Confirmation - Bank of America, N.A.



 Exhibit 10.42 
 CONFIDENTIAL TREATMENT REQUESTED 
 Confidential Treatment has been requested for
portions of this Exhibit. Confidential portions of this Exhibit are designated by [*]. A complete version of this Exhibit has been filed separately with the Securities and Exchange Commission. 

 

					
		  	August 24, 2010
		
	To:	  	Varian Medical Systems, Inc.
		  	3100 Hansen Way
		  	Palo Alto, CA 94304-1038
		  	Attn:	  	J.A. (Andy) Thorson / Franco Palomba
		  	Telephone:	  	650-424-5741 / 650-424-5955
		  	Facsimile:	  	650-842-5080
		
	From	  	Bank of America, N.A.
		  	c/o Merrill Lynch, Pierce, Fenner & Smith Incorporated
		  	Bank of America Tower at One Bryant Park
		  	New York, NY 10036
		  	Attn: John Servidio
		  	Telephone: 646-855-7127
		  	Facsimile: 704-208-2869
		
	Re:	  	Issuer Forward Repurchase Transaction
		  	(Transaction Reference Number: 108262768)

 Ladies and Gentlemen: 
 The purpose of this communication (this
“Confirmation”) is to confirm the terms and conditions of the Transaction entered into between Bank of America, N.A. (“BofA”) and Varian Medical Systems, Inc. (“Counterparty”) on the Trade Date
specified below (the “Transaction”). The terms of the Transaction shall be set forth in this Confirmation. This Confirmation shall constitute a “Confirmation” as referred to in the ISDA Master Agreement specified below.

 1. This Confirmation is subject to, and incorporates, the definitions and provisions of the 2000 ISDA Definitions (including the Annex
thereto) (the “2000 Definitions”) and the definitions and provisions of the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”, and together with the 2000 Definitions, the
“Definitions”), in each case as published by the International Swaps and Derivatives Association, Inc. (“ISDA”). In the event of any inconsistency between the 2000 Definitions and the Equity Definitions, the Equity
Definitions will govern. 
 This Confirmation evidences a complete and binding agreement between BofA and Counterparty as to the
terms of the Transaction to which this Confirmation relates. This Confirmation shall be subject to an agreement (the “Agreement”) in the form of the 2002 ISDA Master Agreement (the “ISDA Form”) as if BofA and
Counterparty had executed an agreement in such form (without any Schedule but with the elections set forth in this Confirmation). The Transaction shall be the only Transaction under the Agreement. 

All provisions contained in, or incorporated by reference to, the Agreement will govern this Confirmation except as expressly modified
herein. In the event of any inconsistency between this Confirmation and either the Definitions or the Agreement, this Confirmation shall govern. The Transaction is a Share Forward Transaction within the meaning set forth in the Equity Definitions.

  

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








  

			
	General Terms:	  	
		
	 Trade Date:
	  	August 24, 2010
		
	 Seller:
	  	BofA
		
	 Buyer:
	  	Counterparty
		
	 Shares:
	  	The common stock of Counterparty, par value USD 1.00 per share (Ticker Symbol: “VAR”)
		
	 Prepayment:
	  	Applicable
		
	 Prepayment Amount:
	  	As provided in Annex B to this Confirmation.
		
	 Prepayment Date:
	  	The first Exchange Business Day following the Trade Date
		
	 Exchange:
	  	The New York Stock Exchange
		
	 Related Exchange(s):
	  	All Exchanges
		
	 Calculation Agent:
	  	Bank of America, N.A.
		
	Valuation Terms:	  	
		
	 Averaging Dates:
	  	Each of the consecutive Exchange Business Days commencing on, and including, the Exchange Business Day immediately following the Trade Date and ending on, and including, the
Final Averaging Date.
		
	 Final Averaging Date:
	  	The Scheduled Final Averaging Date; provided that BofA shall have the right, in its absolute discretion, at any time to accelerate the Final Averaging Date to any date
that is on or after the Scheduled Earliest Acceleration Date by written notice to Counterparty no later than 7:00 P.M., New York City time, on the Exchange Business Day immediately following the accelerated Final Averaging Date.
		
	 Scheduled Final Averaging
	  	
	 Date:
	  	As provided in Annex B to this Confirmation; provided that the Scheduled Final Averaging Date shall be postponed by one Exchange Business Day for each Knock-out
Day.
		
	 Scheduled Earliest Acceleration
	  	
	 Date:
	  	As provided in Annex B to this Confirmation.
		
	 Valuation Date:
	  	The Final Averaging Date.
		
	 Knock-out Day:
	  	An Averaging Date (i) for which the VWAP Price exceeds the Knock-out Level and (ii) that is not a Disrupted Day in full; provided that there may be no more than the
Maximum Number of Knock-out Days in the period commencing on, and including, the Exchange Business Day immediately following the Trade Date and ending on, and including, the Final Averaging Date and, accordingly, once the Maximum Number of Knock-out
Days is reached, no more Exchange Business Days in such period shall be Knock-out Days.
		
	 Knock-out Level:
	  	As provided in Annex B to this Confirmation.
		
	 Maximum Number of Knock-out
	  	
	 Days:
	  	As provided in Annex B to this Confirmation.
		
	 Averaging Date Disruption:
	  	Modified Postponement, provided that notwithstanding anything to the contrary in the Equity Definitions, if a Market Disruption Event occurs on any Averaging Date, the
Calculation Agent may, in its good faith and commercially reasonable discretion, and if appropriate in light of market conditions, regulatory considerations or otherwise,


  
 2 









			
		  	take any or all of the following actions: (i) postpone the Scheduled Final Averaging Date in accordance with Modified Postponement (as modified herein) and/or (ii) determine that
such Averaging Date is a Disrupted Day only in part, in which case the Calculation Agent shall (x) determine the VWAP Price for such Disrupted Day based on Rule 10b-18 eligible transactions in the Shares on such Disrupted Day taking into account the
nature and duration of such Market Disruption Event and (y) determine the Settlement Price based on an appropriately weighted average instead of the arithmetic average described under “Settlement Price” below. Any adjustment to the
Settlement Price will be made in good faith and in a commercially reasonable manner by the Calculation Agent and will be based on, among other factors, the duration of any Market Disruption Event and the volume, historical trading patterns and price
of the Shares. Any Exchange Business Day on which, as of the date hereof, the Exchange is scheduled to close prior to its normal close of trading shall be deemed not to be an Exchange Business Day; if a closure of the Exchange prior to its normal
close of trading on any Exchange Business Day is scheduled following the date hereof, then such Exchange Business Day shall be deemed to be a Disrupted Day in full. Section 6.6(a) of the Equity Definitions is hereby amended by replacing the word
“shall” in the fifth line thereof with the word “may,” and by deleting clause (i) thereof, and Section 6.7(c)(iii)(A) of the Equity Definitions is hereby amended by replacing the word “shall” in the sixth and eighth
line thereof with the word “may.”
		
