonable  hedging  activities  as  a           result of such event or condition not having been           publicly  announced  prior  to  the  beginning  of           such period; and    (iii)   if  any  Potential  Adjustment  Event  is  declared           and (a) the event or condition giving rise to such           Potential  Adjustment  Event  is  subsequently           amended, modified, cancelled or abandoned, (b)           the  “Conversion  Rate”  (as  defined  in  the           Indenture)  is  otherwise not  adjusted  at  the  time           or  in  the manner  contemplated  by  the  relevant           Dilution  Adjustment  Provision  based  on  such           declaration  or  (c)  the  “Conversion  Rate”  (as           defined in the Indenture) is adjusted as a result of           such   Potential  Adjustment  Event   and           subsequently re-adjusted (each of clauses (a), (b)           and  (c),  a  “Potential  Adjustment  Event           Change”)  then,  in  each  case,  the  Calculation     10                                                                





 






                                                                                                                                                                                                                                                                                                                                                       Agent  shall  have  the  right  to  adjust,  in  a                                                   commercially  reasonable  manner,  any  variable                                                   relevant  to  the  exercise,  settlement  or payment                                                   for  the  Transaction  as  appropriate  to  reflect  the                                                   costs (to account solely for hedging mismatches                                                   and  market  losses)  and  expenses  incurred  by                                                   Dealer  in  connection  with  its  commercially                                                   reasonable hedging activities as a result of such                                                   Potential Adjustment Event Change.       Dilution Adjustment Provisions:      Sections 14.04(a), (b), (c), (d) and (e) and Section 14.05                                           of the Indenture.   Extraordinary Events applicable to the Transaction:       Merger Events:                       Applicable; provided that notwithstanding Section 12.1(b)                                           of  the  Equity  Definitions,  a  “Merger  Event”  means  the                                           occurrence  of  any  event  or  condition  set  forth  in  the                                           definition  of  “Merger  Event”  in  Section  14.07(a)  of  the                                           Indenture.       Tender Offers:                       Applicable; provided that notwithstanding Section 12.1(d)                                           of  the Equity  Definitions,  a  “Tender  Offer” means  the                                           occurrence of any event or condition set forth in Section                                           14.04(e) of the Indenture.         Consequences of Merger Events/      Tender Offers:                       Notwithstanding  Section  12.2  and  Section  12.3  of  the                                           Equity  Definitions,  upon  the  occurrence  of  a  Merger                                           Event  or  a  Tender  Offer,  the  Calculation  Agent  shall                                           make  a  corresponding  adjustment,  in  a  commercially                                           reasonable manner, in respect of any adjustment under the                                           Indenture to any one or more of the nature of the Shares                                           (in the case of a Merger Event), Strike Price, Number of                                           Options,  Option  Entitlement  and  any  other  variable                                           relevant  to  the  exercise,  settlement  or  payment  for  the                                           Transaction,  subject  to  the  second  paragraph  under                                           “Method  of  Adjustment”; provided, however,  that  such                                           adjustment  shall  be  made  without regard  to  any                                           adjustment  to  the  Conversion  Rate  pursuant  to  any                                           Excluded Provision; provided further that if, with respect                                           to a Merger Event or a Tender Offer, (i) the consideration                                           for  the  Shares  includes  (or,  at  the  option  of  a  holder  of                                           Shares, may include) shares of an entity or person that is                                           not a corporation or is not organized under the laws of the                                           United  States,  any  State  thereof  or  the  District  of                                           Columbia  or  (ii)  the  Counterparty  to  the  Transaction                                           following such Merger Event or Tender Offer will not be                                           the Issuer, then, in either case, Cancellation and Payment                                           (Calculation Agent Determination) may apply at Dealer’s                                           commercially  reasonable  election; provided  further that,                                           for  the  avoidance  of  doubt,  adjustments shall  be  made                                           pursuant  to  the  provisions  set  forth  above  regardless  of                                           whether any Merger Event or Tender Offer gives rise to                                           an Early Conversion.                                                                                      11                                                                                                        





 






                                                                                                                                                                                                                                                                                          Consequences of Announcement Events: Modified  Calculation  Agent  Adjustment  as  set  forth  in                                       Section  12.3(d)  of  the  Equity  Definitions;  provided  that,                                       in  respect  of  an  Announcement  Event,  (x)  references  to                                       “Tender  Offer”  shall  be  replaced  by  references  to                                       “Announcement  Event”  and references  to  “Tender  Offer                                       Date”  shall  be  replaced  by  references  to  “date  of  such                                       Announcement Event”, (y) the word “shall” in the second                                       line shall be replaced with “shall, if the Calculation Agent                                       determines  that  such  Announcement  Event  has  had  a                                       material  economic  effect  on  the  Transaction,”  and  the                                       phrase “exercise, settlement, payment or any other terms                                       of  the  Transaction  (including,  without  limitation,  the                                       spread)”  shall  be  replaced  with  the  phrase  “Cap  Price                                       (provided that in no event shall the Cap Price be less than                                       the Strike Price)”, and (z) for the avoidance of doubt, the                                       Calculation  Agent  may, in  a  commercially  reasonable                                       manner, determine  whether  the  relevant  Announcement                                       Event  has  had  an  economic  effect  on  the  Transaction                                       (and,  if  so,  may  adjust  the  Cap  Price  accordingly in  a                                       commercially  reasonable  manner  and  to  account  solely                                       for changes in stock price, volatility, expected dividends,                                       interest rates, stock loan rate, value of any commercially                                       reasonable  hedge  positions  in  connection  with  the                                       Transaction and liquidity relevant to the Shares or to the                                       Transaction) on one or more occasions on or after the date                                       of  the  Announcement  Event  up  to,  and  including,  the                                       Expiration Date, any Early Termination Date and/or any                                       other  date  of  cancellation  and/or  any  other  date  with                                       respect  to  which  the  Announcement  Event  is  cancelled,                                       withdrawn,  discontinued  or  otherwise  terminated,  as                                       applicable,  it  being  understood  that  any  adjustment  in                                       respect of an Announcement Event shall take into account                                       any earlier adjustment relating to the same Announcement                                       Event  and  shall  not  be  duplicative  with  any other                                       adjustment or cancellation valuation made pursuant to this                                       Confirmation,  the  Equity  Definitions  or  the  Agreement.                                        An  Announcement  Event  shall  be  an  “Extraordinary                                       Event”  for  purposes  of  the  Equity  Definitions,  to  which                                       Article 12 of the Equity Definitions is applicable.   Announcement Event:                  (i)  The  public  announcement  by  any  entity  of  (x)  any                                       transaction or event that, if completed, would constitute a                                       Merger  Event  or  Tender  Offer,  (y)  any  potential                                       acquisition or disposition by Issuer and/or its subsidiaries                                       where  the  aggregate  consideration  paid  or  received  by                                       Issuer and/or its subsidiaries, as the case may be, exceeds                                       35% of the market capitalization of Issuer as of the date                                       of such announcement (an “Acquisition Transaction”) or                                       (z) the  intention  to enter  into  a  Merger  Event  or  Tender                                       Offer  or  an  Acquisition  Transaction,  (ii)  the  public                                       announcement by Issuer or any Valid Third Party Entity                                       of  an  intention  to  solicit  or  enter  into,  or  to  explore                                       strategic  alternatives  or  other  similar  undertaking  that                                       may  include,  a  Merger  Event  or  Tender  Offer  or  an                                       Acquisition  Transaction  or  (iii)  any  subsequent  public                                                                             12                                                                                                    





 






