Exhibit 10.2

 

Morgan Stanley & Co. LLC

1585 Broadway, 5th Floor

New York, NY 10036

 

	
DATE:
    	
December 4, 2015
    
	
 
    	
 
    
	
TO:
    	
Pandora   Media, Inc.
    
	
 
    	
2101 Webster Street,   Suite 1650
    
	
 
    	
Oakland, California   94612
    
	
ATTENTION:
    	
General Counsel
    
	
TELEPHONE:
    	
(510) 593-2729
    
	
FACSIMILE:
    	
(510) 593-2729
    
	
 
    	
 
    
	
FROM:
    	
Morgan   Stanley & Co. LLC
    
	
TELEPHONE:
    	
(212) 761-4000
    
	
 
    	
 
    
	
SUBJECT:
    	
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 Morgan Stanley & Co. LLC (“Dealer”) and Pandora Media, 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.  This Confirmation shall replace any previous agreements and serve as the final documentation for the Transaction.

 

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 December 3, 2015 (the “Offering Memorandum”) relating to the 1.75% Convertible Senior Notes due 2020 (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 300,000,000 (as increased by an additional aggregate principal amount of USD 45,000,000 pursuant to the exercise by the Initial Purchaser (as defined herein) of its option to purchase additional Convertible Notes pursuant to the Purchase Agreement (as defined herein)) pursuant to an Indenture to be dated December 9, 2015 between Counterparty and Citibank, N.A., 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 that are also defined herein by reference to the Indenture and (ii) sections of the Indenture that are referred to herein, in each case, will conform to the descriptions thereof 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 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 to preserve the intent of the parties.  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, any such amendment or supplement (other than any amendment or supplement (x) pursuant to Section 10.01(j) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of the Convertible Notes in the Offering Memorandum and (y) pursuant to Section 14.07 of the Indenture, subject, in the case of clause (y), to the second proviso in the provisions opposite the caption “Consequences of Merger Events / Tender Offers” in Section 3 below) will be disregarded for purposes of this Confirmation unless the parties agree otherwise in writing.  For purposes of the Equity Definitions, the Transaction shall be deemed to be a Share Option Transaction.

 











 

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 the election of the laws of the State of New York as the governing law (without reference to choice of law doctrine)) 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.  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:
    	
 
    	
December 4, 2015
    
	
 
    	
 
    	
 
    
	
Effective Date:
    	
 
    	
The Premium Payment   Date
    
	
 
    	
 
    	
 
    
	
Option Style:
    	
 
    	
“Modified American”, as   described opposite the caption “Procedures for Exercise” below
    
	
 
    	
 
    	
 
    
	
Option Type:
    	
 
    	
Call
    
	
 
    	
 
    	
 
    
	
Buyer:
    	
 
    	
Counterparty
    
	
 
    	
 
    	
 
    
	
Seller:
    	
 
    	
Dealer
    
	
 
    	
 
    	
 
    
	
Shares:
    	
 
    	
The common stock of   Counterparty, par value USD 0.0001 per share (Exchange symbol “P”)
    
	
 
    	
 
    	
 
    
	
Number of Options:
    	
 
    	
45,000. 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.
    
	
 
    	
 
    	
 
    
	
Applicable Percentage:
    	
 
    	
40%
    
	
 
    	
 
    	
 
    
	
Option Entitlement:
    	
 
    	
A number equal to the   product of the Applicable Percentage and 60.9050.
    
	
 
    	
 
    	
 
    
	
Strike Price:
    	
 
    	
USD 16.4190
    
	
 
    	
 
    	
 
    
	
Cap Price:
    	
 
    	
USD 25.2600
    
	
 
    	
 
    	
 
    
	
Premium:
    	
 
    	
USD 2,251,800.00
    
	
 
    	
 
    	
 
    
	
Premium Payment Date:
    	
 
    	
December 9, 2015
    
	
 
    	
 
    	
 
    
	
Exchange:
    	
 
    	
The New York Stock   Exchange
    
	
 
    	
 
    	
 
    
	