	 Market Disruption Events:
	  	Section 6.3(a) of the Equity Definitions is hereby amended (A) by replacing the words “during the one hour period that ends at the relevant Valuation Time, Latest Exercise
Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be” with “on any Scheduled Trading Day during the Settlement Valuation Period” in clause (ii) thereof, and (B) by replacing the words “or (iii) an Early
Closure.” therein with “(iii) an Early Closure, or (iv) a Regulatory Disruption.”
		
		  	Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the term “Scheduled Closing Time” in the fourth line
thereof.
		
	 Regulatory Disruption:
	  	Any event that BofA, in its good faith and commercially reasonable discretion, determines makes it appropriate with regard to any legal, regulatory or self-regulatory
requirements or related policies and procedures for BofA to refrain from or decrease any market activity in connection with the Transaction. BofA shall notify Counterparty as soon as reasonably practicable that a Regulatory Disruption has occurred
and the Averaging Dates affected by it.
		
	Settlement Terms:	  	
		
	 Initial Share Delivery:
	  	On the Initial Share Delivery Date, BofA shall deliver to Counterparty the Initial Shares.
		
	 Initial Share Delivery Date:
	  	The first Exchange Business Day following the Trade Date.
		
	 Initial Shares:
	  	As provided in Annex B to this Confirmation.
		
	 Settlement Date:
	  	If the number of Shares to be Delivered is positive, the date that falls one Settlement Cycle following the Valuation Date.


  
 3 








  

			
	 Settlement:
	  	On the Settlement Date, BofA shall deliver to Counterparty the Number of Shares to be Delivered, if a positive number. If the Number of Shares to be Delivered is a negative
number, the Counterparty Settlement Provisions in Annex A shall apply.
		
	 Number of Shares to be Delivered:
	  	A number of Shares equal to (a) the Prepayment Amount divided by (b) (i) the Settlement Price minus (ii) the Discount; provided that the Number of Shares to be
Delivered as so determined shall be reduced by the number of Shares delivered on the Initial Share Delivery Date.
		
	 Settlement Price:
	  	The arithmetic average of the VWAP Prices for all Averaging Dates; provided that any Averaging Date that is a Knock-out Day shall be deemed not to be an Averaging Date for
purposes of calculating the Settlement Price.
		
	 VWAP Price:
	  	For any Averaging Date, the Rule 10b-18 dollar volume weighted average price per Share for such day based on transactions executed during such day, as reported on Bloomberg Page
“VAR.N <Equity> AQR SEC” (or any successor thereto) or, in the event such price is not so reported on such day for any reason or is manifestly incorrect, as reasonably determined by the Calculation Agent using a volume weighted
method.
		
	 Discount:
	  	As provided in Annex B to this Confirmation.
		
	 Excess Dividend Amount:
	  	For the avoidance of doubt, all references to the Excess Dividend Amount in Section 9.2(a)(iii) of the Equity Definitions shall be deleted.
		
	 Other Applicable Provisions:
	  	To the extent either party is obligated to deliver Shares hereunder, the provisions of the last sentence of Section 9.2 and Sections 9.8, 9.9, 9.10, 9.11 (except that the
Representation and Agreement contained in Section 9.11 of the Equity Definitions shall be modified by excluding any representations therein relating to restrictions, obligations, limitations or requirements under applicable securities laws arising
as a result of the fact that Counterparty is the Issuer of the Shares) and 9.12 of the Equity Definitions will be applicable as if “Physical Settlement” applied to the Transaction.
		
	Dividends:	  	
		
	 Dividend:
	  	Any dividend or distribution on the Shares other than any dividend or distribution of the type described in Sections 11.2(e)(i), 11.2(e)(ii)(A) or 11.2(e)(ii)(B) of the Equity
Definitions.
		
	Share Adjustments:	  	
		
	 Method of Adjustment:
	  	Calculation Agent Adjustment; provided that the declaration or payment of Dividends shall not be a Potential Adjustment Event.
		
		  	It shall constitute an additional Potential Adjustment Event if the Scheduled Final Averaging Date is postponed pursuant to “Averaging Date Disruption” above, in which
case the Calculation Agent may, in its good faith and commercially reasonable discretion, adjust any relevant terms of the Transaction as the Calculation Agent determines appropriate to account for the economic effect on the Transaction of such
postponement, based on stock price, stock price volatility, interest rates, strike price, stock loan rate, liquidity and Averaging Dates.
	 Extraordinary Events:
	  	


  
 4 









			
		
	 Consequences of Merger Events:
	  	
		
	 (a)  Share-for-Share:
	  	Modified Calculation Agent Adjustment
		
	 (b)  Share-for-Other:
	  	Cancellation and Payment
		
	 (c)  Share-for-Combined:
	  	Component Adjustment
		
	 Tender Offer:
	  	Applicable
		
	 Consequences of Tender Offers:
	  	
		
	 (a)  Share-for-Share:
	  	Modified Calculation Agent Adjustment
		
	 (b)  Share-for-Other:
	  	Modified Calculation Agent Adjustment
		
	 (c)  Share-for-Combined:
	  	Modified Calculation Agent Adjustment
		
	 Composition of Combined

Consideration:
	  	Not Applicable
		
	 Consequences of Announcement

Events:
	  	  
 Modified Calculation Agent Adjustment as set forth in Section
12.3(d) of the Equity Definitions; provided that references to “Tender Offer” shall be replaced by references to “Announcement Event” and references to “Tender Offer Date” shall be replaced by references to
“Announcement Date.” 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:
	  	The occurrence of an Announcement Date in respect of a potential Acquisition Transaction (as defined in Section 9 below).
		
	 Announcement Date:
	  	The date of the first public announcement in relation to an Acquisition Transaction, or any publicly announced change or amendment to the announcement giving rise to an
Announcement Date.
		
	 Provisions applicable to Merger
 Events and Tender Offers:
	  	  
 The consequences set forth opposite “Consequences of
Merger Events” and “Consequences of Tender Offers” above shall apply regardless of whether a particular Merger Event or Tender Offer relates to an Announcement Date for which an adjustment has been made pursuant to Consequences of
Announcement Events, without duplication of any such adjustment.

		
	 New Shares:
	  	In the definition of New Shares in Section 12.1(i) of the Equity Definitions, the text in clause (i) thereof shall be deleted in its entirety (including the word “and”
following such clause (i)) and replaced with “publicly quoted, traded or listed on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors)”.
		
	 Nationalization, Insolvency or

Delisting:
	  	  
 Cancellation and Payment (Calculation Agent Determination);
provided that in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it shall also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or
re-quoted on any of the New York Stock Exchange, The NASDAQ Global Market or The NASDAQ Global Select Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any such



  
 5 









					
		  		  	exchange or quotation system, such exchange or quotation system shall thereafter be deemed to be the Exchange.
			