                                                                                                                                                                                                                                                                                                                               announcement by any entity of a change to a transaction                                       or intention that is the subject of an announcement of the                                       type  described  in  clause  (i)  or  (ii)  of  this  sentence                                       (including,  without  limitation,  a  new  announcement,                                       whether  or  not  by  the  same  party,  relating  to  such  a                                       transaction  or  intention  or  the  announcement  of  a                                       withdrawal  from, or  the  abandonment  or  discontinuation                                       of,  such  a  transaction  or  intention),  as  determined in  a                                       commercially  reasonable  manner by  the  Calculation                                       Agent.  For the avoidance of doubt, the occurrence of an                                       Announcement  Event  with  respect  to  any  transaction  or                                       intention  shall  not  preclude  the  occurrence  of  a  later                                       Announcement Event with respect to such transaction or                                       intention.  For  purposes  of  this  definition  of                                       “Announcement Event,” (A) “Merger Event” shall mean                                       such term as defined under Section 12.1(b) of the Equity                                       Definitions  (but,  for  the  avoidance  of  doubt,  the                                       remainder of the definition of “Merger Event” in Section                                       12.1(b) of the Equity Definitions following the definition                                       of “Reverse Merger” therein shall be disregarded) and (B)                                       “Tender  Offer”  shall  mean  such  term  as  defined  under                                       Section  12.1(d)  of  the  Equity  Definitions, provided that                                       Section  12.1(d)  of  the  Equity  Definitions  is  hereby                                       amended by replacing “10%” with “20%” in the third line                                       thereof.   Valid Third Party Entity:            In  respect  of  any  transaction,  any  third  party  (i)  whose                                       announcement  is  reasonably  determined  by  the                                       Calculation Agent to have had a material economic effect                                       on the Shares and/or options on the Shares and (ii) that is                                       the entity, or an affiliate of the entity, that is, or would be,                                       a party to the relevant transaction or event.   Nationalization, Insolvency or Delisting: Cancellation  and  Payment  (Calculation  Agent                                       Determination); provided that,  in  addition  to  the                                       provisions  of  Section  12.6(a)(iii)  of  the  Equity                                       Definitions,  it  will  also  constitute  a  Delisting  if  the                                       Exchange  is  located  in  the  United  States  and  the  Shares                                       are  not  immediately  re-listed,  re-traded  or  re-quoted  on                                       any  of  the  New  York  Stock  Exchange,  The  NASDAQ                                       Global Select Market or The NASDAQ Global Market (or                                       their respective successors); if the Shares are immediately                                       re-listed, re-traded or re-quoted on any of the New York                                       Stock Exchange, The NASDAQ Global Select Market or                                       The  NASDAQ  Global  Market  (or  their  respective                                       successors),  such  exchange  or  quotation  system  shall                                       thereafter be deemed to be the Exchange.   Additional Disruption Events:   Change in Law:                       Applicable; provided that Section 12.9(a)(ii) of the Equity                                       Definitions is hereby amended by (i) replacing the phrase                                       “the  interpretation”  in  the  third  line  thereof  with  the                                       phrase  “,  or  public  announcement  of,  the  formal  or                                       informal interpretation”, (ii) replacing the word “Shares”                                                                              13                                                                                                    





 






                                                                                                                                                                                                                                                                                                                                                           where  it  appears  in  clause  (X)  thereof  with  the  words                                                  “Hedge  Position”  and  (iii)  replacing  the  parenthetical                                                  beginning  after  the  word  “regulation”  in  the  second  line                                                  thereof the words “(including, for the avoidance of doubt                                                  and  without  limitation,  (x)  any  tax  law  or  (y)  adoption,                                                  effectiveness  or  promulgation  of  new  regulations                                                  authorized or mandated by existing statute)”.                  Failure to Deliver:              Applicable                  Hedging Disruption:              Applicable; provided that:                                                   (i)   Section  12.9(a)(v)  of  the  Equity  Definitions  is                                                        hereby  amended  by  (a) inserting  the  following                                                        words  at  the  end  of  clause  (A)  thereof:   “in  the                                                        manner contemplated by the Hedging Party on the                                                        Trade  Date”  and  (b) inserting  the  following  two                                                        phrases at the end of such Section:                                                         “For the avoidance of doubt, the term “equity price                                                        risk” shall be deemed to include, but shall not be                                                        limited to, stock price and volatility risk. And, for                                                        the  further  avoidance  of  doubt,  any  such                                                        transactions or assets referred to in phrases (A) or                                                        (B)  above  must  be  available  on  commercially                                                        reasonable pricing terms.”; and                                                   (ii)  Section  12.9(b)(iii)  of  the  Equity  Definitions  is                                                        hereby  amended  by  inserting  in  the  third  line                                                        thereof,   after  the  words  “to  terminate  the                                                        Transaction”,  the  words “or  a  portion  of  the                                                        Transaction affected by such Hedging Disruption”.                  Increased Cost of Hedging:       Not Applicable                  Hedging Party:                   For all applicable Additional Disruption Events, Dealer.                  Determining Party:               For all applicable Extraordinary Events, Dealer.                  Non-Reliance:                    Applicable                  Agreements and Acknowledgments                 Regarding Hedging Activities:    Applicable                  Additional Acknowledgments:      Applicable   4.     Calculation Agent.                       Dealer.  For  the  avoidance  of  doubt,  whenever  the                                                  Calculation Agent, Dealer, Hedging Party or Determining                                                  Party is called upon to make an adjustment pursuant to the                                                  terms  of  this  Confirmation  or  the  Equity  Definitions  to                                                  take  into  account  the  effect  of  an  event,  the  Calculation                                                  Agent,  Dealer,  Hedging  Party  or  Determining  Party,  as                                                  applicable, shall make such adjustment in good faith and                                                  in a commercially reasonable manner by reference to the                                                  effect of such event on the Hedging Party, assuming that                                                  the  Hedging  Party  maintains,  establishes  or  unwinds  a                                                                                                    14                                                                                               





 






                                                                                                                                                                                                                                                                                                                                                           commercially reasonable hedge position at the time of the                                                  event.   Following  the  occurrence  and  during  the                                                  continuance of an Event of Default of the type described                                                  in  Section  5(a)(vii)  of  the  Agreement  with  respect  to                                                  which  Dealer  is  the  sole  Defaulting  Party,  if  the                                                  Calculation  Agent  fails  to  timely  make  any  calculation,                                                  adjustment  or  determination  required  to  be  made  by  the                                                  Calculation Agent hereunder or to perform any obligation                                                  of  the  Calculation  Agent  hereunder  and  such  failure                                                  continues for five (5) Exchange Business Days following                                                  notice to the Calculation Agent by Counterparty of such                                                  failure, Counterparty  shall  have  the  right  to  designate  a                                                  nationally  recognized  third-party  dealer  in  over-the-                                                 counter  corporate  equity  derivatives  to  act,  during  the                                                  period  commencing  on  the  date  such  Event  of  Default                                                  occurred and ending on the Early Termination Date with                                                  respect to such Event of Default (or, if earlier, the date on                                                  which such Event of Default is no longer continuing), as                                                  the Calculation Agent, and the parties shall work in good                                                  faith  to  execute  any  appropriate  documentation  required                                                  by such person.  Following any adjustment, determination                                                  or calculation by the Calculation Agent hereunder, upon a                                                  request  by  Counterparty,  the  Calculation  Agent  shall                                                  promptly  (but  in  any  event  within  three  (3)  Exchange                                                  Business Days) provide to Counterparty by e-mail to the                                                  e-mail address provided by Counterparty in such request a                                                  report (in a commonly used file format for the storage and                                                  manipulation  of  financial  data)  displaying  in  reasonable                                                  detail  the  basis  for  such  adjustment,  determination  or                                                  calculation  (including  any  assumptions  used  in  making                                                  such  adjustment,  determination  or  calculation),  it  being                                                  understood  that  the  Calculation  Agent  shall  not  be                                                  obligated  to  disclose  any  proprietary  or  confidential                                                  models  used  by  it  for  such  adjustment,  determination  or                                                  calculation  or  any  information  that  is  proprietary  or                                                  confidential  or  subject  to  an  obligation  not  to  disclose                                                  such information. All calculations and determinations by                                                  the Calculation Agent shall be made in good faith and in a                                                  commercially reasonable manner.   5.     Account Details.          (a)     Account for payments to Counterparty:                  [Bank:                 [_________________]                 ABA#:                  [_________________]                 Acct No.:              [_________________]                 Beneficiary:          [_________________]                 SWIFT:               [_________________]                 Beneficiary Address: [_________________]                                                                                                                      15                                                                                               





 






                                                                                                                                                                                                                                                                                                                          Account for delivery of Shares to Counterparty:                    [_________________]7         (b)     Account for payments to Dealer:                  [_____]                  Account for delivery of Shares from Dealer:                  [_____]   6.     Offices.          (a)     The Office of Counterparty for the Transaction is:  Inapplicable, Counterparty is not a Multibranch                 Party.          (b)     The Office of Dealer for the Transaction is: [_____]   7.     Notices.            (a)     Address for notices or communications to Counterparty:                  Five9, Inc.                  4000 Executive Parkway, Suite 400                 San Ramon, CA 94583                 Attention:     Barry Zwarenstein, Chief Financial Officer                 Telephone No.:  [___________]                 Facsimile No.: [___________]          (b)     Address for notices or communications to Dealer:                  [____________________]                 Attention:     [Title of contact]                  Telephone No.: [____________]                 Facsimile No.:     [____________]   8.     Representations and Warranties of Counterparty.          Each of the representations and warranties of Counterparty set forth in Section 3 of the Purchase Agreement         (the  “Purchase Agreement”)  dated  as  of  May  [__],  2020,  between  Counterparty  and  J.P.  Morgan         Securities LLC, as representative of the Initial Purchasers party thereto (the “Initial Purchasers”), are true         and  correct  and  are  hereby deemed  to  be  repeated  to  Dealer  as  if  set  forth  herein.   Counterparty  hereby         further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date         that:            (a)     Counterparty has all necessary corporate power and authority to execute, deliver and perform its                 obligations  in  respect  of  the  Transaction; such  execution,  delivery  and  performance  have  been                 duly authorized by all necessary corporate action on Counterparty’s part; and this Confirmation                 has  been  duly  and validly  executed  and delivered  by  Counterparty  and  constitutes  its  valid  and                 binding  obligation,  enforceable  against  Counterparty  in  accordance  with  its  terms,  subject  to                 applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar                 laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general                 principles of  equity,  including  principles  of  commercial  reasonableness,  good  faith  and  fair                 dealing  (regardless  of  whether  enforcement  is  sought  in  a  proceeding  at  law  or  in  equity)  and                                   7 Issuer to confirm.                                                                                                   16                                                                                               