Related Exchange(s):
    	
 
    	
All Exchanges
    
	
 
    	
 
    	
 
    
	
Excluded Provisions:
    	
 
    	
Section 14.04(h) and   Section 14.03 of the Indenture
    


 

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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”), which conversion shall be subject to   the provisions set forth in Section 9(h)(i)), 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:
    	
 
    	
July 1, 2020
    
	
 
    	
 
    	
 
    
	
Expiration Time:
    	
 
    	
The Valuation Time
    
	
 
    	
 
    	
 
    
	
Expiration Date:
    	
 
    	
December 1, 2020, subject to earlier exercise
    
	
 
    	
 
    	
 
    
	
Multiple Exercise:
    	
 
    	
Applicable, as described opposite the caption   “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 December 3, 2015 between Dealer and Counterparty   (the “Base Call Option Confirmation”),   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   aggregate 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 opposite the caption “Automatic Exercise” above, in   order to exercise any Options, Counterparty must notify Dealer in writing on   or prior to 5:00 p.m. (New York City time) on the second Scheduled Valid   Day immediately preceding the Expiration Date of the number of such Options; provided that, if the Relevant Settlement Method for such   Options is (x) Net Share Settlement and the Specified Cash Amount is not   USD 1,000, (y) Cash Settlement or (z) Combination Settlement,   Counterparty shall be required to provide Dealer with a
    


 

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separate written notice (the “Notice of   Final Settlement Method”) on or prior to 5:00 p.m. (New York   City time) on the Scheduled Valid Day immediately preceding 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 pay to Holders (as such term is defined in the   Indenture) of the related 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 Securities Exchange Act of 1934, as amended   (the “Exchange Act”), and the   rules and regulations thereunder, in respect of any election of a   settlement method with respect to the Convertible Notes. For the avoidance of   doubt, if the relevant Conversion Date for any Convertible Notes occurs prior   to the Free Convertibility Date, no Options shall be subject to exercise in   connection with such Early Conversion, and such conversion shall be subject   to the provisions set forth in Section 9(h)(i).
    
	
 
    	
 
    	
 
    
	
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 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 U.S. 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.
    


 

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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 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   Share 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 to   Counterparty, as the case may be, 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
    


 

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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; and
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
(ii)  Shares (the “Combination   Settlement Share Amount”) equal to the sum, for each Valid Day   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, minus (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 U.S. national or regional securities exchange on which the   Shares are then listed or, if the Shares are not then listed on a U.S.   national or regional securities exchange, on the principal other market on   which the Shares are then listed or admitted for
    


 

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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   U.S. 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.
    
	
 
    	
 
    	
 
    
	
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 P <equity> AQR (or any successor thereto) in respect of the   period from the scheduled opening time of 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 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 42nd Scheduled Valid Day immediately prior   to the Expiration Date; provided that   if the Notice of Final Settlement Method for such Option specifies that   Settlement in Shares or Low Cash Combination Settlement applies to the   related Convertible Note, the Settlement Averaging Period shall be the 80   consecutive Valid Days commencing on, and including, the 82nd Scheduled Valid   Day immediately prior to the Expiration Date.
    
	
 
    	
 
    	
 
    
	
Settlement Date:
    	
 
    	
For any Option, the third Business Day immediately   following the last 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 Section 9.11 of the Equity Definitions,   the parties acknowledge that any Shares delivered to Counterparty shall be,   upon delivery, subject to restrictions and limitations arising from   Counterparty’s
    


 

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status as issuer of the Shares under applicable   securities laws.
    


 

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 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 any “Last Reported Sale Price,” “Daily VWAP,” “Daily Conversion Value” or   “Daily Settlement Amount” (each such term 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 fourth sentence 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 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 each case, to the extent an analogous   adjustment is made under the Indenture;
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
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,   notwithstanding the foregoing, if the Calculation Agent in good faith   disagrees with any adjustment to the Convertible Notes that involves an   exercise of discretion by Counterparty or its board of directors (including,   without limitation, pursuant to Section 14.05 of the Indenture 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
    


 

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exercise, settlement or payment for the Transaction   in a commercially reasonable manner;
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
provided further 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, as determined by it, to the terms hereof in order   to account for such Potential Adjustment Event.
    