		  	Additional Disruption Events:	  	
			
		  	    Change in Law:	  	Applicable
			
		  	    Failure to Deliver:	  	Applicable
			
		  	    Insolvency Filing:	  	Applicable
			
		  	    Hedging Disruption:	  	Applicable
			
		  	    Increased Cost of Hedging:	  	Applicable
			
		  	    Loss of Stock Borrow:	  	Applicable
			
		  	 Maximum Stock Loan Rate:
	  	As provided in Annex B to this Confirmation.
			
		  	    Increased Cost of Stock Borrow:	  	Applicable
			
		  	 Initial Stock Loan Rate:
	  	As provided in Annex B to this Confirmation.
			
		  	Hedging Party:	  	For all applicable Potential Adjustment Events and Extraordinary Events, BofA
			
		  	Determining Party:	  	For all Extraordinary Events, BofA
			
		  	Non-Reliance:	  	Applicable
			
		  	Agreements and Acknowledgments	  	
		  	Regarding Hedging Activities:	  	Applicable
			
		  	Additional Acknowledgments:	  	Applicable
			
	3.	  	Account Details:	  	
			
		  	(a)    Account for delivery of Shares	  	
		  	to Counterparty:	  	As provided separately in writing.
			
		  	(b)    Account for payments to	  	
		  	Counterparty:	  	As provided separately in writing.
			
		  	(c)    Account for payments to BofA:	  	As provided separately in writing.
			
	4.	  	Offices:	  	
		
		  	(a)    The Office of Counterparty for the Transaction is: Counterparty is not a Multibranch Party
		
		  	(b)    The Office of BofA for the Transaction is:
			
		  	 Bank of America, N.A.
	  	
		  	 c/o Merrill Lynch, Pierce, Fenner & Smith Incorporated

		  	 Bank of America Tower at One Bryant Park

		  	 New York, NY 10036
	  	
		
	5.	  	Notices: For purposes of this Confirmation:
		
		  	(a)    Address for notices or communications to Counterparty:
		
		  	 Varian Medical Systems, Inc.

		  	 3100 Hansen Way
	  	
		  	 Palo Alto, CA 94304-1038
	  	
		  	 Attn: J.A. (Andy) Thorson / Franco Palomba

		  	 Telephone: 650-424-5741 / 650-424-5955

		  	 Facsimile: 650-842-5080
	  	
			
		  	 With a copy to:
	  	


  
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		  	 Varian Medical Systems, Inc.

		  	 3100 Hansen Way

		  	 Palo Alto, CA 94304-1038

		  	 Attn: General Counsel

		  	 Telephone: 650-424-6226

		  	 Facsimile: 650-424-5998

	
	 (b)    Address for notices or communications to BofA:

		
		  	 Bank of America, N.A.

c/o Merrill Lynch, Pierce, Fenner & Smith Incorporated

		  	 Bank of America Tower at One Bryant Park

		  	 New York, NY 10036

		  	 Attn: John Servidio

		  	 Telephone: 646-855-7127

		  	 Facsimile: 704-208-2869


  

	6.	Additional Provisions Relating to Transactions in the Shares. 

 (a) Counterparty acknowledges and agrees that the Initial Shares delivered on the Initial Share Delivery Date may be sold short to Counterparty. Counterparty further acknowledges and agrees that BofA may,
during (i) the period from the date hereof to the Valuation Date or, if later, the Scheduled Earliest Acceleration Date without regard to any adjustment thereof pursuant to “Special Provisions regarding Transaction Announcements”
below, and (ii) the period from and including the first Settlement Valuation Date to and including the last Settlement Valuation Date, if any (together, the “Relevant Period”), purchase Shares in connection with the
Transaction, which Shares may be used to cover all or a portion of such short sale or may be delivered to Counterparty. Such purchases will be conducted independently of Counterparty. The timing of such purchases by BofA, the number of Shares
purchased by BofA on any day, the price paid per Share pursuant to such purchases and the manner in which such purchases are made, including without limitation whether such purchases are made on any securities exchange or privately, shall be within
the absolute discretion of BofA. It is the intent of the parties that the Transaction comply with the requirements of Rule 10b5-1(c)(1)(i)(B) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the parties
agree that this Confirmation shall be interpreted to comply with the requirements of Rule 10b5-1(c), and Counterparty shall not take any action that results in the Transaction not so complying with such requirements. Without limiting the generality
of the preceding sentence, Counterparty acknowledges and agrees that (A) Counterparty does not have, and shall not attempt to exercise, any influence over how, when or whether BofA effects any purchases of Shares in connection with the
Transaction, (B) during the period beginning on (but excluding) the date of this Confirmation and ending on (and including) the last day of the Relevant Period, neither Counterparty nor its officers or employees shall, directly or indirectly,
communicate any information regarding Counterparty or the Shares to any employee of BofA or its Affiliates responsible for trading the Shares in connection with the transactions contemplated hereby, (C) Counterparty is entering into the
Transaction in good faith and not as part of a plan or scheme to evade compliance with federal securities laws including, without limitation, Rule 10b-5 promulgated under the Exchange Act and (D) Counterparty will not alter or deviate from this
Confirmation or enter into or alter a corresponding hedging transaction with respect to the Shares. Counterparty also acknowledges and agrees that any amendment, modification, waiver or termination of this Confirmation must be effected in accordance
with the requirements for the amendment or termination of a “plan” as defined in Rule 10b5-1(c) under the Exchange Act. Without limiting the generality of the foregoing, any such amendment, modification, waiver or termination shall be made
in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b-5 under the Exchange Act, and no such amendment, modification or waiver shall be made at any time at which Counterparty or any officer or director of
Counterparty is aware of any material nonpublic information regarding Counterparty or the Shares. 
 (b) Counterparty agrees
that neither Counterparty nor any of its Affiliates or agents shall take any action that would cause Regulation M to be applicable to any purchases of Shares, or any security for which the Shares are a reference security (as defined in Regulation
M), by Counterparty or any of its affiliated purchasers (as defined in Regulation M) during the Relevant Period. 

  
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 (c) Counterparty represents and warrants to BofA that the total number of Shares purchased
in Rule 10b-18 purchases of blocks pursuant to the once-a-week block exception contained in Rule 10b-18(b)(4) by or for Counterparty or any of its affiliated purchasers during each of the four calendar weeks preceding the first day of the Relevant
Period and during the calendar week in which the first day of the Relevant Period occurs (“Rule 10b-18 purchase”, “blocks” and “affiliated purchaser” each being used as defined in Rule 10b-18) is zero. 