 






                                                                                                                                                                                                                                                                                                              except that rights to indemnification and contribution hereunder may be limited by federal or state          securities laws or public policy relating thereto.   (b)     Neither  the  execution  and  delivery  of  this  Confirmation  nor  the  incurrence  or  performance  of          obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of          incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or          regulation,  or  any  order,  writ,  injunction  or  decree  of  any  court  or  governmental  authority  or          agency, or any agreement or instrument to which Counterparty or any of its subsidiaries is a party          or by which Counterparty or any of its subsidiaries is bound or to which Counterparty or any of its          subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any          such agreement or instrument.   (c)     No consent, approval, authorization, or order of, or filing with, any governmental agency or body          or any court is required in connection with the execution, delivery or performance by Counterparty          of  this  Confirmation,  except such  as have been obtained or  made  and  such  as  may  be  required          under the Securities Act or state securities laws.   (d)     Counterparty is not and, after consummation of the transactions contemplated hereby, will not be          required  to  register  as  an  “investment  company”  as  such  term  is  defined  in  the  Investment          Company Act of 1940, as amended.   (e)     Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the          Commodity Exchange Act, as amended, other than a person that is an eligible contract participant          under Section 1a(18)(C) of the Commodity Exchange Act).   (f)     Each of  it  and  its  affiliates  is  not,  on  the  date hereof,  in possession  of  any  material  non-public          information with respect to Counterparty or the Shares.   (g)     No state or local (including any non-U.S. jurisdiction’s) 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.   (h)     Counterparty (A) is capable of evaluating investment risks independently, both in general and with          regard  to  all  transactions and  investment  strategies  involving a  security  or  securities;  (B)  will          exercise  independent  judgment  in  evaluating  the  recommendations  of  any  broker-dealer  or  its          associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total          assets of at least USD 50 million.   (i)     The assets of Counterparty do not constitute “plan assets” under the Employee Retirement Income          Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder          or similar law.   (j)     Prior  to the  Trade  Date,  Counterparty  represents  that  Counterparty’s  board  of  directors  has          authorized  the  Transaction  and  approved  the  Transaction  and  any  related  hedging  activity  for          purposes of Section 203 of the Delaware Corporation Law and agrees to deliver to Dealer a copy          of the resolutions of Counterparty’s board of directors covering the foregoing authorization and          approvals.   (k)     Counterparty  has  received,  read  and  understands  the  OTC  Options  Risk  Disclosure  Statement          provided by Dealer and a copy of the most recent disclosure pamphlet prepared by The Options          Clearing Corporation entitled “Characteristics and Risks of Standardized Options”.   (l)     Counterparty acknowledges that the Transaction may constitute a purchase of its equity securities          or a capital distribution.  Counterparty further acknowledges that, pursuant to the provisions of the          Coronavirus Aid, Relief and Economic Security Act (the “Cares Act”), the Counterparty and its                                                                                     17                                                                                                        





 






                                                                                                                                                                                                                                                                                                                          subsidiaries will be required to agree to certain time-bound restrictions on its ability to purchase                 Counterparty’s  equity  securities  or  make  capital  distributions  if  Counterparty  or  any  of  its                 subsidiaries receives loans, loan guarantees or direct loans (as that term is defined in the Cares                 Act) under section 4003(b) of the Cares Act.  Counterparty further acknowledges that it and its                 subsidiaries may be required to agree to certain time-bound restrictions on its ability to purchase                 Counterparty’s  equity  securities  or  make  capital  distributions  if  Counterparty  or  any  of  its                 subsidiaries receives loans, loan guarantees or direct loans (as that term is defined in the Cares                 Act) under programs or facilities established by the Board of Governors of the Federal Reserve                 System or the U.S. Department of Treasury for the purpose of providing liquidity to the financial                 system,  and  may  be  required  to  agree  to  similar  restrictions  under  programs  or  facilities                 established  in  the  future.   Accordingly,  Counterparty represents  and  warrants  that  neither  it nor                 any of its subsidiaries has applied, and throughout the term of the Transaction neither it nor any of                 its subsidiaries shall apply, for a loan, loan guarantee, direct loan (as that term is defined in the                 Cares Act) or other investment, or to receive any financial assistance or relief (howsoever defined)                 under any program or facility that (a) is established under applicable law (whether in existence as                 of the Trade Date or subsequently enacted, adopted or amended), including without limitation the                 Cares Act and the Federal Reserve Act, as amended, and (b) requires under applicable law (or any                 regulation,  guidance,  interpretation  or  other  pronouncement  thereunder),  as  a  condition  of  such                 loan, loan guarantee, direct loan (as that term is defined in the Cares Act), investment, financial                 assistance or relief, that the Counterparty agree, attest, certify or warrant that it has not, as of the                 date  specified  in  such  condition,  repurchased,  or  will  not  repurchase,  any  equity  security  of                 Counterparty,  and  that  it  has  not,  as  of  the  date  specified  in  such  condition,  made  a  capital                 distribution or will not make a capital distribution.  Counterparty further represents and warrants                 that the Premium is not being paid, in whole or in part, directly or indirectly, with funds received                 under or pursuant to any program or facility, including the U.S. Small Business Administration’s                 “Paycheck Protection Program”, that (a) is established under applicable law (whether in existence                 as of the Trade Date or subsequently enacted, adopted or amended), including without limitation                 the Cares Act and the Federal Reserve Act, as amended, and (b) requires under such applicable                 law  (or  any  regulation,  guidance,  interpretation  or  other  pronouncement  of  a  governmental                 authority with jurisdiction for such program or facility) that such funds be used for specified or                 enumerated purposes  that  do  not  include  the  purchase  of  the  Transaction  (either  by  specific                 reference  to  the  Transaction  or  by  general  reference  to  transactions  with  the  attributes  of  the                 Transaction in all relevant respects).          (m)     On and immediately after the Trade Date and the Premium Payment Date, (A) the value of the                 total  assets  of  Counterparty  is  greater  than  the  sum  of  the  total  liabilities  (including  contingent                 liabilities) and the capital (as such terms are defined in Section 154 and Section 244 of the General                 Corporation  Law  of  the  State  of  Delaware)  of  Counterparty,  (B)  the  capital  of  Counterparty  is                 adequate to conduct the business of Counterparty, and Counterparty’s entry into the Transaction                 will not impair its capital, (C) Counterparty has the ability to pay its debts and obligations as such                 debts mature and does not intend to, or does not believe that it will, incur debt beyond its ability to                 pay  as  such  debts  mature,  (D)  Counterparty  will  be  able  to  continue  as  a  going  concern;  (E)                 Counterparty  is  not  “insolvent”  (as  such  term  is  defined  under  Section  101(32)  of  the  U.S.                 Bankruptcy  Code  (Title  11  of  the  United  States  Code)  (the  “Bankruptcy  Code”))  and  (F)                 Counterparty would be able to purchase the number of Shares with respect to the Transaction in                 compliance with  the  laws  of  the  jurisdiction  of  Counterparty’s  incorporation  (including  the                 adequate  surplus  and  capital  requirements  of  Sections  154  and  160  of  the  General  Corporation                 Law of the State of Delaware).   9.     Other Provisions.          (a)     Opinions.  Counterparty shall deliver to Dealer an opinion of counsel, dated as of the Trade Date,                 with respect to the matters set forth in Sections 8(a) through (c) of this Confirmation.  Delivery of                 such opinion to Dealer shall be a condition precedent for the purpose of Section 2(a)(iii) of the                 Agreement with respect to each obligation of Dealer under Section 2(a)(i) of the Agreement.                                                                                                   18                                                                                               





 