	
 
    	
 
    	
 
    
	
Dilution Adjustment Provisions:
    	
 
    	
Sections 14.04(a), (b), (c), (d), (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 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 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 and   the Option Entitlement; 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,   notwithstanding the foregoing, if the Calculation Agent in good faith   disagrees with any adjustment to the Convertible Notes that involves an   exercise of discretion by Counterparty or its board of directors (including,   without limitation, pursuant to Section 14.05 of the Indenture), then   the Calculation Agent will determine the adjustment to be made to any one or   more of the nature of the Shares, 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;
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
provided further that, for   greater certainty, the definition of “Modified Calculation Agent Adjustment”   in Sections
    


 

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12.2 and 12.3 of the Equity Definitions shall be   amended by (i) adding the following italicized language after the   stipulated parenthetical provision: “(including adjustments to account for   changes in volatility, expected dividends, stock loan rate or liquidity   relevant to the Shares or to the Transaction) from the   Announcement Date to the Merger Date (Section 12.2) or Tender Offer Date   (Section 12.3)”;
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
provided further that if, with   respect to a Merger Event, (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   will not be a corporation, then, in either case, Cancellation and Payment   (Calculation Agent Determination) may apply at Dealer’s sole election; and
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
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.
    
	
 
    	
 
    	
 
    
	
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, (v) 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”,   (w) the word “shall” in the second line shall be replaced with “may”,   (x) 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)”,   (y) the phrase “economic effect on the Transaction of such Tender Offer   (including adjustments to account for changes in volatility, expected   dividends, stock loan rate or liquidity relevant to the Shares or the   Transaction)” shall be deleted in its entirety and replaced with the words   “cumulative economic effect on the theoretical value of the Transaction taken   as a whole of such Announcement Event including to account for changes in   volatility, expected dividends, stock loan rate or liquidity relevant to the   Shares or the Transaction, if such economic effect is material”, and   (z) for the avoidance of doubt, the Calculation Agent may determine   whether the relevant Announcement Event has had a material effect on the   theoretical value of the Transaction (and, if so, adjust the Cap Price   accordingly) 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, it
    


 

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being understood that   any adjustment in respect of an Announcement Event shall take into account   any earlier adjustment relating to the same Announcement Event.  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 by Issuer   and/or its subsidiaries where the aggregate consideration exceeds 25% 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 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 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 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.
    
	
 
    	
 
    	
 
    
	
Composition of Combined Consideration:
    	
 
    	
Not Applicable; provided   that, notwithstanding Sections 12.5(b) and 12.1(f) of the Equity   Definitions, to the extent that the composition of the consideration for the   relevant Shares pursuant to a Tender Offer or Merger Event could be elected   by an actual holder of the Shares, the Calculation Agent will, in its sole   discretion, determine such composition.
    
	
 
    	
 
    	
 
    
	
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
    


 

11











 

	
 
    	
 
    	
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” with the phrase “Hedge   Positions” in clause (X) thereof, (iii) inserting the parenthetical   “(including, for the avoidance of doubt and without limitation, adoption or   promulgation of new regulations authorized or mandated by existing statute)”   at the end of clause (A) thereof, (iv) immediately following the   word “Transaction” in clause (X) thereof, adding the phrase “in the   manner contemplated by the Hedging Party on the Trade Date” and   (v) immediately before the phrase “it has become illegal” in clause   (X) thereof, adding the phrase “it will become illegal, there is a   substantial likelihood that it will, within the next 30 calendar days, but   before the Expiration Date of the Transaction become illegal, or”.
    
