Exhibit 10.2


 


Deutsche Bank 


 


Deutsche Bank AG, London Branch


Winchester house


1 Great Winchester St,


London EC2N 2DB


Telephone:  44 20
7545 8000


 


c/o Deutsche Bank Securities Inc.


60
Wall Street


New
York, NY 10005


Telephone:
212-250-2500


 


	
  DATE:

  	
  May 21,
  2009

  
	
   

  	
   

  
	
  TO:

  	
  Cephalon, Inc.

  
	
  ATTENTION:

  	
  Gerald  J.
  Pappert

  
	
  FACSIMILE:

  	
  (610) 738-6258

  
	
   

  	
   

  
	
  FROM:

  	
  Deutsche Bank AG, London Branch

  
	
  TELEPHONE:

  	
  44
  20 7545 0556

  
	
  FACSIMILE:

  	
  44
  11 3336 2009

  
	
   

  	
   

  
	
  SUBJECT:

  	
  Equity
  Derivatives Confirmation

  
	
   

  	
   

  
	
  REFERENCE NUMBER(S):

  	
  331715
  and 332055

  



 


The purpose of this
facsimile agreement (this “Confirmation”) is to confirm the amended and restated
terms and conditions of the transaction entered into between Deutsche Bank AG, London Branch (“Deutsche”) and Cephalon, Inc. (“Counterparty”) on the
Trade Date specified below (the “Transaction”). 
This amended and restated Confirmation constitutes a “Confirmation” as
referred to in the ISDA Master Agreement specified below and amends and
restates in its entirety the equity derivatives confirmation regarding the sale
of warrants, dated May 21, 2009, and subject to the Agreement (the “Original
Confirmation”).  All references
to the Original Confirmation in the Agreement or in other documentation between
the parties shall be to this amended and restated Confirmation.  This amended and restated Confirmation
constitutes the entire agreement and understanding of the parties with respect
to the subject matter and terms of the Transaction and supersedes all prior or
contemporaneous written and oral communications with respect thereto.


 


DEUTSCHE
BANK AG IS NOT REGISTERED AS A BROKER OR DEALER UNDER THE U.S. SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED. 
DEUTSCHE BANK SECURITIES INC. (“AGENT”) HAS ACTED SOLELY AS AGENT IN
CONNECTION WITH THE TRANSACTION AND HAS NO OBLIGATION, BY WAY OF ISSUANCE,
ENDORSEMENT, GUARANTEE OR OTHERWISE WITH RESPECT TO THE PERFORMANCE OF EITHER
PARTY UNDER THE TRANSACTION.  DEUTSCHE
BANK AG, LONDON BRANCH IS NOT A MEMBER OF THE SECURITIES INVESTOR PROTECTION
CORPORATION (SIPC).


 


	
  Chairman
  of the Supervisory Board: Clemens Börsig Board of Managing Directors:
  Hermann-Josef Lamberti, Josef Ackermann, Dr. Hugo Banziger, Anthony
  DiIorio

  	
   

  	
  Deutsche
  Bank AG is regulated by the FSA for the conduct of designated investment
  business in the UK, is a member of the London Stock Exchange and is a limited
  liability company incorporated in the Federal Republic of Germany HRB
  No. 30 000 District Court of Frankfurt am Main; Branch Registration
  No. in England and Wales BR000005, Registered address: Winchester House,
  1 Great Winchester Street, London EC2N 2DB.

  



 

















 


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


 


This
Confirmation evidences a complete and binding agreement between Deutsche and
Counterparty as to the terms of the Transaction to which this Confirmation
relates.  This Confirmation shall
supplement, form a part of, and be subject to an agreement (the “Agreement”) in the form of the ISDA 2002
Master Agreement as if Deutsche and Counterparty had executed an agreement in
such form (without any Schedule but with the elections set forth in this
Confirmation).  For the avoidance of
doubt, the Transaction shall be the only transaction under the Agreement.


 


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


 


	
  General:

  	
   

  
	
   

  	
   

  
	
  Trade
  Date:

  	
  May 21,
  2009.

  
	
   

  	
   

  
	
  Effective
  Date:

  	
  May 27,
  2009.

  
	
   

  	
   

  
	
  Components:

  	
  The
  Transaction will be divided into individual Components, each with the terms
  set forth in this Confirmation, and, in particular, with the Number of
  Warrants and Expiration Date set forth in this Confirmation. The payments and
  deliveries to be made upon settlement of the Transaction will be determined
  separately for each Component as if each Component were a separate Transaction
  under the Agreement.

  
	
   

  	
   

  
	
  Warrant
  Style:

  	
  European.

  
	
   

  	
   

  
	
  Warrant
  Type:

  	
  Call.

  
	
   

  	
   

  
	
  Seller:

  	
  Counterparty.

  
	
   

  	
   

  
	
  Buyer:

  	
  Deutsche.

  
	
   

  	
   

  
	
  Shares:

  	
  The
  common stock, par value USD 0.01 per share, of Counterparty.

  
	
   

  	
   

  
	
  Number
  of Warrants:

  	
  For
  each Component, as provided in Annex C to this Confirmation.

  
	
   

  	
   

  
	
  Strike
  Price:

  	
  As
  provided in Annex B to this Confirmation.

  
	
   

  	
   

  
	
  Premium:

  	
  As
  provided in Annex B to this Confirmation.

  
	
   

  	
   

  
	
  Additional
  Premium:

  	
  As
  provided in Annex B to this Confirmation. The Additional Premium shall
  be paid by Deutsche to Counterparty on the Premium Payment Date.

  
	
   

  	
   

  
	
  Premium
  Payment Date:

  	
  The
  Effective Date.

  
	
   

  	
   

  
	
  Exchange:

  	
  The
  NASDAQ Global Select Market.

  



 


2

















 


	
  Related
  Exchanges:

  	
  All
  Exchanges.

  
	
   

  	
   

  
	
  Calculation
  Agent:

  	
  Deutsche.