                                                                                                                                                                                                                                                                                                                  (b)     Repurchase  Notices.   Counterparty  shall,  on  any  day  on  which  Counterparty  effects  any                 repurchase of Shares, promptly give Dealer a written notice of such repurchase (a “Repurchase                 Notice”)  on  such  day  if  following  such  repurchase,  the  number  of  outstanding  Shares  as                 determined on such day is (i) less than [__]8 million (in the case of the first such notice) or (ii)                 thereafter  more  than  [__]9 million  less  than  the  number  of  Shares  included  in  the  immediately                 preceding Repurchase Notice.  Counterparty agrees to indemnify and hold harmless Dealer and its                 affiliates  and  their  respective  officers,  directors,  employees,  affiliates,  advisors,  agents  and                 controlling persons (each, an “Indemnified Person”) from and against any and all commercially                 reasonable losses (including losses relating to Dealer’s commercially reasonable hedging activities                 as  a  consequence  of  becoming,  or  of the  risk  of  becoming,  a  Section  16  “insider”,  including                 without limitation, any forbearance from hedging activities or cessation of hedging activities and                 any losses in connection therewith with respect to the Transaction), claims, damages, judgments,                 liabilities  and  expenses  (including  reasonable  attorney’s  fees),  joint  or  several,  which  an                 Indemnified Person may become subject to, as a result of Counterparty’s failure to provide Dealer                 with  a  Repurchase  Notice  on  the  day  and  in  the  manner  specified  in  this  paragraph,  and  to                 reimburse,  within  30  days,  upon  written  request,  each  of  such  Indemnified  Persons  for  any                 commercially  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 as a                 result of Counterparty’s failure to provide Dealer with a Repurchase Notice in accordance with                 this  paragraph,  such  Indemnified  Person  shall  promptly  notify  Counterparty  in  writing,  and                 Counterparty, upon request of the Indemnified Person, shall retain counsel reasonably satisfactory                 to the Indemnified Person to represent the Indemnified Person and any others Counterparty may                 designate in such proceeding and shall pay the commercially reasonable fees and expenses of such                 counsel  related  to  such  proceeding.   Counterparty  shall  not  be  liable  for  any  settlement  of  any                 proceeding  contemplated  by  this  paragraph  that  is  effected  without  its  written  consent,  but  if                 settled with such consent or if there be a final judgment for the plaintiff, Counterparty agrees to                 indemnify any Indemnified Person from and against any commercially reasonable loss or liability                 by  reason  of  such  settlement  or  judgment.   Counterparty  shall  not,  without  the  prior  written                 consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding                 contemplated by this paragraph that is in respect of which any Indemnified Person is or could have                 been a party and indemnity could have been sought hereunder by such Indemnified Person, unless                 such settlement includes an unconditional release of such Indemnified Person from all liability on                 claims  that  are  the  subject  matter  of  such  proceeding  on  terms  reasonably  satisfactory  to  such                 Indemnified  Person.   If  the  indemnification  provided  for  in  this  paragraph  is  unavailable  to  an                 Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred                 to  therein,  then  Counterparty  hereunder,  in  lieu  of  indemnifying  such  Indemnified  Person                 thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result                 of such commercially reasonable losses, claims, damages or liabilities.  The remedies provided for                 in  this  paragraph (b) are  not  exclusive  and  shall  not  limit  any  rights  or  remedies  which  may                 otherwise  be  available  to  any  Indemnified  Person  at  law  or  in  equity.   The  indemnity  and                 contribution agreements contained in this paragraph shall remain operative and in full force and                 effect regardless of the termination of the Transaction.                                    8 Insert the number of Shares outstanding that would cause Dealer’s current position in the Shares underlying the Transaction  (including the number of Shares underlying any additional transaction if the greenshoe is exercised in full, and any Shares under  pre-existing  call  option  transactions  with  Counterparty)  to  increase  by  0.5%.  To  be  determined  with  respect  to  Dealer  with  highest Applicable Percentage.  9 Insert the number of Shares that, if repurchased, would cause Dealer’s current position in the Shares underlying the Transaction  (including the number of Shares underlying any additional transaction if the greenshoe is exercised in full, and any Shares under  pre-existing call option transactions with Counterparty) to increase by a further 0.5% from the threshold for the first Repurchase  Notice. To be determined with respect to Dealer with highest Applicable Percentage.                                                                                                   19                                                                                               





 






                                                                                                                                                                                                                                                                                                      (c)     Regulation M.  Counterparty is not on the Trade Date engaged in a distribution, as such term is          used in Regulation M under the Securities Exchange Act of 1934, as amended (the “Exchange          Act”), of any securities of Counterparty, other than a distribution meeting the requirements of the          exception set forth in Rules 101(b)(10) and 102(b)(7) of Regulation M.  Counterparty shall not,          until the second Scheduled Trading Day immediately following the Effective Date, engage in any          such distribution.   (d)     No Manipulation.  Counterparty is not entering into the Transaction to create actual or apparent          trading activity in the Shares (or any security convertible into or exchangeable for the Shares) or to          raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or          exchangeable for the Shares) or otherwise in violation of the Exchange Act.   (e)     Transfer or Assignment.             (i)    Counterparty shall have the right to transfer or assign its rights and obligations hereunder                 with  respect  to  all,  but  not  less  than  all,  of  the  Options  hereunder  (such  Options,  the                 “Transfer Options”); provided that  such  transfer  or  assignment  shall  be  subject  to                 reasonable conditions that Dealer may impose, including but not limited, to the following                 conditions:                  (A)     With respect to any Transfer Options, Counterparty shall not be released from                         its  notice  and  indemnification  obligations  pursuant  to  Section 9(b) or  any                         obligations under Section 9(n) or 9(s) of this Confirmation;                  (B)     Any Transfer Options shall only be transferred or assigned to a third party that is                         a  United  States  person  (as  defined  in  the  Internal  Revenue  Code  of  1986,  as                         amended);                  (C)     Such transfer or assignment shall be effected on terms, including any reasonable                         undertakings by such third party (including, but not limited to, an undertaking                         with respect to compliance with applicable securities laws in a manner that, in                         the  reasonable  judgment  of  Dealer,  will  not  expose  Dealer  to  material  risks                         under  applicable  securities  laws)  and  execution  of  any  documentation  and                         delivery of legal opinions with respect to securities laws and other matters by                         such third party and Counterparty, as are requested and reasonably satisfactory                         to Dealer;                  (D)     Dealer will not, as a result of such transfer and assignment, be required to pay                         the  transferee  on  any payment  date  an  amount  under  Section  2(d)(i)(4) of  the                         Agreement greater than an amount that Dealer would have been required to pay                         to Counterparty in the absence of such transfer and assignment;                  (E)     An Event of Default, Potential Event of Default or Termination Event will not                         occur as a result of such transfer and assignment;                  (F)     Without  limiting  the  generality  of  clause (B),  Counterparty shall  cause  the                         transferee  to  make  such  Payee  Tax  Representations  and  to  provide  such  tax                         documentation  as  may  be  reasonably  requested  by  Dealer  to  permit  Dealer  to                         determine that results described in clauses (D) and (E) will not occur upon or                         after such transfer and assignment; and                  (G)     Counterparty  shall  be  responsible  for  all  commercially  reasonable  costs  and                         expenses, including commercially reasonable counsel fees, incurred by Dealer in                         connection with such transfer or assignment.                                                                                       20                                                                                                        





 