(d) During the Relevant Period, Counterparty shall (i) to the extent that it is within its reasonable control, not permit to be made
any public announcement (as defined in Rule 165(f) under the Securities Act of 1933, as amended (the “Securities Act”) of any merger, acquisition, or similar transaction involving a recapitalization relating to Counterparty (other
than any such transaction in which the consideration consists solely of cash and there is no valuation period), unless such public announcement is made prior to the opening or after the close of the regular trading session on the Exchange for the
Shares, (ii) promptly notify BofA following any such announcement that such announcement has been made and (iii) promptly deliver to BofA following the making of any such announcement a certificate indicating (A) Counterparty’s
average daily Rule 10b-18 purchases (as defined in Rule 10b-18) during the three full calendar months preceding the date of the announcement of such transaction and (B) Counterparty’s block purchases (as defined in Rule 10b-18) effected
pursuant to paragraph (b)(4) of Rule 10b-18 during the three full calendar months preceding the date of the announcement of such transaction. In addition, Counterparty shall promptly notify BofA of the earlier to occur of the completion of such
transaction and the completion of the vote by target shareholders. Counterparty acknowledges that any such public announcement may result in a Regulatory Disruption and may cause the Relevant Period to be suspended. Accordingly, Counterparty
acknowledges that its actions in relation to any such announcement or transaction must comply with the standards set forth in Section 6(a). 
 (e) Without the prior written consent of BofA, Counterparty shall not, and shall cause its Affiliates and affiliated purchasers (each as defined in Rule 10b-18) not to, directly or indirectly (including,
without limitation, by means of a cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent
interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable for Shares during the Relevant Period. 

 

	7.	Representations, Warranties and Agreements. 

 (a) In addition to the representations, warranties and agreements in the Agreement and those contained elsewhere herein, Counterparty represents and warrants to and for the benefit of, and agrees with,
BofA as follows: 
 (i) As of the Trade Date, (A) none of Counterparty and its officers and directors is
aware of any material nonpublic information regarding Counterparty or the Shares and (B) all reports and other documents filed by Counterparty with the Securities and Exchange Commission pursuant to the Exchange Act when considered as a whole
(with the more recent such reports and documents deemed to amend inconsistent statements contained in any earlier such reports and documents), do not contain any untrue statement of a material fact or any omission of a material fact required to be
stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading. 
 (ii) Without limiting the generality of Section 13.1 of the Equity Definitions, Counterparty acknowledges that BofA is not making any representations or warranties or taking any position or
expressing any view with respect to the treatment of the Transaction under any accounting standards including ASC Topic 260, Earnings Per Share, ASC Topic 815, Derivatives and Hedging, or ASC Topic 480, Distinguishing Liabilities
from Equity and ASC 815-40, Derivatives and Hedging – Contracts in Entity’s Own Equity (or any successor issue statements) or under FASB’s Liabilities & Equity Project. 

(iii) Without limiting the generality of Section 3(a)(iii) of the Agreement, the Transaction will not violate Rule
13e-1 or Rule 13e-4 under the Exchange Act. 
 (iv) Prior to the Trade Date, Counterparty shall deliver to BofA a
resolution of Counterparty’s board of directors authorizing the Transaction and such other certificate or certificates as BofA shall reasonably request. Counterparty has publicly disclosed on each of November 17, 2009 and August 9,
2010 its intention to institute a program for the acquisition of Shares. 

  
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 (v) Counterparty is not entering into this Confirmation to create actual or
apparent trading activity in the Shares (or any security convertible into or exchangeable for Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for Shares) or otherwise
in violation of the Exchange Act, and will not engage in any other securities or derivative transaction to such ends. 
 (vi) Counterparty is not, and after giving effect to the transactions contemplated hereby will not be, required to register as an “investment company” as such term is defined in the Investment
Company Act of 1940, as amended. 
 (vii) On the Trade Date, the Prepayment Date, the Initial Share Delivery Date
and the Settlement Date, Counterparty is not, or will not be, “insolvent” (as such term is defined under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and
Counterparty would be able to purchase the Shares hereunder in compliance with the corporate laws of the jurisdiction of its incorporation. 
 (viii) No state or local (including non-U.S. jurisdictions) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement
(including without limitation a requirement to obtain prior approval from any person or entity) as a result of BofA or its affiliates owning or holding (however defined) Shares. 

(ix) Counterparty shall not declare or pay any Dividend (as defined above) to holders of record as of any date occurring
prior to the Settlement Date or, if the provisions of Annex A apply, the Cash Settlement Payment Date. 
 (x)
Counterparty understands no obligations of BofA to it hereunder will be entitled to the benefit of deposit insurance and that such obligations will not be guaranteed by any affiliate of BofA or any governmental agency. 

(b) Each of BofA and Counterparty agrees and represents that it is an “eligible contract participant” as defined in
Section 1a(12) of the U.S. Commodity Exchange Act, as amended. 
 (c) Each party acknowledges that the offer and sale of
the Transaction to it is intended to be exempt from registration under the Securities Act, by virtue of Section 4(2) thereof. Accordingly, each party represents and warrants to the other that (i) it has the financial ability to bear the
economic risk of its investment in the Transaction and is able to bear a total loss of its investment, (ii) it is an “accredited investor” as that term is defined in Regulation D as promulgated under the Securities Act, (iii) it
is entering into the Transaction for its own account and without a view to the distribution or resale thereof, and (iv) the assignment, transfer or other disposition of the Transaction has not been and will not be registered under the
Securities Act and is restricted under this Confirmation, the Securities Act and state securities laws. 
 (d) Counterparty
agrees and acknowledges that BofA is a “financial institution,” “swap participant” and “financial participant” within the meaning of Sections 101(22), 101(53C) and 101(22A) of the Bankruptcy Code. The parties hereto
further agree and acknowledge that it is the intent of the parties that (A) this Confirmation is (i) a “securities contract,” as such term is defined in Section 741(7) of the Bankruptcy Code, with respect to which each
payment and delivery hereunder or in connection herewith is a “termination value,” “payment amount” or “other transfer obligation” within the meaning of Section 362 of the Bankruptcy Code and a “settlement
payment,” within the meaning of Section 546 of the Bankruptcy Code and (ii) a “swap agreement,” as such term is defined in Section 101(53B) of the Bankruptcy Code, with respect to which each payment and delivery
hereunder or in connection herewith is a “termination value,” “payment amount” or “other transfer obligation” within the meaning of Section 362 of the Bankruptcy Code and a “transfer,” as such term is
defined in Section 101(54) of the Bankruptcy Code and a “payment or other transfer of property” within the meaning of Sections 362 and 546 of the Bankruptcy Code, and (B) BofA is entitled to the protections afforded by, among
other sections, Sections 362(b)(6), 362(b)(17), 362(o), 546(e), 546(g), 548(d)(2), 555, 560 and 561 of the Bankruptcy Code. 