	
 
    	
 
    	
 
    
	
Failure to Deliver:
    	
 
    	
Applicable
    
	
 
    	
 
    	
 
    
	
Insolvency Filing:
    	
 
    	
Applicable; provided that   the definition of “Insolvency Filing” in Section 12.9 of the Equity   Definitions shall be amended by deleting the clause “provided that   proceedings instituted or petitions presented by creditors and not consented   to by the Issuer shall not be deemed an Insolvency Filing” at the end of such   definition and replacing it with the following: “; or it has instituted   against it a proceeding seeking a judgment of insolvency or bankruptcy or any   other relief under any bankruptcy or insolvency law or other similar law   affecting creditors’ rights, or a petition is presented for its winding-up or   liquidation by a creditor and such proceeding is not dismissed, discharged,   stayed or restrained, in each case, within fifteen (15) days of the   institution or presentation thereof.”
    
	
 
    	
 
    	
 
    
	
Hedging Disruption:
    	
 
    	
Applicable
    
	
 
    	
 
    	
 
    
	
Hedging Party:
    	
 
    	
For all applicable Additional Disruption Events,   Dealer or an affiliate of Dealer
    
	
 
    	
 
    	
 
    
	
Determining Party:
    	
 
    	
For all applicable Extraordinary Events, Dealer
    


 

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Hedge Positions:
    	
 
    	
The definition of “Hedge Positions” in   Section 13.2(b) of the Equity Definitions shall be amended by   inserting the words “or an affiliate thereof” after the words “a party” in   the third line thereof.
    


 

Acknowledgments:

 

	
Non-Reliance:
    	
 
    	
Applicable
    
	
 
    	
 
    	
 
    
	
Agreements and   Acknowledgments Regarding Hedging Activities:
    	
 
    	
Applicable
    
	
 
    	
 
    	
 
    
	
Additional   Acknowledgments:
    	
 
    	
Applicable
    


 

	
4.                                      Calculation Agent.
    	
 
    	
Dealer
    


 

5.                                      Account Details.

 

(a)                                 Account for payments to Counterparty:  To Be Advised.

 

Account for delivery of Shares to Counterparty:  To Be Advised.

 

(b)                                 Account for payments to Dealer:

 

	
Bank:
    	
Citibank, N.A.
    
	
SWIFT:
    	
[           ]
    
	
Bank Routing:
    	
[           ]
    
	
Acct Name:
    	
Morgan Stanley and Co.
    
	
Acct No.:
    	
[           ]
    


 

Account for delivery of Shares from Dealer:  To Be Advised.

 

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:  New York

 

Morgan Stanley & Co. LLC
 1585 Broadway, 5th Floor
 New York, NY 10036

 

7.                                      Notices.

 

(a)                                 Address for notices or communications to Counterparty:

 

Pandora Media, Inc.
 2101 Webster Street, Suite 1650

Oakland, California 94612
 Attention:                                         General Counsel
 Telephone No.:             (510) 593-2729 
 Facsimile No.:                   (510) 593-2729

 

(b)                                 Address for notices or communications to Dealer:

 

To:                                                                             Morgan Stanley & Co. LLC

 

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1585 Broadway, 4th Floor

New York, NY 10036

Attention:                                         David Oakes

Telephone:                                   (212) 761-5319

Facsimile:                                         (212) 404-9480
 Email:                                                            David.Oakes@morganstanley.com

 

With a copy to:            Morgan Stanley & Co. LLC

1221 Avenue of the Americas, 34th Floor

New York, NY 10020

Attention:                                         Anthony Cicia

Telephone:                                   (212) 762-4828

Facsimile:                                         (212) 507-4338

Email:                                                            Anthony.Cicia@morganstanley.com

 

8.                                      Representations and Warranties of Counterparty.

 

Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of December 3, 2015 among Counterparty and Morgan Stanley & Co. LLC (the “Initial Purchaser”), 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 is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or incorporation and 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 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 of 1933, as amended (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.

 

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(e)                                  Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended (the “CEA”), other than a person that is an eligible contract participant under Section 1a(18)(C) of the CEA).  The Transaction has been subject to individual negotiation by the parties.  The Transaction has not been executed or traded on a “trading facility” as defined in Section 1a(51) of the CEA.