                                                                                                                                                                                                                                                                              (ii)   Dealer may, without Counterparty’s consent, transfer or assign all or any part of its rights         or obligations under the Transaction (A) to any affiliate of Dealer (1) that has a long-term         issuer  rating  that  is  equal  to  or  better  than  Dealer’s  credit  rating  at  the  time  of  such         transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to         the  terms  of  a  customary  guarantee  in  a  form used  by  Dealer  generally  for  similar         transactions, by Dealer or its ultimate parent, or (B) to any other third party with a long-        term issuer rating equal to or better than the lesser of (1) the credit rating of Dealer at the         time of the transfer and (2) A- by Standard and Poor’s Rating Group, Inc. or its successor         (“S&P”),  or  A3  by  Moody’s  Investor  Service,  Inc.  (“Moody’s”)  or,  if  either  S&P  or         Moody’s ceases to rate such debt, at least an equivalent rating or better by a substitute         rating agency mutually agreed by Counterparty and Dealer.  If at any time at which (A)         the  Section  16  Percentage  exceeds  8.5%,  (B)  the  Option  Equity  Percentage  exceeds         15.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any         such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”),         Dealer  is  unable  after  using  its  commercially  reasonable  efforts  to  effect  a  transfer  or         assignment of Options to a third party on pricing terms reasonably acceptable to Dealer         and within a time period reasonably acceptable to Dealer such that no Excess Ownership         Position  exists,  then  Dealer  may  designate  any  Exchange  Business  Day  as  an  Early         Termination  Date  with  respect  to  a  portion  of  the  Transaction  (the  “Terminated         Portion”),  such  that  following  such  partial  termination  no  Excess  Ownership  Position         exists.  In the event that Dealer so designates an Early Termination Date with respect to a         portion  of  the  Transaction,  a  payment  shall  be  made  pursuant  to  Section  6  of  the         Agreement  as  if  (1)  an Early  Termination  Date  had  been  designated  in  respect  of  a         Transaction having terms identical to the Transaction and a Number of Options equal to         the number of Options underlying the Terminated Portion, (2) Counterparty were the sole         Affected  Party  with  respect  to  such  partial  termination  and  (3)  the Terminated  Portion         were  the  sole Affected Transaction  (and,  for  the  avoidance  of  doubt,  the  provisions  of         Section 9(l) shall apply to any amount that is payable by Dealer to Counterparty pursuant         to  this  sentence  as  if  Counterparty  was  not  the  Affected  Party).   The  “Section  16         Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator         of which is the number of Shares that Dealer and any of its affiliates or any other person         subject to aggregation with Dealer for purposes of the “beneficial ownership” test under         Section 13 of the Exchange Act, or any “group” (within the meaning of Section 13 of the         Exchange  Act)  of  which  Dealer  is  or  may  be  deemed  to  be  a  part  beneficially  owns         (within the meaning of Section 13 of the Exchange Act), without duplication, on such day         (or, to the extent that for any reason the equivalent calculation under Section 16 of the         Exchange Act and the rules and regulations thereunder results in a higher number, such         higher number) and (B) the denominator of which is the number of Shares outstanding on         such day.  The “Option Equity Percentage” as of any day is the fraction, expressed as a         percentage, (A) the numerator of which is the sum of (1) the product of the Number of         Options and the Option Entitlement and (2) the aggregate number of Shares underlying         any other call option transaction sold by Dealer to Counterparty, and (B) the denominator         of which is the number of Shares outstanding.  The “Share Amount” as of any day is the         number  of  Shares  that  Dealer  and  any  person  whose  ownership  position  would  be         aggregated with that of Dealer (Dealer or any such person, a “Dealer Person”) under any         law,  rule,  regulation,  regulatory  order  or  organizational  documents  or  contracts  of         Counterparty  that  are,  in  each  case,  applicable  to  ownership  of  Shares  (“Applicable         Restrictions”), owns, beneficially owns, constructively owns, controls, holds the power         to  vote  or  otherwise  meets  a  relevant  definition  of  ownership  under  any  Applicable         Restriction, as determined by Dealer in its reasonable discretion.  The “Applicable Share         Limit” means a number of Shares equal to (A) the minimum number of Shares that could         give  rise  to  reporting  or  registration  obligations  or  other  requirements  (including         obtaining prior approval from any person or entity) of a Dealer Person, or could result in         an adverse effect on a Dealer Person, under any Applicable Restriction, as determined by                                                                      21                                                                                                





 






                                                                                                                                                                                                                                                                                                                     Dealer in its commercially reasonable discretion, minus (B) 1% of the number of Shares                 outstanding.            (iii)  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,  or                 make or receive any payment in cash, to or from Counterparty, Dealer may designate any                 of its affiliates to purchase, sell, receive or deliver such Shares or other securities, or to                 make or receive such payment in cash, and otherwise to perform Dealer’s obligations in                 respect of the Transaction and any such designee may assume such obligations.  Dealer                 shall  be  discharged  of  its  obligations  to  Counterparty  to  the  extent  of  any  such                 performance.   (f)     Staggered Settlement.  If upon advice of counsel with respect to applicable legal and regulatory          requirements, including any requirements relating to Dealer’s hedging activities hereunder, Dealer          reasonably determines that it would not be practicable or advisable to deliver, or to acquire Shares          to  deliver,  any  or  all  of  the  Shares  to  be  delivered  by  Dealer  on  any  Settlement  Date  for  the          Transaction,  Dealer  may,  by  notice  to  Counterparty  on  or  prior  to  any  Settlement  Date  (a          “Nominal  Settlement  Date”),  elect  to  deliver  the  Shares  on  two  or  more  dates  (each,  a          “Staggered Settlement Date”) as follows:           (i)    in such notice, Dealer will specify to Counterparty the related Staggered Settlement Dates                 (the first of which will be such Nominal Settlement Date and the last of which will be no                 later  than  the  twentieth  (20th)  Exchange  Business  Day  following  such  Nominal                 Settlement  Date)  and  the  number  of  Shares  that  it  will  deliver  on  each  Staggered                 Settlement Date;            (ii)   the aggregate number of Shares that Dealer will deliver to Counterparty hereunder on all                 such  Staggered  Settlement  Dates  will  equal  the  number  of  Shares  that  Dealer  would                 otherwise be required to deliver on such Nominal Settlement Date; and           (iii)  if the Net Share Settlement terms or the Combination Settlement terms set forth above                 were to apply on the Nominal Settlement Date, then the Net Share Settlement terms or                 the Combination  Settlement  terms,  as  the  case  may  be,  will  apply  on  each  Staggered                 Settlement  Date,  except  that  the  Shares  otherwise  deliverable  on  such  Nominal                 Settlement Date will be allocated among such Staggered Settlement Dates as specified by                 Dealer in the notice referred to in clause (i) above.   (g)     [Insert Dealer agency boilerplate, including QFC language, if applicable]   (h)     [Reserved]   (i)     Additional Termination Events.             (i)    Notwithstanding  anything  to  the  contrary  in  this Confirmation,  upon  any  Early                 Conversion in respect of which a “Notice of Conversion” (as such term is defined in the                 Indenture)  that  is  effective  as  to  Counterparty  has  been  delivered  by  the  relevant                 converting Holder:                  (A)     Counterparty  shall,  within  three Scheduled  Trading  Days  of  the  Conversion                         Date for such Early Conversion, provide written notice (an “Early Conversion                         Notice”) to Dealer specifying the number of Convertible Notes surrendered for                         conversion  on  such  Conversion  Date  (such  Convertible  Notes, the  “Affected                         Convertible  Notes”),  and  the  giving  of  such  Early  Conversion  Notice shall                         constitute an Additional Termination Event as provided in this clause (i);                                                                                       22                                                                                                        





 






                                                                                                                                                                                                                                                                                                                                 (B)     upon  receipt  of  any  such  Early  Conversion Notice,  Dealer  shall  designate  an                                Exchange  Business  Day  as  an  Early  Termination  Date  (which  Exchange                                Business Day shall be no earlier than three Scheduled Trading Days following                                the Conversion Date for such Early Conversion) with respect to the portion of                                the Transaction corresponding to a number of Options (the “Affected Number                                of Options”) equal to the lesser of (x) the number of Affected Convertible Notes                                [minus the “Affected Number of Options” (as defined in the Base Call Option                                Confirmation), if any, that relate to such Affected Convertible Notes]10 and (y)                                the Number of Options as of the Conversion Date for such Early Conversion;                         (C)     any  payment  hereunder  with  respect  to  such  termination  shall  be  calculated                                pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had                                been  designated  in  respect  of  a  Transaction having  terms  identical  to  the                                Transaction and a Number of Options equal to the Affected Number of Options,                                (y) Counterparty were the sole Affected Party with respect to such Additional                                Termination  Event  and  (z)  the  terminated  portion  of  the  Transaction  were  the                                sole Affected Transaction;                          (D)     for the avoidance of doubt, in determining the amount payable in respect of such                                Affected  Transaction  pursuant  to  Section  6  of  the  Agreement,  the  Calculation                                Agent shall assume that (x) the relevant Early Conversion and any conversions,                                adjustments, agreements, payments, deliveries or acquisitions by or on behalf of                                Counterparty  leading  thereto  had  not  occurred,  (y)  no  adjustments  to  the                                Conversion Rate have occurred pursuant to any Excluded Provision and (z) the                                corresponding Convertible Notes remain outstanding; and                         (E)     the  Transaction  shall  remain  in  full  force  and  effect,  except  that,  as  of  the                                Conversion  Date  for  such  Early  Conversion,  the Number  of  Options  shall  be                                reduced by the Affected Number of Options.                  (ii)   Notwithstanding anything to the contrary in this Confirmation if an event of default with                        respect to Counterparty occurs under the terms of the Convertible Notes as set forth in                        Section 6.01 of the Indenture, then such event of default shall constitute an Additional                        Termination  Event  applicable  to  the  Transaction  and,  with  respect  to  such  Additional                        Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B)                        the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party                        entitled  to  designate  an  Early  Termination  Date  pursuant  to  Section  6(b)  of  the                        Agreement.                  (iii)  Notwithstanding  anything  to  the  contrary  in  this  Confirmation,  the  occurrence of  an                        Amendment  Event  shall  constitute  an  Additional  Termination  Event  applicable  to  the                        Transaction  and,  with  respect  to  such Additional  Termination  Event,  (A)  Counterparty                        shall  be  deemed  to  be  the  sole  Affected  Party,  (B)  the  Transaction  shall  be  the  sole                        Affected  Transaction  and  (C)  Dealer  shall  be  the  party  entitled  to  designate  an  Early                        Termination  Date  pursuant  to  Section  6(b)  of  the  Agreement.  “Amendment  Event”                        means that Counterparty amends, modifies, supplements, waives or obtains a waiver in                        respect  of  any  term  of  the  Indenture  or  the  Convertible  Notes  governing  the  principal                        amount,  coupon,  maturity,  repurchase  obligation  of  Counterparty,  redemption  right  of                        Counterparty,  any  term  relating  to  conversion  of  the  Convertible  Notes  (including                        changes to  the  conversion  rate,  conversion  rate  adjustment  provisions,  conversion                        settlement dates or conversion conditions), or any term that would require consent of the                        holders of not less than 100% of the principal amount of the Convertible Notes to amend                        (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(l)                                   10 Include in Additional Call Option Confirmation only.                                                                                                   23                                                                                               