  
	
   

  	
   

  
	
  Procedure for Exercise:

  	
   

  
	
   

  	
   

  
	
  In
  respect of any Component:

  	
   

  
	
   

  	
   

  
	
  Expiration
  Date:

  	
  As
  provided in Annex C to this Confirmation (or, if such date is not a
  Scheduled Trading Day, the next following Scheduled Trading Day that is not
  already an Expiration Date for another Component); provided that if that date is a Disrupted Day, the
  Expiration Date for such Component shall be the first succeeding Scheduled
  Trading Day that is not a Disrupted Day and is not or is not deemed to be an
  Expiration Date in respect of any other Component of the Transaction
  hereunder; and provided further
  that if the Expiration Date has not occurred pursuant to the preceding
  proviso as of the Final Disruption Date, the Final Disruption Date shall be
  the Expiration Date (irrespective of whether such date is an Expiration Date
  in respect of any other Component for the Transaction) and, notwithstanding
  anything to the contrary in this Confirmation or the Equity Definitions, the
  Relevant Price for the Expiration Date shall be the prevailing market value
  per Share determined by the Calculation Agent in a commercially reasonable
  manner. Notwithstanding the foregoing and anything to the contrary in the
  Equity Definitions, if a Market Disruption Event occurs on any Expiration
  Date, the Calculation Agent may determine that such Expiration Date is a
  Disrupted Day only in part, in which case the Calculation Agent shall make
  adjustments to the number of Warrants for the relevant Component for which
  such day shall be the Expiration Date and shall designate the Scheduled
  Trading Day determined in the manner described in the immediately preceding
  sentence as the Expiration Date for the remaining Warrants for such
  Component. Section 6.6 of the Equity Definitions shall not apply to any
  Valuation Date occurring on an Expiration Date. “Final Disruption Date” has the meaning provided in Annex
  B to this Confirmation.

  
	
   

  	
   

  
	
  Automatic
  Exercise:

  	
  Applicable.
  Each Warrant not previously exercised will be deemed to be automatically
  exercised on the Expiration Time on the relevant Expiration Date.

  
	
   

  	
   

  
	
  Market
  Disruption Event:

  	
  Section 6.3(a) of
  the Equity Definitions is hereby amended by deleting the words “during the
  one hour period that ends at the relevant Valuation Time, Latest Exercise
  Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may
  be,” in clause (ii) thereof, and by replacing the words “or (iii) an
  Early Closure.” with “(iii) an Early Closure or (iv) a Regulatory
  Disruption, in each case that the Calculation Agent determines is material.”

  



 


3

















 


	
   

  	
  Section 6.3(d) of
  the Equity Definitions is hereby amended by deleting the remainder of the
  provision following the term “Scheduled Closing Time” in the fourth line
  thereof.

  
	
   

  	
   

  
	
  Regulatory
  Disruption:

  	
  Any
  event that Deutsche, in its commercially reasonable discretion upon the
  advice of outside counsel, determines makes it appropriate with regard to any
  legal, regulatory or self-regulatory requirements or related policies and
  procedures (whether or not such requirements, policies or procedures are
  imposed by law or have been voluntarily adopted by Deutsche, and including
  without limitation Rule 10b-18, Rule 10b-5, Regulation 13D-G and
  Regulation 14E under the U.S. Securities Exchange Act of 1934, as amended
  (the “Exchange Act”), and
  Regulation M and/or analyzing Deutsche as if Deutsche were the Issuer or an
  affiliated purchaser of the Issuer), for Deutsche to refrain from or decrease
  any market activity in connection with the Transaction. Deutsche shall notify
  Counterparty as soon as reasonably practicable that a Regulatory Disruption
  has occurred and the Expiration Dates affected by it.

  
	
   

  	
   

  
	
  Settlement Terms:

  	
   

  
	
   

  	
   

  
	
  In
  respect of any Component:

  	
   

  
	
   

  	
   

  
	
  Net
  Share Settlement:

  	
  On
  each Settlement Date, Counterparty shall deliver to Deutsche a number of
  Shares equal to the Net Share Amount for such Settlement Date to the account
  specified by Deutsche, and cash in lieu of any fractional shares valued at
  the Relevant Price for the Valuation Date corresponding to such Settlement
  Date. If Deutsche, upon the advice of counsel, reasonably determines that the
  Shares deliverable hereunder would not be immediately freely transferable by
  Deutsche under Rule 144 (“Rule 144”)
  under the U.S. Securities Act of 1933, as amended (the “Securities
  Act”) or any successor provision, then Deutsche may elect to
  either (x) accept delivery of such Shares notwithstanding the fact that
  such Shares are not immediately freely transferable by Deutsche under Rule 144
  or any successor provision or (y) require that such delivery take place
  pursuant to the provisions set forth opposite the caption “Registration/Private Placement Procedures” below.

  
	
   

  	
   

  
	
  Net
  Share Amount:

  	
  For
  any Exercise Date, a number of Shares, as calculated by the Calculation
  Agent, equal to (x) the product of
  (i) the number of Warrants being exercised or deemed exercised on such
  Exercise Date and (ii) the excess, if
  any, of the Relevant Price for the Valuation Date occurring on such Exercise
  Date over the Strike Price (such product, the “Net Share
  Settlement Amount”) divided by (y) such
  Relevant Price.

  
	
   

  	
   

  
	
  Relevant
  Price:

  	
  On
  any Valuation Date, the volume weighted average price per Share for the
  regular trading session of the Exchange as displayed under the heading
  “Bloomberg VWAP” on Bloomberg Page CEPH <equity>

  



 


4

















 


	
   

  	
  AQR
  on such Valuation Date in respect of the period from 9:30 am to 4:00 p.m.
  (New York City time) on such Valuation Date (or if such volume weighted average
  price is not available, the Calculation Agent’s reasonable, good faith
  estimate of such price on such Valuation Date).

  
	
   

  	
   

  
	
  Settlement
  Currency:

  	
  USD.

  
	
   

  	
   

  
	
  Other
  Applicable Provisions:

  	
  The
  provisions of Sections 9.1(c), 9.8, 9.9, 9.10, 9.11 (except that the
  Representation and Agreement contained in Section 9.11 of the Equity
  Definitions shall be modified by excluding any representations therein
  relating to restrictions, obligations, limitations or requirements under
  applicable securities laws as a result of the fact that Counterparty is the
  Issuer of the Shares) and 9.12 of the Equity Definitions will be applicable,
  except that all references in such provisions to “Physical Settlement” and
  “Physically-settled” shall be read as references to “Net Share Settlement”
  and “Net Share Settled”. “Net Share Settled” in relation to any Warrant means
  that Net Share Settlement is applicable to such Warrant.

  
	
   

  	
   

  
	
  Dividends:

  	
   

  
	
   

  	
   

  
	
  In
  respect of any Component:

  	
   

  
	
   

  	
   

  
	
  Dividend
  Adjustments:

  	
  Counterparty agrees to notify Deutsche promptly of the
  announcement of an ex-dividend date for any cash dividend by Counterparty. If
  an ex-dividend date for any cash dividend occurs at any time from, but
  excluding, the Trade Date to, and including, the Expiration Date, then in
  lieu of any adjustments as provided under “Method of Adjustment” below, the Calculation Agent shall make such
  adjustments to the Strike Price and/or the Number of Warrants as it deems
  appropriate to preserve for the parties the intended economic benefits of the
  Transaction.