(e) BofA represents, warrants and covenants to Counterparty that it has implemented reasonable policies and procedures, taking into
consideration the nature of its business, to ensure that individuals making investment 

  
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decisions relating to the Transaction are not aware of material nonpublic information regarding Counterparty or the Shares of which other individuals at BofA may be aware. 

(f) BofA agrees with Counterparty that BofA shall not take any action in connection with the Transaction with the intention of
manipulating any trading prices of the Shares in violation of the Exchange Act and the rules and regulations thereunder. 
  

	8.	Agreements and Acknowledgements Regarding Hedging. 

 Counterparty acknowledges and agrees that: 
 (a) During the Relevant Period, BofA
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) BofA and its Affiliates also may be active in the market for Shares other than in connection with hedging activities in relation to
the Transaction; 
 (c) BofA shall make its own determination as to whether, when or in what manner any hedging or market
activities in Counterparty’s securities 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 Settlement Price and/or the VWAP Price; and 

(d) Any market activities of BofA and its Affiliates with respect to Shares may affect the market price and volatility of Shares, as well
as the Settlement Price and/or the VWAP Price, each in a manner that may be adverse to Counterparty. 
  

	9.	Special Provisions regarding Transaction Announcements. 

 (a) If a Transaction Announcement occurs on or prior to the Settlement Date or the Cash Settlement Payment Date, as the case may be, then the Number of Shares to be Delivered shall be determined as if the
words “minus (ii) the Discount” had been deleted from the definition thereof. If a Transaction Announcement occurs after the Trade Date but prior to the Scheduled Earliest Acceleration Date, the Scheduled Earliest Acceleration Date
shall be adjusted to be the date of such Transaction Announcement. 
 (b) “Transaction Announcement” means
(i) the announcement of an Acquisition Transaction, (ii) an announcement that Counterparty or any of its subsidiaries has entered into an agreement, a letter of intent or an understanding to enter into an Acquisition Transaction,
(iii) the announcement of an intention to solicit or enter into, or to explore strategic alternatives or other similar undertaking that may include, an Acquisition Transaction, or (iv) any other announcement that in the reasonable judgment
of the Calculation Agent may result in an Acquisition Transaction. For the avoidance of doubt, announcements as used in this definition of Transaction Announcement refer to any public announcement whether made by the Issuer or a third party.

 “Acquisition Transaction” means (i) any Merger Event (and for purposes of this definition the
definition of Merger Event shall be read with the references therein to “100%” being replaced by “15%” and to “50%” by “75%” and as if the clause beginning immediately following the definition of Reverse
Merger therein to the end of such definition were deleted) or Tender Offer, or any other transaction involving the merger of Counterparty with or into any third party, (ii) the sale or transfer of all or substantially all of the assets of
Counterparty, (iii) a recapitalization, reclassification, binding share exchange or other similar transaction, (iv) any acquisition, lease, exchange, transfer, disposition (including by way of spin-off or distribution) of assets (including
any capital stock or other ownership interests in subsidiaries) or other similar event by Counterparty or any of its subsidiaries where the aggregate consideration transferable or receivable by or to Counterparty or its subsidiaries exceeds 15% of
the market capitalization of Counterparty and (v) any transaction in which Counterparty or its board of directors has a legal obligation to make a recommendation to its shareholders in respect of such transaction (whether pursuant to Rule 14e-2
under the Exchange Act or otherwise). 
  

	10.	Other Provisions. 


  
 10 









 (a) Alternative Calculations and Payment on Early Termination and on Certain
Extraordinary Events. If either party would owe the other party any amount pursuant to Sections 12.2, 12.3, 12.6, 12.7 or 12.9 of the Equity Definitions or pursuant to Section 6(d)(ii) of the Agreement (a “Payment
Obligation”), Counterparty shall have the right, in its sole discretion, to satisfy or to require BofA to satisfy, as the case may be, any such Payment Obligation, in whole or in part, by the Share Termination Alternative (as defined below)
by giving irrevocable telephonic notice to BofA, confirmed in writing within one Scheduled Trading Day, no later than 9:30 A.M. New York City time on the Merger Date, Tender Offer Date, Announcement Date, Early Termination Date or date of
cancellation or termination in respect of an Extraordinary Event, as applicable (“Notice of Share Termination”); provided that Counterparty shall not have the right to so elect in the event of (i) an Insolvency, a
Nationalization, a Merger Event or a Tender Offer, in each case, in which the consideration or proceeds to be paid to holders of Shares consists solely of cash or (ii) an Event of Default in which Counterparty is the Defaulting Party or a
Termination Event in which Counterparty is the Affected Party, which Event of Default or Termination Event resulted from an event or events within Counterparty’s control. Upon such Notice of Share Termination, the following provisions shall
apply on the Scheduled Trading Day immediately following the Merger Date, Tender Offer Date, Announcement Date, Early Termination Date or date of cancellation or termination in respect of an Extraordinary Event, as applicable, with respect to the
Payment Obligation or such portion of the Payment Obligation for which the Share Termination Alternative has been elected (the “Applicable Portion”): 
  

			
	Share Termination Alternative:	  	Applicable and means, if delivery pursuant to the Share Termination Alternative is owed by BofA, that BofA shall deliver to Counterparty the Share Termination Delivery Property
on the date on which the Payment Obligation would otherwise be due pursuant to Section 12.7 or 12.9 of the Equity Definitions or Section 6(d)(ii) of the Agreement, as applicable, or such later date as the Calculation Agent may reasonably determine
(the “Share Termination Payment Date”), in satisfaction of the Payment Obligation or the Applicable Portion, as the case may be. If delivery pursuant to the Share Termination Alternative is owed by Counterparty, paragraphs 2 through
5 of Annex A shall apply as if such delivery were a settlement of the Transaction to which Net Share Settlement (as defined in Annex A) applied, the Cash Settlement Payment Date were the Early Termination Date, the Forward Cash Settlement Amount
were zero (0) minus the Payment Obligation (or the Applicable Portion, as the case may be) owed by Counterparty, and “Shares” as used in Annex A were replaced by “Share Termination Delivery Units.”
		
	Share Termination Delivery	  	
	Property:	  	A number of Share Termination Delivery Units, as calculated by the Calculation Agent, equal to the Payment Obligation (or the Applicable Portion, as the case may be) divided by
the Share Termination Unit Price. The Calculation Agent shall adjust the Share Termination Delivery Property by replacing any fractional portion of a security therein with an amount of cash equal to the value of such fractional security based on the
values used to calculate the Share Termination Unit Price.
		
	Share Termination Unit Price:	  	The value of property contained in one Share Termination Delivery Unit on the date such Share Termination Delivery Units are to be delivered as Share Termination Delivery
Property, as determined by the Calculation Agent in its good faith discretion by commercially reasonable means and notified by the Calculation Agent to the parties at the time of notification of the Payment Obligation.
		
	Share Termination Delivery Unit:	  	In the case of a Termination Event, Event of Default, Delisting or Additional Disruption Event, one Share or, in the case of an Insolvency, Nationalization, Merger Event or
Tender Offer, one Share or a unit consisting of the number or amount of each type of property received by a holder of one Share (without consideration of any requirement to pay cash or other consideration in lieu of fractional amounts of any
securities) in such Insolvency, Nationalization, Merger Event or Tender Offer. If such Insolvency, Nationalization, Merger Event or Tender Offer involves a choice of consideration to be received by holders, such holder shall be deemed to have
elected to receive the maximum possible amount of cash.


  
 11 









  

			
	Failure to Deliver:	  	Applicable
		
	Other applicable provisions:	  	If Share Termination Alternative is applicable, the provisions of Sections 9.8, 9.9, 9.10, 9.11 (except that the Representation and Agreement contained in Section 9.11 of the
Equity Definitions shall be modified by excluding any representations therein relating to restrictions, obligations, limitations or requirements under applicable securities laws arising as a result of the fact that Counterparty is the issuer of the
Shares or any portion of the Share Termination Delivery Units) and 9.12 of the Equity Definitions will be applicable as if “Physical Settlement” applied to the Transaction, except that all references to “Shares” shall be read as
references to “Share Termination Delivery Units”.

 (b) Equity Rights. BofA acknowledges and
agrees that this Confirmation is not intended to convey to it rights with respect to the Transaction that are senior to the claims of common stockholders in the event of Counterparty’s bankruptcy. For the avoidance of doubt, the parties agree
that the preceding sentence shall not apply at any time other than during Counterparty’s bankruptcy to any claim arising as a result of a breach by Counterparty of any of its obligations under this Confirmation or the Agreement. For the
avoidance of doubt, the parties acknowledge that this Confirmation is not secured by any collateral that would otherwise secure the obligations of Counterparty herein under or pursuant to any other agreement. 

(c) Staggered Settlement. If BofA would owe Counterparty any Shares pursuant to the “Settlement Terms” above, BofA may,
by notice to Counterparty on or prior to the Settlement Date (a “Nominal Settlement Date”), elect to deliver the Shares deliverable on such Nominal Settlement Date on two or more dates (each, a “Staggered Settlement
Date”) or at two or more times on the Nominal Settlement Date as follows: (i) in such notice, BofA will specify to Counterparty the related Staggered Settlement Dates (each of which will be on or prior to such Nominal Settlement Date)
or delivery times and how it will allocate the Shares it is required to deliver under “Settlement Terms” above among the Staggered Settlement Dates or delivery times; and (ii) the aggregate number of Shares that BofA will deliver to
Counterparty hereunder on all such Staggered Settlement Dates and delivery times will equal the number of Shares that BofA would otherwise be required to deliver on such Nominal Settlement Date. 

(d) Adjustments. For the avoidance of doubt, whenever the Calculation Agent is called upon to make an adjustment pursuant to the
terms of this Confirmation or the Definitions to take into account the effect of an event, the Calculation Agent shall make such adjustment by reference to the effect of such event on the Hedging Party, assuming that the Hedging Party maintains a
commercially reasonable hedge position. 
 (e) Transfer and Assignment. BofA may transfer or assign its rights and
obligations hereunder and under the Agreement, in whole or in part, to any of its Affiliates without the consent of Counterparty. 
 (f) Additional Termination Events. 
 (i) It shall constitute
an Additional Termination Event with respect to which the Transaction is the sole Affected Transaction and Counterparty is the sole Affected Party and BofA shall be the party entitled to designate an Early Termination Date pursuant to
Section 6(b) of the Agreement if, at any time during the Relevant Period, the price per Share on the Exchange, as determined by the Calculation Agent, is at or below the Threshold Price (as provided in Annex B to this Confirmation). 

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

(g) Amendments to Equity Definitions. The following amendments shall be made to the Equity Definitions: 

  
 12 









 (i) Section 11.2(a) of the Equity Definitions is hereby amended by
deleting the words “a diluting or concentrative effect on the theoretical value of the relevant Shares” and replacing them with the words “an economic effect on the relevant Transaction”; 

(ii) The first sentence of Section 11.2(c) of the Equity Definitions, prior to clause (A) thereof, is hereby
amended to read as follows: ‘(c) If “Calculation Agent Adjustment” is specified as the Method of Adjustment in the related Confirmation of a Share Option Transaction or Share Forward Transaction, then following the announcement or
occurrence of any Potential Adjustment Event, the Calculation Agent will determine whether such Potential Adjustment Event has an economic effect on the Transaction and, if so, will (i) make appropriate adjustment(s), if any, to any one or more
of:’ and the portion of such sentence immediately preceding clause (ii) thereof is hereby amended by deleting the words “diluting or concentrative” and the words “(provided that no adjustments will be made to
account solely for changes in volatility, expected dividends, stock loan rate or liquidity relative to the relevant Shares)” and replacing such latter phrase with the words “(and, for the avoidance of doubt, adjustments may be made to
account solely for changes in volatility, stock loan rate or liquidity relative to the relevant Shares)”; 

(iii) Section 11.2(e)(vii) of the Equity Definitions is hereby amended by deleting the words “diluting or
concentrative effect on the theoretical value of the relevant Shares” and replacing them with the words “economic effect on the relevant Transaction”; 

(iv) Section 12.6(a)(ii) of the Equity Definitions is hereby amended by (1) deleting from the fourth line
thereof the word “or” after the word “official” and inserting a comma therefor, and (2) deleting the semi-colon at the end of subsection (B) thereof and inserting the following words therefor “or (C) at
BofA’s option, the occurrence of any of the events specified in Section 5(a)(vii) (1) through (9) of the ISDA Master Agreement with respect to that issuer”; 

(v) Section 12.9(b)(iv) of the Equity Definitions is hereby amended by (A) deleting (1) subsection
(A) in its entirety, (2) the phrase “or (B)” following subsection (A) and (3) the phrase “in each case” in subsection (B); and (B) deleting the phrase “neither the Non-Hedging Party nor the Lending
Party lends Shares in the amount of the Hedging Shares or” in the penultimate sentence; and 
 (vi)
Section 12.9(b)(v) of the Equity Definitions is hereby amended by (A) adding the word “or” immediately before subsection “(B)” and deleting the comma at the end of subsection (A); and (B)(1) deleting subsection
(C) in its entirety, (2) deleting the word “or” immediately preceding subsection (C) and (3) replacing in the penultimate sentence the words “either party” with “the Hedging Party” and
(4) deleting clause (X) in the final sentence. 
 (h) No Netting and Set-off. Each party waives any and all
rights it may have to set off obligations arising under the Agreement and the Transaction against other obligations between the parties, whether arising under any other agreement, applicable law or otherwise. 

(i) 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. 
 (j) Designation by BofA. Notwithstanding
any other provision in this Confirmation to the contrary requiring or allowing BofA to purchase, sell, receive or deliver any Shares or other securities to or from Counterparty, BofA (the “Designator”) may designate any of its
Affiliates (the “Designee”) to deliver or take delivery, as the case may be, and otherwise perform its obligations to deliver, if any, or take delivery of, as the case may be, any such Shares or other securities in respect of the
Transaction, and the Designee may assume such obligations, if any. Such designation shall not relieve the Designator of any of its obligations, if any, hereunder. Notwithstanding the previous sentence, if the Designee shall have performed the
obligations, if any, of the Designator hereunder, then the Designator shall be discharged of its obligations, if any, to Counterparty to the extent of such performance. 
 (k) Termination Currency. The Termination Currency shall be USD. 

  
 13 









 (l) Waiver of Trial by Jury. EACH OF COUNTERPARTY AND BOFA HEREBY IRREVOCABLY
WAIVES (ON ITS OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS STOCKHOLDERS) ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING
TO THE TRANSACTION OR THE ACTIONS OF BOFA OR ITS AFFILIATES IN THE NEGOTIATION, PERFORMANCE OR ENFORCEMENT HEREOF. 
 (m)
Governing Law; Jurisdiction. THIS CONFIRMATION AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS CONFIRMATION SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE
EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES COURT FOR THE SOUTHERN DISTRICT OF NEW YORK IN CONNECTION WITH ALL MATTERS RELATING HERETO AND WAIVE ANY OBJECTION TO THE LAYING OF VENUE IN, AND ANY CLAIM OF
INCONVENIENT FORUM WITH RESPECT TO, THESE COURTS. 
 (n) Counterparts. This Confirmation may be executed in
any number of counterparts, all of which shall constitute one and the same instrument, and any party hereto may execute this Confirmation by signing and delivering one or more counterparts. 

  
 14 









 Please confirm your agreement to be bound by the terms stated herein by executing the copy
of this Confirmation enclosed for that purpose and returning it to us by mail or facsimile transmission to the address for Notices indicated above. 
  

			
	BANK OF AMERICA, N.A.
		
	By:	 	 /s/ Jake Mendelsohn

	Name:	 	Jake Mendelsohn
	Title:	 	Director


  

			
	Confirmed as of the date first above written:
	
	VARIAN MEDICAL SYSTEMS, INC.
		
	By:	 	 /s/ Elisha W. Finney

	Name:	 	Elisha Finney
	Title:	 	Senior Vice President and CFO








 ANNEX A 
 COUNTERPARTY SETTLEMENT PROVISIONS 
 1. The following Counterparty Settlement
Provisions shall apply to the extent indicated under the Confirmation: 
  

			
	    Settlement Currency:	  	USD
		
	    Settlement Method     Election:	  	Applicable; provided that (i) Section 7.1 of the Equity Definitions is hereby amended by deleting the word “Physical” in the sixth line thereof and
replacing it with the words “Net Share” and (ii) the Electing Party may make a settlement method election only if the Electing Party represents and warrants to BofA in writing on the date it notifies BofA of its election that, as of such
date, (A) none of Counterparty and its officers and directors is aware of any material nonpublic information regarding Counterparty or the Shares and (B) Counterparty is electing the settlement method in good faith and not as part of a plan or
scheme to evade compliance with the federal securities laws.
		
	    Electing Party:	  	Counterparty
		
	    Settlement Method	  	
	    Election Date:	  	Any date on or prior to the date 10 Exchange Business Days prior to the Valuation Date; provided that if BofA accelerates the Final Averaging Date pursuant to the proviso
to the definition of Final Averaging Date, the Settlement Method Election Date shall be any date on or prior to the second Exchange Business Day immediately following the Valuation Date.
		
	    Default Settlement     Method:	  	Cash Settlement
		
	    Special Settlement:	  	Either (i) a settlement to which this Annex A applies that follows the occurrence of a Transaction Announcement to which Section 9 of this Confirmation applies or (ii) any
settlement to which paragraphs 2 through 5 of this Annex A apply that follows a termination or cancellation of the Transaction pursuant to Section 6 of the Agreement or Article 12 of the Equity Definitions to which Section 10(a) of this Confirmation
applies.
		
	    Forward Cash Settlement	  	
	    Amount:	  	The Number of Shares to be Delivered multiplied by the Settlement Valuation Price.
		
	    Settlement Valuation     Price:	  	The arithmetic average of the VWAP Prices for all Settlement Valuation Dates, subject to Averaging Date Disruption, determined as if each Settlement Valuation Date were an
Averaging Date (with Averaging Date Disruption applying as if the last Settlement Valuation Date were the Final Averaging Date and the Settlement Valuation Price were the Settlement Price).
		
	    Settlement Valuation     Dates:	  	A number of Scheduled Trading Days selected by BofA in its good faith and commercially reasonable discretion, beginning on the Scheduled Trading Day immediately following the
later of the Settlement Method Election Date and the Final Averaging Date.
		
	    Cash Settlement:	  	If Cash Settlement is applicable, then Counterparty shall pay to BofA the absolute value of the Forward Cash Settlement Amount on the Cash Settlement Payment
Date.
		
	    Cash Settlement	  	
	    Payment Date:	  	The date one Settlement Cycle following the last Settlement Valuation Date.


  
 A-1









  

			
	    Net Share Settlement	  	
	    Procedures:	  	If Net Share Settlement is applicable, Net Share Settlement shall be made in accordance with paragraphs 2 through 5 below.


2. Net Share Settlement shall be made by delivery on the Settlement Date of a number of Shares equal to the product of 102% of the
absolute value of the Number of Shares to be Delivered; provided that in the case of a Special Settlement, Net Share Settlement shall be made (i) by delivery on the Cash Settlement Payment Date (such date, the “Net Share
Settlement Date”) of a number of Shares (the “Restricted Payment Shares”) with a value equal to the absolute value of the Forward Cash Settlement Amount, with such Shares’ value based on the realizable market value
thereof to BofA (which value shall take into account an illiquidity discount resulting from the fact that the Restricted Payment Shares will not be registered for resale), as determined by the Calculation Agent (the “Restricted Share
Value”), and paragraph 3 of this Annex A shall apply to such Restricted Payment Shares, and (ii) by delivery of the Make-Whole Payment Shares as described in paragraph 4 below. 

3.(a) All Restricted Payment Shares and Make-Whole Payment Shares shall be delivered to BofA (or any affiliate of BofA designated by
BofA) pursuant to the exemption from the registration requirements of the Securities Act provided by Section 4(2) thereof. 