 






                                                                                                                                                                                                                                                                                                                                 of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to                        the  description  of  Convertible  Notes  in  the  Offering  Memorandum  or  (y)  pursuant  to                        Section 14.07 of the Indenture), in each case, without the consent of Dealer.                  (iv)   Promptly (but in any event within one Scheduled Trading Day) following any Repayment                        Event (as defined below), Counterparty shall notify Dealer of such Repayment Event and                        the aggregate principal amount of Convertible Notes subject to such Repayment Event                        (any  such  notice,  a  “Repayment  Notice”); provided that  any  such  Repayment  Notice                        shall contain an acknowledgment by Counterparty of its responsibilities under applicable                        securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act and the                        rules and regulations thereunder, in respect of such Repayment Event and the delivery of                        such  Repayment  Notice[; provided  further that  any  “Repayment  Notice”  delivered  to                        Dealer  pursuant  to  the  Base  Call  Option  Confirmation  shall  be  deemed  to  be  a                        Repayment  Notice  pursuant  to  this  Confirmation  and  the  terms  of  such  Repayment                        Notice shall apply, mutatis mutandis, to this Confirmation]11. The receipt by Dealer from                        Counterparty of any Repayment Notice shall constitute an Additional Termination Event                        as provided in this Section 9(i)(iv). Upon receipt of any such Repayment Notice, Dealer                        shall designate an Exchange Business Day following receipt of such Repayment Notice                        as an Early Termination Date with respect to the portion of the Transaction corresponding                        to a number of Options (the “Repayment Options”) equal to the lesser of (A) [(x)] the                        aggregate  principal  amount  of  such  Convertible  Notes  specified  in  such  Repayment                        Notice, divided  by USD  1,000[, minus (y)  the  number  of  “Repayment  Options”  (as                        defined  in  the  Base  Call  Option  Confirmation),  if  any,  that  relate  to  such  Convertible                        Notes (and for the purposes of determining whether any Options under this Confirmation                        or  under,  and  as  defined  in,  the  Base  Call  Option  Confirmation  will  be  among  the                        Repayment  Options  hereunder  or under,  and  as  defined  in,  the  Base  Call  Option                        Confirmation,  the  Convertible  Notes  specified  in  such  Repayment  Notice  shall  be                        allocated  first  to  the  Base  Call  Option  Confirmation  until  all  Options  thereunder  are                        exercised  or  terminated)]12,  and  (B)  the  Number  of  Options  as  of  the  date  Dealer                        designates such Early Termination Date and, as of such date, the Number of Options shall                        be reduced by the number of Repayment Options. Any payment hereunder with respect to                        such termination shall be calculated pursuant to Section 6 of the Agreement as if (1) an                        Early  Termination  Date  had  been  designated  in  respect  of  a  Transaction  having  terms                        identical to the Transaction and a Number of Options equal to the number of Repayment                        Options, (2) Counterparty were the sole Affected Party with respect to such Additional                        Termination  Event  and  (3)  the  terminated  portion  of  the  Transaction  were  the  sole                        Affected  Transaction.   “Repayment  Event”  means  that  (i)  any  Convertible  Notes  are                        repurchased  (whether  pursuant  to  Section  15.02 of  the  Indenture,  pursuant  to  Section                        16.01 of the Indenture or for any other reason) by Counterparty or any of its subsidiaries,                        (ii)  any  Convertible  Notes  are  delivered  to  Counterparty  or  any  of  its  subsidiaries  in                        exchange for delivery of any property or assets of such party (howsoever described), (iii)                        any principal of any of the Convertible Notes is repaid prior to the final maturity date of                        the Convertible Notes (for any reason other than as a result of an event of default that                        results in an Additional Termination Event pursuant to the preceding Section 9(i)(ii), or                        (iv) any Convertible Notes are exchanged by or for the benefit of the Holders (as such                        term is defined in the Indenture) thereof for any other securities of Counterparty or any of                        its  subsidiaries  (or  any  other  property,  or  any  combination  thereof)  pursuant  to  any                        exchange  offer  or  similar  transaction.   For  the  avoidance  of  doubt,  any  conversion  of                        Convertible Notes pursuant to the terms of the Indenture shall not constitute a Repayment                        Event.                                   11 Insert for Additional Call Option Confirmation.  12 Insert for Additional Call Option Confirmation.                                                                                                   24                                                                                               





 






                                                                                                                                                                                                                                                                                                      (j)     Amendments to Equity Definitions.             (i)    Section  11.2(e)(vii)  of  the  Equity  Definitions  is  hereby amended  by  (1)  deleting  the                 words  “a  diluting  or  concentrative”  and  replacing  them  with  the  words  “in  the                 commercially  reasonable judgment  of  the  Calculation  Agent,  a  material  economic”;                 provided that such event is not based on (a) an observable market, other than the market                 for Counterparty’s own stock or (b) an observable index, other than an index calculated                 or  measured  solely  by reference  to  Counterparty’s  own  operations,  and  (2)  adding  the                 phrase “or the Options” at the end of the sentence.           (ii)   Section  12.6(a)(ii)  of  the  Equity  Definitions  is  hereby  amended  by  (1)  inserting  “(1)”                 immediately  following  the  word  “means”  in  the  first  line  thereof  and  (2)  inserting                 immediately  prior  to  the  semi-colon  at  the  end  of  subsection (B)  thereof  the  following                 words:  “or (2)  the  occurrence  of  any  of  the  events  specified  in  Section  5(a)(vii)(1)                 through (9) of the ISDA Master Agreement with respect to that Issuer”.           (iii)  Section 12.9(b)(i) of the Equity Definitions is hereby amended by (1) replacing “either                 party may elect” with “Dealer may elect” and (2) replacing “notice to the other party”                 with “notice to Counterparty” in the first sentence of such section.           (iv)   Section 12.9(b)(vi) of the Equity Definitions is hereby amended by (1) adding the word                 “or”  immediately  before  subsection “(B)”,  (2)  deleting  the  comma  at  the  end  of                 subsection  (A),  (3)  deleting  subsection  (C)  in  its  entirety,  (4)  deleting  the  word  “or”                 immediately preceding subsection (C) and (5) replacing the words “either party” in the                 last sentence of such Section with “Dealer”.   (k)     No Setoff.  Neither party shall have the right to set off any obligation that it may have to the other          party under the Transaction against any obligation such other party may have to it, whether arising          under  the  Agreement,  this  Confirmation  or  any other  agreement  between  the  parties  hereto,  by          operation of law or otherwise.   (l)     Alternative  Calculations  and  Payment  on  Early  Termination  and  on  Certain   Extraordinary          Events.   If  (a)  an  Early  Termination  Date  (whether  as  a  result  of  an  Event  of  Default,  a          Termination Event or an Additional Termination Event) occurs or is designated with respect to the          Transaction  or  (b)  the  Transaction  is  cancelled  or  terminated  upon  the  occurrence  of  an          Extraordinary  Event  (except as  a  result  of  (i)  a  Nationalization,  Insolvency  or  Merger Event  in          which  the  consideration  to  be  paid  to  holders  of  Shares  consists  solely  of  cash,  (ii)  an          Announcement Event, Merger Event or Tender Offer that is within Counterparty’s control, or (iii)          an  Event  of  Default  in  which  Counterparty  is the  Defaulting  Party  or  a  Termination  Event  in          which Counterparty is the Affected Party other than an Event of Default of the type described in          Section  5(a)(iii),  (v),  (vi),  (vii)  or  (viii)  of  the  Agreement  or  a  Termination  Event  of  the  type          described  in Section  5(b)  of the  Agreement,  in  each  case  that  resulted  from  an  event  or  events          outside Counterparty’s control), and if Dealer would owe any amount to Counterparty pursuant to          Section 6(d)(ii) of the Agreement or any Cancellation Amount pursuant to Article 12 of the Equity          Definitions (any such amount, a “Payment Obligation”), then Dealer shall satisfy the Payment          Obligation by the Share Termination Alternative (as defined below), unless (a) Counterparty gives          irrevocable telephonic notice to Dealer, confirmed in writing within one Scheduled Trading Day,          no later than 12:00 p.m. (New York City time) on the date of the Announcement Event, Merger          Date,  Tender  Offer  Date,  Announcement  Date  (in  the  case  of  a  Nationalization,  Insolvency  or          Delisting), Early Termination Date or date of cancellation, as applicable, of its election that the          Share  Termination  Alternative  shall  not  apply,  (b) Counterparty  remakes  the  representation  set          forth in Section 8(f) as of the date of such election and (c) Dealer agrees, in its sole discretion, to          such  election,  in  which  case  the  provisions  of  Section  12.7  or Section  12.9  of  the  Equity          Definitions, or the provisions of Section 6(d)(ii) of the Agreement, as the case may be, shall apply.                                                                                        25                                                                                                        