  
	
   

  	
   

  
	
  Adjustments:

  	
   

  
	
   

  	
   

  
	
  In
  respect of any Component:

  	
   

  
	
   

  	
   

  
	
  Method
  of Adjustment:

  	
  Calculation
  Agent Adjustment; provided, however, that the Equity Definitions
  shall be amended by replacing the words “diluting or concentrative” in
  Sections 11.2(a), 11.2(c) (in two instances) and 11.2(e)(vii) with
  the word “material” and by adding the words “or the Transaction” after the
  words “theoretical value of the relevant Shares” in Sections 11.2(a), 11.2(c) and
  11.2(e)(vii); provided further that
  adjustments may be made to account for changes in expected volatility,
  expected dividends, expected correlation, expected stock loan rate and
  expected liquidity relative to the relevant Share.

  



 


5

















 


	
  Extraordinary Events:

  	
   

  
	
   

  	
   

  
	
  New
  Shares:

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

  
	
   

  	
   

  
	
  Modified
  Calculation Agent Adjustment:

  	
  If,
  in respect of any Merger Event to which Modified Calculation Agent Adjustment
  applies, the adjustments to be made in accordance with Section 12.2(e)(i) of
  the Equity Definitions would result in Counterparty being different from the
  issuer of the Shares, then with respect to such Merger Event, as a condition
  precedent to the adjustments contemplated in Section 12.2(e)(i) of
  the Equity Definitions, Counterparty and the issuer of the Shares shall,
  prior to the Merger Date, have entered into such documentation containing
  representations, warranties and agreements relating to securities law and
  other issues as requested by Deutsche that Deutsche has determined, in its
  reasonable discretion, to be reasonably necessary or appropriate to allow
  Deutsche to continue as a party to the Transaction, as adjusted under Section 12.2(e)(i) of
  the Equity Definitions, and to preserve its hedging or hedge unwind
  activities in connection with the Transaction in a manner compliant with
  applicable legal, regulatory or self-regulatory requirements, or with related
  policies and procedures applicable to Deutsche, and if such conditions are
  not met or if the Calculation Agent determines that no adjustment that it
  could make under Section 12.2(e)(i) of the Equity Definitions will
  produce a commercially reasonable result, then the consequences set forth in Section 12.2(e)(ii) of
  the Equity Definitions shall apply.

   

  For
  greater certainty, the definition of “Modified Calculation Agent Adjustment”
  in Sections 12.2 and 12.3 of the Equity Definitions shall be amended by
  adding the following italicized language to the stipulated parenthetical
  provision: “(including adjustments to account for changes in expected volatility, expected dividends,
  expected correlation, expected stock loan rate or expected liquidity relevant to the
  Shares or to the Transaction) from the
  Announcement Date to the Merger Date (Section 12.2) or Tender Offer Date
  (Section 12.3)”.

  
	
   

  	
   

  
	
  Announcement
  Event:

  	
  If
  an Announcement Event occurs, the Calculation Agent will determine  the economic effect of the Announcement
  Event on the theoretical value of each Component of the Transaction
  (including without limitation any change in expected volatility, expected
  dividends, expected correlation, expected stock loan rate or expected
  liquidity relevant to the Shares or to the Transaction) from the potential
  Announcement Date to the Expiration Date for such Component and, if such
  economic effect is material, the Calculation Agent will adjust the terms of
  the Transaction to reflect such economic effect. “Announcement Event” shall mean the occurrence of a
  potential Announcement Date of a Merger Event or Tender Offer, if the Merger
  Date or Tender Offer Date does not, or is not anticipated to, occur on or
  prior to the Expiration Date for, or any earlier termination of, the relevant
  Component.

  



 


6

















 


	
  Consequences of Merger Events:

  	
   

  
	
   

  	
   

  
	
  (a) Share-for-Share:

  	
  Modified
  Calculation Agent Adjustment.

  
	
   

  	
   

  
	
  (b) Share-for-Other:

  	
  Cancellation
  and Payment (Calculation Agent Determination).

  
	
   

  	
   

  
	
  (c) Share-for-Combined:

  	
  Component
  Adjustment.

  
	
   

  	
   

  
	
  Tender
  Offer:

  	
  Applicable

  
	
   

  	
   

  
	
  Consequences of Tender Offers:

  	
   

  
	
   

  	
   

  
	
  (a) Share-for-Share:

  	
  Modified
  Calculation Agent Adjustment.

  
	
   

  	
   

  
	
  (b) Share-for-Other:

  	
  Modified
  Calculation Agent Adjustment.

  
	
   

  	
   

  
	
  (c) Share-for-Combined:

  	
  Modified
  Calculation Agent Adjustment.

  
	
   

  	
   

  
	
  Nationalization,
  Insolvency and Delisting:

  	
  Cancellation
  and Payment (Calculation Agent Determination); provided that in addition to the provisions of Section 12.6(a)(iii) of
  the Equity Definitions, it shall also constitute a Delisting if the Exchange
  is located in the United States and the Shares are not immediately re-listed,
  re-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ
  Global Select Market or The NASDAQ Global Market (or their respective
  successors); if the Shares are immediately re-listed, re-traded or re-quoted
  on any such exchange or quotation system, such exchange or quotation system
  shall be deemed to be the Exchange. For the avoidance of doubt, the
  occurrence of any event that is a Merger Event and would otherwise have been
  a Delisting will have the consequence specified for the relevant Merger
  Event.

  
	
   

  	
   

  
	
  Additional Disruption Events:

  	
   

  
	
   

  	
   

  
	
  Change
  in Law:

  	
  Applicable; provided that Section 12.9(a)(ii) of
  the Equity Definitions is hereby amended (i) by the replacement of the
  word “Shares” with “Hedge Positions”; (ii) by adding the phrase “or
  public announcement” immediately after the phrase “due to the promulgation”
  in the third line thereof and adding the phrase “formal or informal” before
  the word “interpretation” in the same line; and (iii) immediately
  following the word “Transaction” in clause (X) thereof, adding the
  phrase “in the manner contemplated by the Hedging Party on the Trade Date,
  unless the illegality is due to an act or omission of the party seeking to
  elect termination of the Transaction”.