(b) As of or prior to the date of delivery, Merrill Lynch, Pierce, Fenner & Smith Incorporated, BofA and any potential purchaser
of any such Shares from BofA (or any affiliate of BofA designated by BofA) identified by BofA shall be afforded a commercially reasonable opportunity to conduct a due diligence investigation with respect to Counterparty customary in scope for
private placements of equity securities of similar size by similar companies (including, without limitation, the right to have made available to them for inspection all financial and other records, pertinent corporate documents and other information
reasonably requested by them), provided that any such potential purchaser may be required by Counterparty to enter into a customary nondisclosure agreement with Counterparty in respect of any such due diligence investigation. 

(c) As of the date of delivery, Counterparty shall enter into an agreement (a “Private Placement Agreement”) with BofA
(or any affiliate of BofA designated by BofA) in connection with the private placement of such Shares by Counterparty to BofA (or any such affiliate) and the private resale of such shares by BofA (or any such affiliate), substantially similar to
private placement purchase agreements customary for private placements of equity securities of similar size by similar companies, in form and substance commercially reasonably satisfactory to BofA, which Private Placement Agreement shall include,
without limitation, provisions substantially similar to those contained in such private placement purchase agreements relating to the indemnification of, and contribution in connection with the liability of, BofA and its affiliates, and shall
provide for the payment by Counterparty of the reasonable fees and actual documented out-of-pocket expenses in connection with such resale, including reasonable fees and expenses of counsel for BofA, and shall contain representations, warranties and
agreements of Counterparty reasonably necessary or advisable to establish and maintain the availability of an exemption from the registration requirements of the Securities Act for such resales. 

(d) Neither Counterparty nor BofA shall take or cause to be taken any action that would make unavailable either (i) the exemption
set forth in Section 4(2) of the Securities Act for the sale of any Restricted Payment Shares or Make-Whole Payment Shares by Counterparty to BofA or (ii) an exemption from the registration requirements of the Securities Act reasonably
acceptable to BofA for resales of Restricted Payment Shares and Make-Whole Payment Shares by the BofA (or an affiliate of BofA). 
 (e) Counterparty expressly agrees and acknowledges that the public disclosure of material information relating to Counterparty is within Counterparty’s control. 

4. If Restricted Payment Shares are delivered in accordance with paragraph 3 above, on the last Settlement Valuation Date, a balance (the
“Settlement Balance”) shall be established with an initial balance equal to the absolute value of the Forward Cash Settlement Amount. Following the delivery of Restricted Payment Shares or any Make-Whole Payment Shares, BofA shall
sell all such Restricted Payment Shares or Make-Whole Payment Shares in a commercially reasonable manner. At the end of each Exchange Business Day upon which sales have been made, the Settlement Balance shall be reduced by an amount equal to the
aggregate proceeds received by BofA or its affiliate upon the sale of such Restricted Payment Shares or Make-Whole Payment Shares, less a customary and commercially reasonable private 

  
 A-2









 
placement fee for private placements of common stock by similar issuers. If, on any Exchange Business Day, all Restricted Payment Shares and Make-Whole Payment Shares have been sold and the
Settlement Balance has not been reduced to zero, Counterparty shall, in its sole discretion, (i) deliver to BofA or as directed by BofA one Settlement Cycle following such Exchange Business Day an additional number of Shares (the
“Make-Whole Payment Shares” and, together with the Restricted Payment Shares, the “Payment Shares”) equal to (x) the Settlement Balance as of such Exchange Business Day divided by (y) the Restricted
Share Value of the Make-Whole Payment Shares as of such Exchange Business Day or (ii) promptly deliver to BofA cash in an amount equal to the then remaining Settlement Balance. This provision shall be applied successively until either the
Settlement Balance is reduced to zero or the aggregate number of Restricted Payment Shares and Make-Whole Payment Shares equals the Maximum Deliverable Number. If on any Exchange Business Day, Restricted Payment Shares and Make-Whole Payment Shares
remain unsold and the Settlement Balance has been reduced to zero, BofA shall promptly return such unsold Restricted Payment Shares or Make-Whole Payment Shares. 
 5. Notwithstanding the foregoing, in no event shall Counterparty be required to deliver more than the Maximum Deliverable Number of Shares hereunder. “Maximum Deliverable Number” means
the number of Shares set forth as such in Annex B to this Confirmation. Counterparty represents and warrants to BofA (which representation and warranty shall be deemed to be repeated on each day from the date hereof to the Settlement Date or, if
Counterparty has elected to deliver any Payment Shares hereunder in connection with a Special Settlement, to the date on which resale of such Payment Shares is completed (the “Final Resale Date”)) that the Maximum Deliverable Number
is equal to or less than the number of authorized but unissued Shares of Counterparty that are not reserved for future issuance in connection with transactions in such Shares (other than the transactions under this Confirmation) on the date of the
determination of the Maximum Deliverable Number (such Shares, the “Available Shares”). In the event Counterparty shall not have delivered the full number of Shares otherwise deliverable as a result of this paragraph 5 (the resulting
deficit, the “Deficit Shares”), Counterparty shall be continually obligated to deliver, from time to time until the full number of Deficit Shares have been delivered pursuant to this paragraph, Shares when, and to the extent that,
(i) Shares are repurchased, acquired or otherwise received by Counterparty or any of its subsidiaries after the date hereof (whether or not in exchange for cash, fair value or any other consideration), (ii) authorized and unissued Shares
reserved for issuance in respect of other transactions prior to such date which prior to the relevant date become no longer so reserved or (iii) Counterparty additionally authorizes any unissued Shares that are not reserved for other
transactions. Counterparty shall immediately notify BofA of the occurrence of any of the foregoing events (including the number of Shares subject to clause (i), (ii) or (iii) and the corresponding number of Shares to be delivered) and
promptly deliver such Shares thereafter. 

  
 A-3









 CONFIDENTIAL TREATMENT REQUESTED 

ANNEX B 
  

			
	Prepayment Amount:	  	USD 225,000,000
		
	Scheduled Final Averaging Date:	  	[*] (or if such date is not an Exchange Business Day, the next following Exchange Business Day).
		
	Scheduled Earliest Acceleration	  	
	Date:	  	[*] (or if such date is not an Exchange Business Day, the next following Exchange Business Day).
		
	Knock-out Level:	  	Not Applicable
		
	Maximum Number of Knock-out Days:	  	0
		
	Initial Shares:	  	3,888,249 Shares
		
	Discount:	  	[*]
		
	Maximum Stock Loan Rate:	  	[*]
		
	Initial Stock Loan Rate:	  	[*]
		
	Threshold Price:	  	[*]
		
	Maximum Deliverable Number:	  	10,000,000 Shares

  

	*	Confidential material redacted and filed separately with the Securities and Exchange Commission. 


  
 B-1