 






                                                                                                                                                                                                                                                                              Share Termination Alternative:       If applicable, Dealer shall deliver to Counterparty the                                       Share Termination Delivery Property on, or within a                                       commercially  reasonable  period  of  time  after,  the                                       date  when  the  relevant  Payment  Obligation  would                                       otherwise be due pursuant to Section 12.7 or 12.9 of                                       the Equity Definitions or Section 6(d)(ii) and 6(e) of                                       the Agreement, as applicable, in satisfaction of such                                       Payment  Obligation  in  the  manner  reasonably                                       requested by Counterparty free of payment.   Share Termination Delivery Property:  A  number  of  Share  Termination  Delivery  Units,  as                                       calculated  by  the  Calculation  Agent  in  a                                       commercially  reasonable  manner,  equal  to  the                                       Payment   Obligation  divided  by  the  Share                                       Termination Unit Price.  The Calculation Agent shall,                                       in  a  commercially  reasonable  manner,  adjust  the                                       Share  Termination  Delivery  Property  by  replacing                                       any  fractional  portion  of  a  security  therein  with  an                                       amount of cash equal to the value of such fractional                                       security  based  on  the  values  used  to  calculate  the                                       Share Termination Unit Price.     Share Termination Unit Price:        The  value  to  Dealer  of  property  contained  in  one                                       Share  Termination  Delivery  Unit,  as  determined  by                                       the  Calculation  Agent  in  its  discretion  by                                       commercially  reasonable  means  and  notified  by  the                                       Calculation Agent  to  Dealer  at  the  time  of                                       notification of the Payment Obligation.   Share Termination Delivery Unit:     One Share or, if the Shares have changed into cash or                                       any other property or the right to receive cash or any                                       other  property  as  the  result  of  a  Nationalization,                                       Insolvency or Merger Event (any such cash or other                                       property,  the  “Exchange  Property”),  a  unit                                       consisting of the type and amount of such Exchange                                       Property received by a holder of one Share (without                                       consideration of any requirement to pay cash or other                                       consideration  in  lieu  of  fractional  amounts  of  any                                       securities)  in  such  Nationalization,  Insolvency  or                                       Merger  Event,  as  determined  by  the  Calculation                                       Agent.   Failure to Deliver:                  Applicable   Other applicable provisions:         If  Share  Termination  Alternative is  applicable,  the                                       provisions of Sections 9.8, 9.9 and 9.11 (as modified                                       above)  of  the  Equity  Definitions  and  the  provisions                                       set  forth  opposite  the  caption  “Representation  and                                       Agreement”  in  Section  2  will  be  applicable,  except                                       that all references in such provisions to “Physically-                                      settled”  shall  be  read  as  references  to  “Share                                       Termination  Settled”  and  all  references  to  “Shares”                                       shall be  read  as  references  to  “Share  Termination                                       Delivery  Units”.   “Share  Termination  Settled”  in                                       relation  to  the  Transaction  means that  Share                                                                      26                                                                                                





 






                                                                                                                                                                                                                                                                                                                                                   Termination  Alternative  is  applicable  to  the                                               Transaction.   (m)     Waiver of Jury Trial.  Each party waives, to the fullest extent permitted by applicable law, any          right  it  may  have  to  a  trial  by  jury  in  respect  of  any  suit,  action  or  proceeding  relating  to  the          Transaction.  Each party (i) certifies that no representative, agent or attorney of either party has          represented, expressly or otherwise, that such other party would not, in the event of such a suit,          action or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the          other party have been induced to enter into the Transaction, as applicable, by, among other things,          the mutual waivers and certifications provided herein.   (n)     Registration.  Counterparty hereby agrees that if, in the good faith and commercially reasonable          judgment of Dealer, the Shares  (“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          registration under the Securities Act, Counterparty shall, at its election, either (i) in order to allow          Dealer to sell the Hedge Shares in a registered offering for companies of similar size and industry,          make available to Dealer an effective registration statement under the Securities Act and enter into          an  agreement,  in  form  and  substance  satisfactory  to  Dealer,  substantially  in  the  form  of  an          underwriting agreement for a registered secondary offering; provided, however, that if Dealer, in          its commercially reasonable discretion, is not satisfied with access to due diligence materials, the          results of its due diligence investigation, or the procedures and documentation for the registered          offering  referred  to  above,  then  clause  (ii)  or  clause  (iii)  of  this  paragraph  shall  apply  at  the          election  of  Counterparty,  (ii)  in  order  to  allow  Dealer  to  sell  the  Hedge  Shares  in  a  private          placement,  enter  into  a  private  placement  agreement  substantially  similar  to  private  placement          purchase  agreements  customary  for  private  placements  of  equity  securities  of  similar  size  and          industry, in form and substance commercially reasonably satisfactory to Dealer using reasonable          best  efforts  to  include  customary  representations,  covenants,  blue  sky  and  other  governmental          filings  and/or  registrations, indemnities  to  Dealer,  due  diligence  rights  (for  Dealer  or  any          designated  buyer  of  the  Hedge  Shares  from Dealer),  and  best  efforts  obligations  to  provide          opinions  and  certificates  and  such  other  documentation  as  is  customary  for  private  placement          agreements  of  equity  securities  of  companies  of  a  similar  size  in  a  similar  industry,  as  is          commercially reasonably acceptable to Dealer (in which case, the Calculation Agent shall make          any adjustments to the terms of the Transaction that are necessary, in its commercially reasonable          judgment,  to  compensate  Dealer  for  any  commercially  reasonable,  customary  liquidity  discount          from  the  public market  price  of  the  Shares  incurred  on  the  sale  of  Hedge  Shares  in  a  private          placement)  (provided that  no  “comfort  letter”  or accountants’  consent  shall  be  required  to  be          delivered in connection with any such private placement), or (iii) purchase the Hedge Shares from          Dealer at the then-current market price on such Exchange Business Days, and in the amounts and          at such time(s), requested by Dealer.   (o)     Tax  Disclosure.   Effective  from  the  date  of  commencement  of  discussions  concerning  the          Transaction, Counterparty and each of its employees, representatives, or other agents may disclose          to any and all persons, without limitation of any kind, the tax treatment and tax structure of the          Transaction  and  all  materials  of  any  kind  (including  opinions  or  other  tax  analyses)  that  are          provided to Counterparty relating to such tax treatment and tax structure.   (p)     Right to Extend.  Dealer may postpone or add, in whole or in part, any Valid Day or Valid Days          during  the  Settlement  Averaging  Period  or  any  other  date of  valuation, payment  or  delivery by          Dealer, with respect to some or all of the Options hereunder, if Dealer reasonably determines, in          its commercially reasonable discretion, that such action is reasonably necessary or appropriate to          preserve Dealer’s commercially reasonable hedging or hedge unwind activity hereunder in light of          existing liquidity conditions or to enable Dealer to effect purchases of Shares in connection with          its commercially reasonable hedging, hedge unwind or settlement activity hereunder in a manner          that  would,  if  Dealer  were  Counterparty  or  an  affiliated  purchaser  of  Counterparty,  be  in                                                                                      27                                                                                                        





 