  
	
   

  	
   

  
	
  Failure
  to Deliver:

  	
  Inapplicable

  
	
   

  	
   

  
	
  Insolvency
  Filing:

  	
  Applicable

  
	
   

  	
   

  
	
  Loss
  of Stock Borrow:

  	
  Applicable

  
	
   

  	
   

  
	
  Maximum Stock Loan
  Rate:

  	
  300
  basis points per annum

  
	
   

  	
   

  
	
  Increased
  Cost of Stock Borrow:

  	
  Applicable

  



 


7

















 


	
  Initial Stock Loan
  Rate:

  	
  25
  basis points per annum

  
	
   

  	
   

  
	
  Increased
  Cost of Hedging:

  	
  Applicable

  
	
   

  	
   

  
	
  Hedging
  Disruption:

  	
  Applicable

  
	
   

  	
   

  
	
  Hedging
  Party:

  	
  Deutsche
  for all applicable Additional Disruption Events

  
	
   

  	
   

  
	
  Determining
  Party:

  	
  Deutsche
  for all applicable Additional Disruption Events

  
	
   

  	
   

  
	
  Acknowledgements:

  	
   

  
	
   

  	
   

  
	
  Non-Reliance:

  	
  Applicable

  
	
   

  	
   

  
	
  Agreements
  and Acknowledgements

  	
   

  
	
  Regarding
  Hedging Activities:

  	
  Applicable

  
	
   

  	
   

  
	
  Additional
  Acknowledgements:

  	
  Applicable

  



 


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


 


	
  (i)

  	
  Tax Disclosure. Notwithstanding anything to the contrary herein, in
  the Equity Definitions or in the Agreement, and notwithstanding any express
  or implied claims of exclusivity or proprietary rights, the parties (and each
  of their employees, representatives or other agents) are authorized to
  disclose to any and all persons, beginning immediately upon commencement of
  their discussions and without limitation of any kind, the tax treatment and
  tax structure of the Transaction, and all materials of any kind (including
  opinions or other tax analyses) that are provided by either party to the
  other relating to such tax treatment and tax structure.

  
	
   

  	
   

  
	
  (ii)

  	
  Commodity Exchange Act. It is an “eligible
  contract participant” within the meaning of Section 1a(12) of the U.S.
  Commodity Exchange Act, as amended (the “CEA”). The
  Transaction has been subject to individual negotiation by the parties. The
  Transaction has not been executed or traded on a “trading facility” as
  defined in Section 1a(33) of the CEA. It
  has entered into the Transaction with the
  expectation and intent that the Transaction shall be performed to its
  termination date.

  
	
   

  	
   

  
	
  (iii)

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

  
	
   

  	
   

  
	
  (iv)

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

  



 


Counterparty Representations: In addition
to the representations and warranties in the Agreement and those contained
elsewhere herein, Counterparty represents, warrants, acknowledges and covenants
that:


 


8
















 


	
   

  	
  (i)

  	
  Counterparty
  shall provide written notice to Deutsche as soon as reasonably practicable
  upon obtaining knowledge of the occurrence of any event that would constitute
  an Event of Default, a Potential Event of Default, a Potential Adjustment
  Event, a Merger Event or any other Extraordinary Event; provided,
  however, that should Counterparty be in possession of material
  non-public information regarding Counterparty, Counterparty shall not
  communicate such information to Deutsche in connection with this Transaction.

  
	
   

  	
   

  	
   

  
	
   

  	
  (ii)

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

  
	
   

  	
   

  	
   

  
	
   

  	
  (iii)

  	
  Counterparty
  is not entering into the Transaction for the purpose of (i) creating
  actual or apparent trading activity in the Shares (or any security
  convertible into or exchangeable for the Shares) or (ii) raising or
  depressing or otherwise manipulating the price of the Shares (or any security
  convertible into or exchangeable for the Shares), in either case in violation
  of the Exchange Act.

  
	
   

  	
   

  	
   

  
	
   

  	
  (iv)

  	
  Counterparty’s
  filings under the Exchange Act and other applicable securities laws that are
  required to be filed have been filed and, as of the respective dates thereof,
  there was 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.

  
	
   

  	
   

  	
   

  
	
   

  	
  (v)

  	
  Counterparty
  has not violated, and shall not take any action that violates (including,
  without limitation, any violation by Counterparty involving Deutsche), any
  applicable law (including, without limitation, the Securities Act and the
  Exchange Act) in connection with the Transaction.

  
	
   

  	
   

  	
   

  
	
   

  	
  (vi)

  	
  The
  representations and warranties of Counterparty set forth in Section 3 of
  the Agreement and Section 1 of the Underwriting Agreement dated
  May 21, 2009 between Counterparty and Deutsche Bank Securities Inc. as
  representative of the underwriters party thereto (the “Underwriting Agreement”) are true and
  correct and are hereby deemed to be repeated to Deutsche as if set forth
  herein.

  
	
   

  	
   

  	
   

  
	
   

  	
  (vii)

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

  
	
   

  	
   

  	
   

  
	
   

  	
  (viii)

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

  
	
   

  	
   

  	
   

  
	
   

  	
  (ix)

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

  



 


9

















 


	
   

  	
  (x)

  	
  Without limiting the
  generality of Section 13.1 of the Equity Definitions, Counterparty
  acknowledges that Deutsche is not making any representations or warranties
  with respect to the treatment of the Transaction under FASB Statements 128,
  133, 149 or 150 (or under any successor statement), 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 any other accounting
  guidance.

  
	
   

  	
   

  	
   

  
	
   

  	
  (xi)

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

  
	
   

  	
   

  	
   

  
	
   

  	
  (xii)

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

  
	
   

  	
   

  	
   

  
	
   

  	
  (xiii)

  	
  On
  each anniversary of the Trade Date, Counterparty shall deliver to Deutsche an
  officer’s certificate, signed by an authorized officer, stating the number of
  Available Shares (as defined in the provision titled “Limitation On Delivery
  of Shares” below)

  



 


Miscellaneous:


 


	
   

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

  
	
   

  	
   

  
	
   

  	
  Netting and Set-Off. The parties hereto
  agree that the Transaction shall not be subject to netting or set off with
  any other transaction.

  
	
   

  	
   

  
	
   

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

  
	
   

  	
   

  
	
   

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

  
	
   

  	
   

  
	
   

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

  
	
   

  	
   

  
	
   

  	
  No Collateral. Notwithstanding any provision
  of this Confirmation, the Agreement, Equity Definitions, or any other
  agreement between the parties to the contrary, the obligations of Counterparty
  under the Transaction are not secured by any collateral.

  
	
   

  	
   

  
	
   

  	
  Securities Contract; Swap Agreement.
  The parties hereto agree and acknowledge that Deutsche is a “financial
  institution,” “swap participant” and “financial participant” within the
  meaning of Sections 101(22), 101(53C) and 101(22A) of the Bankruptcy Code.
  The parties hereto further agree and acknowledge (A) that this
  Confirmation is (i) a “securities contract,” as such term is defined in
  Section 741(7) of the Bankruptcy Code, with respect to which each
  payment and delivery hereunder or in connection herewith is a “termination
  value,” “payment 

  



 


10

















 


	
   

  	
  amount” or “other transfer obligation” within the meaning of
  Section 362 of the Bankruptcy Code and a “settlement payment” or a
  “transfer” within the meaning of Section 546 of the Bankruptcy Code, and
  (ii) a “swap agreement,” as such term is defined in
  Section 101(53B) of the Bankruptcy Code, with respect to which each
  payment and delivery hereunder or in connection herewith is a “termination
  value,” a “payment amount” or “other transfer obligation” within the meaning
  of Section 362 of the Bankruptcy Code and a “transfer” within the
  meaning of Section 546 of the Bankruptcy Code, and (B) that
  Deutsche is entitled to the protections afforded by, among other sections,
  Section 362(b)(6), 362(b)(17), 362(b)(27), 362(o), 546(e), 546(g),
  546(j), 548(d)(2), 555, 560 and 561 of the Bankruptcy Code.

  
	
   

  	
   

  
	
   

  	
  Alternative Calculations and Counterparty Payment on Early Termination
  and on Certain Extraordinary Events. If Counterparty
  owes Deutsche any amount in connection with the Transaction pursuant to
  Sections 12.2, 12.3, 12.6, 12.7 or 12.9 of the Equity Definitions (except in
  the case of an Extraordinary Event in which the consideration or proceeds to
  be paid to holders of Shares as a result of such event consists solely of
  cash) or pursuant to Section 6(d)(ii) of the Agreement (except in
  the case of an Event of Default in which Counterparty is the Defaulting Party
  or a Termination Event in which Counterparty is the Affected Party, other
  than (x) an Event of Default of the type described in
  Section 5(a)(iii), (v), (vi) or (vii) of the Agreement or
  (y) a Termination Event of the type described in Section 5(b)(i),
  (ii), (iii), (iv), (v) or (vi) of the Agreement that in the case of
  either (x) or (y) resulted from an event or events outside
  Counterparty’s control) (a “Counterparty Payment
  Obligation”), Counterparty shall have the right, in its sole
  discretion, to satisfy any such Counterparty Payment Obligation by delivery
  of Termination Delivery Units (as defined below) by giving irrevocable
  telephonic notice to Deutsche, confirmed in writing within one Scheduled
  Trading Day, between the hours of 9:00 a.m. and 4:00 p.m. New York
  time on the Early Termination Date or other date the transaction is
  terminated, as applicable (“Notice of Counterparty
  Termination Delivery”). Within a commercially reasonable period of
  time following receipt of a Notice of Counterparty Termination Delivery,
  Counterparty shall deliver to Deutsche a number of Termination Delivery Units
  having a cash value equal to the amount of such Counterparty Payment
  Obligation (such number of Termination Delivery Units to be delivered to be
  determined by the Calculation Agent as the number of whole Termination
  Delivery Units that could be sold over a commercially reasonable period of
  time to generate proceeds equal to the cash equivalent of such payment
  obligation). In addition, if, in the good faith reasonable judgment of
  Deutsche, for any reason, the Termination Delivery Units deliverable pursuant
  to this paragraph would not be immediately freely transferable by Deutsche
  under Rule 144 or any successor provision, then Deutsche may elect
  either to (x) accept delivery of such Termination Delivery Units
  notwithstanding any restriction on transfer or (y) require that such
  delivery take place pursuant to the provisions set forth opposite the caption
  “Registration/Private Placement Procedures”
  below. If the provisions set forth in this paragraph are applicable, the
  provisions of Sections 9.8, 9.9, 9.10, 9.11 (modified as described above) and
  9.12 of the Equity Definitions shall be applicable, except that all
  references to “Shares” shall be read as references to “Termination Delivery
  Units”.

  
	
   

  	
   

  
	
   

  	
  “Termination Delivery Unit” means
  (a) in the case of a Termination Event, an Event of Default or an
  Extraordinary Event (other than an Insolvency, Nationalization, Merger Event
  or Tender Offer), one Share or (b) in the case of an Insolvency,
  Nationalization, Merger Event or Tender Offer, a unit consisting of the
  number or amount of each type of property received by a holder of one Share
  (without consideration of any requirement to pay cash or other consideration
  in lieu of fractional amounts of any securities) in such Insolvency,
  Nationalization, Merger Event or Tender Offer. If a Termination Delivery Unit
  consists of property other than cash or New Shares and Counterparty provides
  irrevocable written notice to the Calculation Agent on or prior to the
  Closing Date that it elects to deliver cash, New Shares or a combination
  thereof (in such proportion as Counterparty designates) in lieu of such other
  property, the Calculation Agent shall replace such property with cash, New
  Shares or a combination thereof as components of a Termination Delivery Unit
  in such amounts, as determined by the Calculation Agent in its discretion by
  commercially reasonable means, as shall have a value equal to the value of
  the property so replaced. If such Insolvency, Nationalization, Merger Event
  or Tender Offer involves a choice of consideration to be received by holders,
  such holder shall be deemed to have elected to receive the maximum possible
  amount of cash.

  
	
   

  	
   

  
	
   

  	
  Registration/Private Placement Procedures.
  If, in the reasonable opinion of Deutsche, following any delivery of Shares
  or Termination Delivery Units to Deutsche hereunder, such Shares or
  Termination Delivery Units would be in the hands of Deutsche subject to any
  applicable restrictions with respect to any registration or 

  



 


11

















 


	
   

  	
  qualification requirement or prospectus delivery requirement for such
  Shares or Termination Delivery Units pursuant to any applicable federal or
  state securities law (including, without limitation, any such requirement
  arising under Section 5 of the Securities Act as a result of such Shares
  or Termination Delivery Units being “restricted securities”, as such term is
  defined in Rule 144) (such Shares or Termination Delivery Units, “Restricted Shares”), then delivery of such Restricted
  Shares shall be effected pursuant to either clause (i) or (ii) of
  Annex A hereto at the election of Counterparty, unless waived by Deutsche.
  Notwithstanding the foregoing, solely in respect of any Warrants exercised or
  deemed exercised on any Exercise Date, Counterparty shall elect, prior to the
  first Settlement Date for the first Exercise Date, a Private Placement
  Settlement (as defined in Annex A hereto) or Registration Settlement (as
  defined in Annex A hereto) for all deliveries of Restricted Shares for all
  such Exercise Dates which election shall be applicable to all Settlement
  Dates for such Warrants. If the Private Placement Settlement or the
  Registration Settlement shall not be effected as set forth in clauses
  (i) or (ii) of Annex A, as applicable, then failure to effect such
  Private Placement Settlement or such Registration Settlement shall constitute
  an Event of Default with respect to which Counterparty shall be the
  Defaulting Party.

  
	
   

  	
   

  
	
   

  	
  Share Deliveries. Counterparty acknowledges
  and agrees that, to the extent that Deutsche is not then an affiliate, as
  such term is used in Rule 144, of Counterparty and has not been such an
  affiliate of Counterparty for 90 days (it being understood that Deutsche shall
  not be considered such an affiliate of Counterparty solely by reason of its
  right to receive Shares pursuant to a Transaction hereunder), any Shares or
  Termination Delivery Units delivered hereunder at any time after one year
  from the Premium Payment Date shall be eligible for resale under
  Rule 144 or any successor provision, and Counterparty agrees to promptly
  remove, or cause the transfer agent for such Shares or Termination Delivery
  Units to remove, any legends referring to any restrictions on resale under
  the Securities Act from the certificates representing such Shares or
  Termination Delivery Units. Counterparty further agrees that with respect to
  any Shares or Termination Delivery Units delivered hereunder at any time
  after 6 months from the Premium Payment Date but prior to 1 year from the
  Premium Payment Date, to the extent that Counterparty then satisfies the
  current information requirement of Rule 144, Counterparty shall promptly
  remove, or cause the transfer agent for such Shares or Termination Delivery
  Units to remove, any legends referring to any such restrictions or
  requirements from the certificates representing such Share or Termination
  Delivery Units upon delivery by Deutsche to Counterparty or such transfer
  agent of any customary seller’s and broker’s representation letters in
  connection with resales of such Shares or Termination Delivery Units pursuant
  to Rule 144, without any further requirement for the delivery of any
  certificate, consent, agreement, opinion of counsel, notice or any other
  document, any transfer tax stamps or payment of any other amount or any other
  action by Deutsche. Counterparty further agrees and acknowledges that
  Deutsche shall run a holding period under Rule 144 with respect to the
  Warrants and/or any Shares or Termination Delivery Units delivered hereunder
  notwithstanding the existence of any other transaction or transactions
  between Counterparty and Deutsche relating to the Shares. Counterparty
  further agrees that Shares or Termination Delivery Units delivered hereunder
  prior to the date that is 6 months from the Premium Payment Date may be
  transferred by Deutsche to its affiliates in transactions exempt from
  registration under the Securities Act, and Counterparty shall effect such
  transfer without any further action by Deutsche. Notwithstanding anything to
  the contrary herein, Counterparty agrees that any delivery of Shares or
  Termination Delivery Units shall be effected by book-entry transfer through
  the facilities of the Clearance System if, at the time of such delivery, the
  certificates representing such Shares or Termination Delivery Units would not
  contain any restrictive legend as described above. Notwithstanding anything
  to the contrary herein, to the extent the provisions of Rule 144 or any
  successor rule are amended, or the applicable interpretation thereof by
  the Securities and Exchange Commission or any court changes after the Trade
  Date, the agreements of Counterparty herein shall be deemed modified to the
  extent necessary, in the opinion of outside counsel of Counterparty, to
  comply with Rule 144, including Rule 144(b) or any successor
  provision, as in effect at the time of delivery of the relevant Shares or
  Termination Delivery Units.

  
	
   

  	
   

  
	
   

  	
  No
  Material Non-Public Information.  On each day during the
  period beginning on the Trade Date and ending on the earlier of (a) the
  day on which Deutsche has informed Counterparty in writing that Deutsche has
  completed all purchases or sales of Shares or other transactions to hedge
  initially its exposure with respect to the Transaction and (b) the
  Effective Date, Counterparty represents and warrants to Deutsche that it is
  not aware of any material nonpublic information concerning itself or the
  Shares.

  
	
   

  	
   

  
	
   

  	
  Limit on Beneficial Ownership.
  Notwithstanding any other provisions hereof, Deutsche may not exercise any Warrant
  hereunder, Automatic Exercise shall not apply with respect thereto, and no
  delivery hereunder (including 

  



 


12

















 


	
   

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

  
	
   

  	
   

  
	
   

  	
  Repurchase Notices. Counterparty shall, on
  any day on which Counterparty effects any repurchase of Shares, give Deutsche
  a written notice of such repurchase (a “Repurchase Notice”)
  on such day if, following such repurchase, the Warrant Equity Percentage (as
  defined below) is greater by 1.0% or more than the Warrant Equity Percentage
  set forth in the immediately preceding Repurchase Notice (or, in the case of
  the first such Repurchase Notice, greater by 1.0% or more than the Warrant
  Equity Percentage as of the date hereof). The “Warrant Equity Percentage” as of any day is the fraction,
  expressed as a percentage, of (1) the numerator of which is the Number
  of Warrants, and (2) the denominator of which is the number of Shares
  outstanding on such day. Counterparty agrees to indemnify and hold harmless
  Deutsche and its affiliates and their respective officers, directors,
  employees, affiliates, advisors, agents and controlling person (each, an “Indemnified Person”) from and against any
  and all losses (including losses relating to Deutsche’s hedging activities as
  a consequence of becoming, or of the risk of becoming, an “insider” as
  defined under Section 16 of the Exchange Act, including without
  limitation, any forbearance from hedging activities or cessation of hedging
  activities and any losses in connection therewith with respect to this Transaction),
  claims, damages, judgments, liabilities and expense (including reasonable
  attorney’s fees), joint or several, which an Indemnified Person actually may
  become subject to, as a result of Counterparty’s failure to provide Deutsche
  with a Repurchase Notice on the day and in the manner specified herein, and
  to reimburse, upon written request, each of such Indemnified Persons for any
  reasonable legal or other expenses incurred in connection with investigating,
  preparing for, providing testimony or other evidence in connection with or
  defending any of the foregoing. Counterparty shall not be liable for any
  settlement of any proceeding effected without its written consent, but if
  settled with such consent or if there be a final judgment for the plaintiff,
  Counterparty agrees to indemnify any Indemnified Person from and against any
  loss or liability by reason of such settlement or judgment. Counterparty
  shall not, without the prior written consent of the Indemnified Person,
  effect any settlement of any pending or threatened proceeding in respect of
  which any Indemnified Person is or could have been a party and indemnity
  could have been sought hereunder by such Indemnified Person, unless such
  settlement includes an unconditional release of such Indemnified Person from
  all liability on claims that are the subject matter of such proceeding on
  terms reasonably satisfactory to such Indemnified Person. If the
  indemnification provided for in this paragraph is unavailable to an
  Indemnified Person or insufficient in respect of any losses, claims, damages
  or liabilities referred to therein, then Counterparty, in lieu of
  indemnifying such Indemnified Person thereunder, shall contribute to the
  amount paid or payable by such Indemnified Person as a result of such losses,
  claims, damages or liabilities. The remedies provided for in this paragraph
  are not exclusive and shall not limit any rights or remedies that may
  otherwise be available to any Indemnified Person at law or in equity. The
  indemnity and contribution agreements contained in this paragraph shall
  remain operative and in full force and effect regardless of the termination
  of the Transaction.

  
	
   

  	
   

  
	
   

  	
  Limitation On Delivery of Shares.
  Notwithstanding anything herein or in the Agreement to the contrary, in no
  event shall Counterparty be required to deliver Shares in connection with the
  Transaction in excess of 14,492,754 Shares (the “Maximum Delivery Amount”). Counterparty represents and
  warrants (which shall be deemed to be repeated on each day that the
  Transaction is outstanding) that the Maximum Delivery Amount is equal to or
  less than the number of authorized but unissued Shares of Counterparty that
  are not reserved for future issuance in connection with transactions in the
  Shares (other than the Transaction) on the date of the determination of the
  Maximum Delivery Amount (such Shares, the “Available
  Shares”). In the event Counterparty shall not have delivered the
  full number of Shares otherwise deliverable as a result of this paragraph
  (the resulting deficit, the “Deficit Shares”),
  Counterparty shall be continually obligated to deliver, from time to time
  until the full number 

  



 


13

















 


	
   

  	
  of Deficit Shares have been delivered pursuant to this paragraph,
  Shares when, and to the extent, that (i) Shares are repurchased,
  acquired or otherwise received by Counterparty or any of its subsidiaries
  after the Trade Date (whether or not in exchange for cash, fair value or any
  other consideration), (ii) authorized and unissued Shares reserved for
  issuance in respect of other transactions prior to such date which prior to
  the relevant date become no longer so reserved and (iii) Counterparty
  additionally authorizes any unissued Shares that are not reserved for other
  transactions. Counterparty shall immediately notify Deutsche of the
  occurrence of any of the foregoing events (including the number of Shares
  subject to clause (i), (ii) or (iii) and the corresponding number
  of Shares to be delivered) and promptly deliver such Shares thereafter.
  Notwithstanding the provisions of Section 5(a)(ii) of the
  Agreement, in the event of a failure by Counterparty to comply with the
  agreement set forth in this provision, there shall be no grace period for
  remedy of such failure.

  
	
   

  	
   

  
	
   

  	
  Additional Termination Event.  The occurrence of any of the following
  shall constitute an Additional Termination Event with respect to which (1) Counterparty
  shall be the sole Affected Party and (2) the Transaction shall be the
  sole Affected Transaction; provided
  that with respect to any Additional Termination Event, Deutsche may choose to
  treat part of the Transaction as the sole Affected Transaction, and, upon
  termination of the Affected Transaction, a Transaction with terms identical
  to those set forth herein except with a Number of Warrants equal to the
  unaffected number of Warrants shall be treated for all purposes as the
  Transaction, which shall remain in full force and effect:

  
	
   

  	
   

  
	
   

  	
  (i)                                     Deutsche reasonably determines that it is
  advisable to terminate a portion of the Transaction so that Deutsche’s
  related hedging activities will comply with applicable securities laws, rules or
  regulations;

  
	
   

  	
   

  
	
   

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

   

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

   

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

   

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

   

  (2) in which at least 90%
  of the consideration paid for the Shares (other than cash payments for
  fractional shares or pursuant to dissenters’ appraisal rights) consists of
  shares of common stock traded on the New 

  



 


14

















 


	
   

  	
  York Stock Exchange, The NASDAQ
  Global Market or The NASDAQ Global Select Market (or any of their respective
  successors) (or which will be so traded immediately following such
  transaction); or

   

  (3) which is effected
  solely to change Counterparty’s jurisdiction of incorporation and results in
  a reclassification, conversion or exchange of outstanding Shares solely into
  shares of common stock of the surviving person; or

   

  (v)                                 the holders of Counterparty’s capital stock
  approve any plan or proposal for liquidation or dissolution of Counterparty.

  
	
   

  	
   

  
	
   

  	
  Transfer or Assignment.  Notwithstanding any provision of the
  Agreement to the contrary, Deutsche may, subject to applicable law, freely
  transfer and assign all of its rights and obligations under the Transaction
  without the consent of Counterparty. 

   

  If, as determined in Deutsche’s sole discretion, (a) at any time
  (1) the Equity Percentage exceeds 8% or (2) Deutsche, Deutsche
  Group (as defined below) or any person whose ownership position would be
  aggregated with that of Deutsche or Deutsche Group (Deutsche, Deutsche Group
  or any such person, a “Deutsche Person”)
  under Section 203 of the Delaware General Corporation Law (the “DGCL Takeover Statute”) or other federal,
  state or local laws, regulations or regulatory orders applicable to ownership
  of Shares (excluding Section 13 of the Exchange Act and the
  rules promulgated thereunder, “Applicable Laws”),
  owns, beneficially owns, constructively owns, controls, holds the power to
  vote or otherwise meets a relevant definition of ownership, or could be
  reasonably viewed as meeting any of the foregoing, in excess of a number of
  Shares equal to (x) the number of Shares that would give rise to
  reporting, registration, filing or notification obligations or other
  requirements (including obtaining prior approval by a state or federal
  regulator) of a Deutsche Person under Applicable Laws (including, without
  limitation, “interested shareholder” or “acquiring Person” status under the
  DGCL Takeover Statute) and with respect to which such requirements have not
  been met or the relevant approval has not been received (this clause (2)(x),
  the “Ownership Trigger”) minus (y) 1% of the number of Shares outstanding on
  the date of determination (either such condition described in clause
  (1) or (2), an “Excess Ownership
  Position”), and (b) Deutsche is unable, after commercially
  reasonable efforts, to effect a transfer or assignment on pricing and terms
  and within a time period reasonably acceptable to it of all or a portion of
  this Transaction pursuant to the preceding paragraph such that an Excess
  Ownership Position no longer exists, Deutsche may designate any Scheduled
  Trading Day as an Early Termination Date with respect to a portion (the “Terminated Portion”) of this Transaction, such that an
  Excess Ownership Position no longer exists following such partial
  termination.  In the event that
  Deutsche so designates an Early Termination Date with respect to a portion of
  this Transaction, a payment shall be made pursuant to Section 6 of the
  Agreement as if (i) an Early Termination Date had been designated in
  respect of a Transaction having terms identical to this Transaction and a
  Number of Warrants equal to the Terminated Portion (allocated among the
  Components thereof in the discretion of Deutsche), (ii) Counterparty
  shall be the sole Affected Party with respect to such partial termination and
  (iii) such Transaction shall be the only Terminated Transaction (and,
  for the avoidance of doubt, the provisions set forth under the caption “Alternative Calculations and Counterparty Payment on
  Early Termination and on Certain Extraordinary Events” shall apply
  to any amount that is payable by Counterparty to Deutsche pursuant to this
  sentence).  The “Equity Percentage”
  as of any day is the fraction, expressed as a percentage, (A) the
  numerator of which is the number of Shares that Deutsche and any of its
  affiliates subject to aggregation with Deutsche for purposes of the
  “beneficial ownership” test under Section 13 of the Exchange Act and all
  persons who may form a “group” (within the meaning of
  Rule 13d-5(b)(1) under the Exchange Act) with Deutsche
  (collectively, “Deutsche Group”)
  “beneficially own” (within the meaning of Section 13 of the Exchange
  Act) without duplication on such day and (B) the denominator of which is
  the number of Shares outstanding on such day. 

   

  Notwithstanding any other provision in this Confirmation to the
  contrary requiring or allowing Deutsche to purchase, sell, receive or deliver
  any shares or other securities to or from Counterparty, Deutsche may
  designate any of its affiliates to purchase, sell, receive or deliver such
  shares or other securities and otherwise to perform Deutsche’s obligations in
  respect of the Transaction and any such designee may assume such
  obligations.  Deutsche shall be
  discharged of its obligations to Counterparty to the extent of any such
  performance.

  



 


15

















 


	
   

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

  
	
   

  	
   

  
	
   

  	
  Securities Act.  The securities represented
  hereby have not been registered under the Securities Act or under the
  securities laws of certain states. 
  These securities may not be offered, sold or otherwise transferred,
  pledged or hypothecated except as permitted under the Securities Act and
  applicable state securities laws pursuant to registration or an exemption
  therefrom.

  
	
   

  	
   

  
	
   

  	
  Waiver of Jury Trial.  EACH PARTY WAIVES, TO THE FULLEST EXTENT
  PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
  RESPECT OF ANY SUIT, ACTION OR PROCEEDING RELATING TO THE TRANSACTION.  EACH PARTY (I) CERTIFIES THAT NO
  REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED,
  EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF SUCH
  A SUIT, ACTION OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER AND
  (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HAVE BEEN INDUCED TO ENTER
  INTO THE TRANSACTION, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL
  WAIVERS AND CERTIFICATIONS PROVIDED HEREIN.

  
	
   

  	
   

  
	
   

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

  



 


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


 


(a) Counterparty


 


	
   

  	
  Cephalon, Inc.

  
	
   

  	
  41 Moores Road

  
	
   

  	
  Frazer, PA 19355

  
	
   

  	
  Attention:

  	
  Gerald J. Pappert

  
	
   

  	
  Fax:

  	
  (610) 738-6258

  



 


(b) Deutsche


 


	
   

  	
  Deutsche Bank AG,
  London Branch

  
	
   

  	
  c/o Deutsche Bank
  Securities Inc.

  
	
   

  	
  60 Wall Street

  
	
   

  	
  New York, NY 10005

  
	
   

  	
  Attention: Andrew
  Yaeger

  
	
   

  	
   

  	
   

  
	
   

  	
  Telephone:

  	
  (212) 250-2717

  
	
   

  	
  Email:

  	
  Andrew.Yaeger@db.com

  
	
   

  	
   

  	
   

  
	
   

  	
  with a copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
  Deutsche Bank AG,
  London Branch

  
	
   

  	
  c/o Deutsche Bank
  Securities Inc.

  
	
   

  	
  60 Wall Street

  
	
   

  	
  New York, New York
  10005

  
	
   

  	
  Attention: Lars
  Kestner

  
	
   

  	
   

  	
   

  
	
   

  	
  Telephone:

  	
  (212) 250-6043

  
	
   

  	
  Email:

  	
  Lars.Kestner@db.com

  



 


16

















 


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


 


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


 


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


 


 


Very truly yours,


 


DEUTSCHE BANK AG, LONDON BRANCH


 


 


	
  By:

  	
  _/s/ Lars Kestner

  	
   

  
	
   

  	
  Name: Lars Kestner

  
	
   

  	
  Title:   Managing Director

  
	
   

  	
   

  
	
  By:

  	
  _/s/ John Arnone

  	
   

  
	
   

  	
  Name: John Arnone

  
	
   

  	
  Title:   Managing Director

  



 


 


DEUTSCHE BANK SECURITIES INC.,


acting solely as Agent in connection with this Transaction


 


 


	
  By:

  	
  _/s/ Lars Kestner

  	
   

  
	
   

  	
  Name: Lars Kestner

  
	
   

  	
  Title:   Managing Director

  
	
   

  	
   

  
	
  By:

  	
  _/s/ John Arnone

  	
   

  
	
   

  	
  Name: John Arnone

  
	
   

  	
  Title:   Managing Director

  



 


 


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


 


CEPHALON,
INC.


 


	
  By:

  	
  _/s/  J. Kevin Buchi

  	
   

  
	
   

  	
  Name: J. Kevin Buch

  
	
   

  	
  Title:   Executive Vice President and Chief
  Financial Officer

  



 


17

















 


	
  Chairman of the Supervisory Board: Clemens Börsig Board of
  Managing Directors: Hermann-Josef Lamberti, Josef Ackermann, Dr. Hugo
  Banziger, Anthony Dilorio

  	
   

  	
  Deutsche Bank AG is
  regulated by the FSA for the conduct of designated investment business in the
  UK, is a member of the London Stock Exchange and is a limited liability
  company incorporated in the Federal Republic of Germany HRB No. 30 000
  District Court of Frankfurt am Main; Branch Registration No. in England and
  Wales BR000005, Registered address: Winchester House, 1 Great Winchester
  Street, London EC2N 2DB.