 

(f)                                   It is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.  “Material” information for these purposes is any information to which an investor would reasonably attach importance in reaching a decision to buy, sell or hold 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 $50 million.

 

(i)                                     Counterparty is a “qualified institutional buyer” as defined in Rule 144A under the Securities Act or an “accredited investor” as defined in Section 2(a)(15)(ii) of the Securities Act.

 

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

 

(k)                                 Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization.

 

(l)                                     Counterparty shall immediately provide written notice to Dealer upon obtaining knowledge of the occurrence of any event that would constitute an Event of Default, a Potential Event of Default, a Potential Adjustment Event, a Merger Event or any other Extraordinary Event; provided, however, that should Counterparty be in possession of material non-public information with respect to Counterparty or the Shares, Counterparty shall not communicate such information to Dealer.

 

(m)                             Counterparty has (and shall at all times during the Transaction have) the capacity and authority to invest directly in the Shares underlying the Transaction and has not entered into the Transaction with the intent to avoid any regulatory filings.

 

(n)                                 Counterparty’s financial condition is such that it has no need for liquidity with respect to its investment in the Transaction and no need to dispose of any portion thereof to satisfy any existing or contemplated undertaking or indebtedness.

 

(o)                                 Counterparty’s investments in and liabilities in respect of the Transaction, which it understands are not readily marketable, are not disproportionate to its net worth, and Counterparty is able to bear any loss in connection with the Transaction, including the loss of its entire investment in the Transaction.

 

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(p)                                 Counterparty understands, agrees and acknowledges that Dealer has no obligation or intention to register the Transaction under the Securities Act, any state securities law or other applicable federal securities law.

 

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

 

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

 

(s)                                   Without limiting the generality of Section 13.1 of the Equity Definitions, Counterparty acknowledges that Dealer is not making any representations or warranties with respect to the treatment of the Transaction under FASB Statements 128, 133, as amended, 149 or 150, EITF Issue No. 00-19, 01-6, 03-6 or 07-5 (or any successor issue statements), under FASB’s Liabilities & Equity Project or under FASB Staff Position or any other accounting guidance.

 

(t)                                    (A) Counterparty is acting for its own account, and it has made its own independent decisions to enter into the Transaction and as to whether the Transaction is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary, (B) Counterparty is not relying on any communication (written or oral) of Dealer or any of its affiliates as investment advice or as a recommendation to enter into the Transaction (it being understood that information and explanations related to the terms and conditions of the Transaction shall not be considered investment advice or a recommendation to enter into the Transaction) and (C) no communication (written or oral) received from Dealer or any of its affiliates shall be deemed to be an assurance or guarantee as to the expected results of the Transaction.

 

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.

 

(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 206.16 million (in the case of the first such notice) or (ii) thereafter more than 15.58 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 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

 

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(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 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, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities.  The remedies provided for in this paragraph (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.

 

(c)                                  Regulation M.  (x) Each of Counterparty and each of its subsidiaries (A) is not on the Trade Date engaged in a distribution, as such term is used in Regulation M under 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 and (B) shall not, and Counterparty shall cause its subsidiaries not to, until the second Scheduled Trading Day immediately following the Effective Date, engage in any such distribution, and (y)(A) on each day during any Settlement Averaging Period, the Shares or securities that are convertible into, or exchangeable or exercisable for, Shares, are not, and shall not be, subject to a “restricted period,” as defined in Regulation M and (B) Counterparty shall not, and Counterparty shall cause its subsidiaries not to, engage in any “distribution,” as such term is defined in Regulation M, other than a distribution meeting the requirements of the exceptions set forth in sections 101(b)(10) and 102(b)(7) of Regulation M, until the second Exchange Business Day following the final Valid Day of the last Settlement Averaging Period.

 

(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 may not transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer.

 

(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 or a rating for its long term, unsecured and unsubordinated indebtedness that is equal to or better than Dealer’s long-term issuer rating or the rating for Dealer’s long-term, unsecured and unsubordinated indebtedness at the time of such transfer or

 

17











 

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) with Counterparty’s consent (such consent not to be unreasonably withheld or delayed), to any third party financial institution that is a recognized dealer in the market for U.S. corporate equity derivatives.  Notwithstanding anything to the contrary set forth herein, no transfer or assignment by dealer shall be permitted to any third party unless such third party provides Counterparty with a duly executed IRS Form W-9 or applicable IRS Form W-8.

 

(iii)                               If at any time at which (A) the Section 16 Percentage exceeds 8.5%, (B) the Option Equity Percentage exceeds 14.5% 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 financial institution pursuant to clause (ii)(B) of this Section 9(e) 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 each person subject to aggregation of Shares with Dealer under Section 13 or Section 16 of the Exchange Act and rules promulgated thereunder directly or indirectly beneficially own (as defined under Section 13 or Section 16 of the Exchange Act and rules promulgated thereunder) and (B) the denominator of which is the number of Shares outstanding.  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, but excluding any filings of Form 13F, Schedule 13D or Schedule 13G under the Exchange Act) of a Dealer Person, or could result in an adverse effect on a Dealer Person, under any Applicable Restriction, as determined by Dealer in its reasonable discretion, minus (B) 1% of the number of Shares outstanding.

 

(iv)                              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

 

18











 

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 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.  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)                               the Relevant Settlement Method terms will apply on each Staggered Settlement Date, except that the cash and/or Shares due upon settlement will be allocated among such Staggered Settlement Dates as specified by Dealer in the notice referred to in clause (i) above.

 

(g)                                  [Reserved.]

 

(h)                                 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 one Scheduled Trading Day 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);

 

(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 one Scheduled Trading Day 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 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,

 

19












 

(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 occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture, then an Additional Termination Event shall occur 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.

 

(i)                                     Rule 10b-18.

 

(i)                                     During any Settlement Averaging Period, neither Counterparty nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18) shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except through Dealer.

 

(ii)                                  Counterparty agrees that it (A) will not, during any Settlement Averaging Period, make, or permit to be made (to the extent within its control), any public announcement (as defined in Rule 165(f) under the Securities Act) of any Merger Transaction or potential Merger Transaction 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; (B) shall promptly (but in any event prior to the next opening of the regular trading session on the Exchange) notify Dealer following any such announcement that such announcement has been made; and (C) shall promptly (but in any event prior to the next opening of the regular trading session on the Exchange) provide Dealer with written notice specifying (i) Counterparty’s average daily Rule 10b-18 Purchases (as defined in Rule 10b-18) during the three full calendar months immediately preceding the announcement date that were not effected through Dealer or its affiliates and (ii) the number of Shares purchased pursuant to the proviso in Rule 10b-18(b)(4) under the Exchange Act for the three full calendar months preceding the announcement date. Such written notice shall be deemed to be a certification by Counterparty to Dealer that such information is true and correct. In addition, Counterparty shall promptly notify Dealer of the earlier to occur of the completion of such transaction and the completion of the vote by target shareholders. “Merger Transaction” means any merger, acquisition or similar transaction involving a recapitalization as contemplated by Rule 10b-18(a)(13)(iv) under the Exchange Act.

 

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(j)                                    Amendments to Equity Definitions.

 

(i)                                     Section 11.2(e)(vii) of the Equity Definitions is hereby amended by deleting the words “diluting or concentrative” and replacing them with the word “material”; and 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) 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 Dealer’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.”

 

(iii)                               Section 12.9(b)(i) of the Equity Definitions is hereby amended by (1) (a) replacing “either party may elect” with “Dealer may elect” and (b) replacing “notice to the other party” with “notice to Counterparty” in the first sentence of such section and (2) adding the following sentence at the end: “If Dealer does not elect to terminate the Transaction, the Calculation Agent may adjust the terms of the Transaction upon the occurrence of such an event pursuant to Modified Calculation Agent Adjustment (as if such event were a Tender Offer).”

 

(iv)                              Section 12.9(b)(vi) of the Equity Definitions is hereby amended by (1) replacing the comma immediately following clause (A) thereof with the word “or”, (2) deleting clause (C) thereof in its entirety and (3) replacing the words “either party” in the last sentence thereof with the words “the Hedging Party”.

 

(k)                                 No Collateral or Setoff.  Notwithstanding any provision of the Agreement or any other agreement between the parties to the contrary, the obligations of Counterparty hereunder are not secured by any collateral. Obligations under the Transaction shall not be set off against any other obligations of the parties, whether arising under the Agreement, this Confirmation, under any other agreement between the parties hereto, by operation of law or otherwise, and no other obligations of the parties shall be set off against obligations under the Transaction, whether arising under the Agreement, this Confirmation, under any other agreement between the parties hereto, by operation of law or otherwise, and each party hereby waives any such right of setoff.

 

(l)                                     Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events.  If in respect of the Transaction, an amount (a “Payment Obligation”) is payable by Dealer to Counterparty (i) pursuant to Section 12.7 or Section 12.9 of the Equity Definitions or (ii) pursuant to Section 6(d)(ii) of the Agreement (in each case, other than (w) a Nationalization, Insolvency or Merger Event, in each case, as a result of which the Shares have changed solely into cash, (x) a Merger Event or Tender Offer that is within Counterparty’s control, (y) an Event of Default in respect of which Counterparty is the Defaulting Party or a Termination Event in respect of 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 of Counterparty’s control or (z) an Additional Termination Event as a result of an Early Conversion that resulted from an event or events within Counterparty’s control), Dealer shall satisfy any such 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 Merger Date, Announcement Date (in the case of 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 an election, in which case Sections 12.7 or 12.9 of the Equity Definitions or Section 6(d)(ii) of the Agreement, as the case may be, shall apply.  If the Share Termination Alternative applies, the following provisions shall

 

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apply on the Scheduled Trading Day immediately following the relevant Merger Date, Announcement Date, Early Termination Date or date of cancellation, as applicable:

 

	
Share Termination Alternative:
    	
 
    	
Applicable and means that Dealer shall deliver to   Counterparty the Share Termination Delivery Property on, or within a commercially   reasonable period of time after, the date when the Payment Obligation would   otherwise be due pursuant to Section 12.7 or 12.9 of the Equity   Definitions or Sections 6(d)(ii) and 6(e) of the Agreement, as   applicable, in satisfaction of the 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, equal to the Payment Obligation divided by the Share Termination Unit Price. The   Calculation Agent shall adjust the Share Termination Delivery Property by   replacing any fractional portion of 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. For the avoidance of doubt, the parties agree that in determining   the Share Termination Delivery Unit Price the Calculation Agent may consider   the purchase price paid in connection with the purchase of Share Termination   Delivery Property acquired by Dealer to satisfy its delivery obligations   hereunder.
    
	
 
    	
 
    	
 
    
	
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 will be applicable,
    


 

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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   Termination Alternative is applicable to the Transaction.
    


 

(m)                             Registration.  Counterparty hereby agrees that if, in the good faith, 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, make available to Dealer an effective registration statement under the Securities Act and (A) enter into an agreement, in form and substance satisfactory to Dealer, substantially in the form of an underwriting agreement for a registered secondary offering, (B) use its reasonable best efforts to provide accountant’s “comfort” letters customary in form for registered offerings of equity securities, (C) provide disclosure opinions of nationally recognized outside counsel to Counterparty reasonably acceptable to Dealer, (D) provide other customary opinions, certificates and closing documents customary in form for registered offerings of equity securities and (E) afford Dealer a reasonable opportunity to conduct a due diligence investigation with respect to Counterparty customary in scope for underwritten offerings of equity securities; provided, however, that if Dealer, in its sole 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 and comply with a private placement agreement substantially similar to private placement purchase agreements customary for private placements of equity securities, in form and substance satisfactory to Dealer (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 discount from the public market price of the Shares incurred on the sale of Hedge Shares in a private placement), or (iii) purchase the Hedge Shares from Dealer at the Relevant Price on such Exchange Business Days, and in the amounts, requested by Dealer.

 

(n)                                 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 that holders of Shares have elected to receive 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)                                  promptly following any adjustment to the Convertible Notes in connection with any Potential Adjustment Event, Merger Event or Tender Offer, Counterparty shall, or Counterparty shall cause Counterparty to, give Dealer written notice of the details of such adjustment.

 

(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

 

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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 (i) Dealer reasonably determines, in its commercially reasonable discretion, that such action is reasonably necessary or appropriate to preserve Dealer’s hedging or hedge unwind activity hereunder in light of existing liquidity conditions (but only in the case of a material decrease in liquidity relative to the Trade Date) or (ii) Dealer determines, based on the advice of counsel, to enable Dealer to effect purchases of Shares in connection with its hedging, hedge unwind or settlement activity hereunder in a manner that would, if Dealer were Counterparty or an affiliated purchaser of Counterparty, be in 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 agree and acknowledge that Dealer is a “financial institution,” “swap participant” and “financial participant” within the meaning of Sections 101(22), 101(53C) and 101(22A) of the Bankruptcy Code.  The parties hereto further agree and acknowledge (A) that this Confirmation is (i) a “securities contract,” as such term is defined in Section 741(7) of the Bankruptcy Code, with respect to which each payment and delivery hereunder or in connection herewith is a “termination value,” “payment amount” or “other transfer obligation” within the meaning of Section 362 of the Bankruptcy Code and a “settlement payment” or a “transfer” within the meaning of Section 546 of the Bankruptcy Code, and (ii) a “swap agreement,” as such term is defined in Section 101(53B) of the Bankruptcy Code, with respect to which each payment and delivery hereunder or in connection herewith is a “termination value,” a “payment amount” or “other transfer obligation” within the meaning of Section 362 of the Bankruptcy Code and a “transfer” within the meaning of Section 546 of the Bankruptcy Code, and (B) that Dealer is entitled to the protections afforded by, among other sections, Section 362(b)(6), 362(b)(17), 362(b)(27), 362(o), 546(e), 546(g), 546(j), 548(d)(2), 555, 560 and 561 of the Bankruptcy Code.

 

(s)                                   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.

 

(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

 

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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 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 Counterparty 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 “Additional Securities” (as defined in the Purchase Agreement) is not consummated with the Initial Purchaser for any reason, 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 parties from and agrees not to make any claim against any other party with respect to any obligations or liabilities of any other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date.  Each of Dealer and Counterparty represents and acknowledges to the other parties that, 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 purposes of 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 shall 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.

 

(y)                                 Determinations; Adjustments. All calculations, adjustments and determinations made by Dealer hereunder, whether as Calculation Agent, as Determining Party, as Hedging Party, or following the occurrence of an Early Termination Date, shall be made in good faith and in a commercially reasonable manner. Following any determination, adjustment or calculation by Dealer hereunder (including, without limitation, in its capacity as Calculation Agent), Dealer shall deliver to Counterparty, within five Exchange Business Days after a written request by Counterparty, a report in a commonly used file format for the storage and manipulation of financial data (including the methodology, interest rates, quotations and market data (including volatility) but without disclosing any proprietary or confidential models or other proprietary or confidential information)

 

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displaying in reasonable detail the basis for such determination, adjustment or calculation, as the case may be.

 

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

 

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Counterparty hereby agrees to check this Confirmation and to confirm that the foregoing correctly sets forth the terms of the Transaction by signing in the space provided below and returning to Dealer a facsimile of the fully-executed Confirmation to Dealer.

 

	
 
    	
 
    	
Very truly yours,
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
MORGAN   STANLEY & CO. LLC
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Scott McDavid
    
	
 
    	
 
    	
Name: Scott McDavid
    
	
 
    	
 
    	
Title: Managing   Director
    
	
 
    	
 
    	
 
    


 

Accepted and confirmed
 as of the Trade Date:

 

	
PANDORA   MEDIA, INC.
    	
 
    
	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
By:
    	
/s/ Michael Herring
    	
 
    	
 
    
	
Authorized Signatory
    	
 
    
	
Name:  Michael Herring