                                                                                                                                                                                                                                                                                                              compliance  with  applicable  legal,  regulatory  or  self-regulatory  requirements,  or  with  related          policies and procedures applicable to Dealer.   (q)     Status  of  Claims  in  Bankruptcy.  Dealer acknowledges  and  agrees  that  this  Confirmation  is  not          intended to convey to Dealer rights against Counterparty with respect to the Transaction that are          senior  to  the  claims  of  common  stockholders  of  Counterparty  in  any  United  States  bankruptcy          proceedings of Counterparty; provided that nothing herein shall limit or shall be deemed to limit          Dealer’s right to pursue remedies in the event of a breach by Counterparty of its obligations and          agreements  with  respect  to  the  Transaction; provided, further that  nothing  herein  shall  limit  or          shall be deemed to limit Dealer’s rights in respect of any transactions other than the Transaction.   (r)     Securities Contract; Swap Agreement.  The parties hereto intend for (i) the Transaction to be a          “securities contract” and a “swap agreement” as defined in the Bankruptcy Code (Title 11 of the          United  States  Code)  (the  “Bankruptcy  Code”),  and  the  parties  hereto  to  be  entitled  to  the          protections afforded by, among other Sections, Sections 362(b)(6), 362(b)(17), 546(e), 546(g), 555          and 560 of the Bankruptcy Code, (ii) a party’s right to liquidate the Transaction and to exercise          any other remedies upon the occurrence of any Event of Default under the Agreement with respect          to the other party to constitute a “contractual right” as described in the Bankruptcy Code, and (iii)          each payment and delivery of cash, securities or other property hereunder to constitute a “margin          payment” or “settlement payment” and a “transfer” as defined in the Bankruptcy Code.   (s)     Notice of Certain Other Events. Counterparty covenants and agrees that:           (i)    promptly following the public announcement of the results of any election by the holders                 of Shares with respect to the consideration due upon consummation of any Merger Event,                 Counterparty shall give Dealer written notice of (x) the weighted average of the types and                 amounts  of  consideration  received  by  holders  of  Shares  upon  consummation  of  such                 Merger Event or (y) if no holders of Shares affirmatively make such election, the types                 and  amounts  of  consideration  actually  received  by  holders  of  Shares  (the  date  of  such                 notification, the “Consideration Notification Date”); provided that in no event shall the                 Consideration  Notification  Date  be  later  than  the  date  on  which  such  Merger  Event  is                 consummated; and            (ii)   (A)  Counterparty  shall  give  Dealer  commercially  reasonable  advance  (but  in  no  event                 less  than  one  Exchange  Business  Day)  written  notice of  the  section  or  sections  of  the                 Indenture and, if applicable, the formula therein, pursuant to which any adjustment will                 be  made  to  the  Convertible  Notes  in  connection  with  any  Potential Adjustment  Event,                 Merger  Event  or  Tender  Offer  and  (B)  promptly  following  any  such  adjustment,                 Counterparty shall give Dealer written notice of the details of such adjustment.   (t)     Wall  Street  Transparency  and  Accountability  Act.   In  connection  with  Section  739  of  the  Wall          Street Transparency and Accountability Act of 2010 (“WSTAA”), the parties hereby agree that          neither the enactment of WSTAA or any regulation under the WSTAA, nor any requirement under          WSTAA  or  an  amendment  made  by  WSTAA,  shall  limit  or  otherwise  impair  either  party’s          otherwise  applicable  rights  to  terminate, renegotiate,  modify,  amend  or  supplement  this          Confirmation  or  the  Agreement,  as  applicable,  arising  from  a  termination  event,  force majeure,          illegality, increased costs, regulatory change or similar event under this Confirmation, the Equity          Definitions  incorporated  herein,  or  the  Agreement  (including,  but  not  limited  to,  rights  arising          from  Change  in  Law,  Hedging  Disruption,  Increased  Cost  of  Hedging,  an  Excess  Ownership          Position, or Illegality (as defined in the Agreement)).   (u)     Agreements and Acknowledgements Regarding Hedging. Counterparty understands, acknowledges          and agrees that: (A) at any time on and prior to the Expiration Date, Dealer and its affiliates may          buy or sell Shares or other securities or buy or sell options or futures contracts or enter into swaps          or other derivative securities in order to adjust its hedge position with respect to the Transaction;          (B) Dealer and its affiliates also may be active in the market for Shares other than in connection                                                                                     28                                                                                                        





 






                                                                                                                                                                                                                                                                                                                          with hedging activities in relation to the Transaction; (C) Dealer shall make its own determination                 as to whether, when or in what manner any hedging or market activities in securities of Issuer shall                 be conducted and shall do so in a manner that it deems appropriate to hedge its price and market                 risk with respect to the Relevant Prices; and (D) any market activities of Dealer and its affiliates                 with respect to Shares may affect the market price and volatility of Shares, as well as the Relevant                 Prices, each in a manner that may be adverse to Counterparty.          (v)     Early Unwind. In the event the sale of the [“Underwritten Securities”]13[“Option Securities”]14 (as                 defined in the Purchase Agreement) is not consummated with the Initial Purchasers for any reason                 (other than the default by an Initial Purchaser that is or is affiliated with Dealer), or Counterparty                 fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), in each case by                 5:00 p.m. (New York City time) on the Premium Payment Date, or such later date as agreed upon                 by  the  parties  (the  Premium  Payment  Date  or  such  later  date  the “Early  Unwind  Date”), the                 Transaction shall automatically terminate (the “Early Unwind”), on the Early Unwind Date and                 (i)  the  Transaction  and  all  of  the  respective  rights  and  obligations  of  Dealer  and  Counterparty                 under the Transaction shall be cancelled and terminated and (ii) each party shall be released and                 discharged by the other party from and agrees not to make any claim against the other party with                 respect  to  any  obligations  or liabilities  of  the  other  party  arising  out of and  to  be  performed  in                 connection  with  the  Transaction  either  prior  to  or  after  the  Early  Unwind  Date; provided that                 Counterparty  shall  purchase  from  Dealer  on  the  Early  Unwind  Date  all  Shares  purchased  by                 Dealer or one or more of its affiliates in connection with the Transaction at the then prevailing                 market  price.   Each of  Dealer  and  Counterparty  represents  and  acknowledges  to  the  other  that,                 subject to the proviso included in this Section 9(v), upon an Early Unwind, all obligations with                 respect to the Transaction shall be deemed fully and finally discharged.          (w)     Payment  by  Counterparty.  In  the  event  that,  following  payment  of  the  Premium,  (i)  an  Early                 Termination  Date  occurs  or  is  designated with  respect  to  the  Transaction  as  a  result  of  a                 Termination Event or an Event of Default (other than an Event of Default arising under Section                 5(a)(ii)  or  5(a)(iv)  of  the  Agreement)  and,  as  a  result,  Counterparty  owes  to  Dealer  an  amount                 calculated under Section 6(e) of the Agreement, or (ii) Counterparty owes to Dealer, pursuant to                 Section 12.7 or Section 12.9 of the Equity Definitions, an amount calculated under Section 12.8 of                 the Equity Definitions, such amount shall be deemed to be zero.          (x)     Other Adjustments Pursuant to the Equity Definitions.  Notwithstanding anything to the contrary                 in  this  Confirmation,  solely  for  the  purpose  of  adjusting  the  Cap  Price  pursuant  to  this  Section                 9(x),  the  terms  “Potential  Adjustment  Event,”  “Merger  Event,”  and  “Tender  Offer”  shall  each                 have the meanings assigned to such term in the Equity Definitions (as amended by Section 9(j)(i)),                 and upon the occurrence of a Merger Date, the occurrence of a Tender Offer Date, or declaration                 by Counterparty of the terms of any Potential Adjustment Event, respectively, as such terms are                 defined  in  the  Equity  Definitions,  the  Calculation  Agent  may,  in  its  commercially  reasonable                 discretion, adjust the Cap Price to preserve the fair value of the Options to Dealer; provided that in                 no  event  shall  the  Cap  Price  be  less  than  the  Strike  Price; provided  further and  that  such                 adjustments  may  be  made  to  account  solely  for  changes  in  stock  price,  volatility,  expected                 dividends, interest rates, stock loan rate, value of any commercially reasonable hedge positions in                 connection with the Transaction and liquidity relevant to the Shares or to the Transaction.          (y)     Conduct  Rules.  Each  party  acknowledges  and  agrees  to  be  bound  by  the  Conduct  Rules  of  the                 Financial  Industry  Regulatory  Authority,  Inc.  applicable  to  transactions  in  options,  and  further                 agrees not to violate the position and exercise limits set forth therein.                                     13 Insert for Base Call Option Confirmation.  14 Insert for Additional Call Option Confirmation.                                                                                                   29                                                                                               





 






                                                                                                                                                                                                                                                                                                                       Please  confirm  that  the  foregoing  correctly  sets  forth  the  terms of  our  agreement  by  executing  this   Confirmation and returning it to Dealer.                                                Very truly yours,                                                        [Dealer]                                                        By:                                                           Authorized Signatory                                                       Name:          Accepted and confirmed   as of the Trade Date:    Five9, Inc.    By:     Authorized Signatory  Name: