Exhibit 10.1

 



 

October 21, 2014

 

To:                                                                             Monster Worldwide, Inc.

622 Third Avenue, 39th Floor

New York, New York 10017

Attn: General Counsel

Telephone: (212) 351-7000

Facsimile: (212) 351-7097

 

From:                                                               Bank of America, N.A.

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

One Bryant Park

New York, NY 10036

Attn: Peter Tucker, Assistant General Counsel

Telephone:  646-855-5821

Facsimile:  646-822-5633

 

Re:                                                                             Additional Capped Call Transaction

(Transaction Reference Number: 148608954)

 

Ladies and Gentlemen:

 

The purpose of this communication (this “Confirmation”) is to set forth the terms and conditions of the above-referenced transaction entered into on the Trade Date specified below (the “Transaction”) between Bank of America, N.A. (“BofA”) and Monster Worldwide, Inc. (“Counterparty”).  This communication constitutes a “Confirmation” as referred to in the ISDA Master Agreement specified below.

 

1.              This Confirmation is subject to, and incorporates, the definitions and provisions of the 2006 ISDA Definitions (including the Annex thereto) (the “2006 Definitions”) and the definitions and provisions of the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”, and together with the 2006 Definitions, the “Definitions”), in each case as published by the International Swaps and Derivatives Association, Inc. (“ISDA”).  In the event of any inconsistency between the 2006 Definitions and the Equity Definitions, the Equity Definitions will govern.  Certain defined terms used herein have the meanings assigned to them in the Indenture to be dated as of October 22, 2014 between Counterparty and Wilmington Trust, National Association, as trustee (the “Indenture”) relating to the USD125,000,000 principal amount of 3.50% Convertible Senior Notes due 2019 (the “Base Convertible Securities”) together with any 3.50% Convertible Senior Notes due 2019 issued pursuant to the Initial Purchasers’ option under the Purchase Agreement (as defined below) (the “Optional Convertible Securities” and, together with the Base Convertible Securities, the “Convertible Securities”).  In the event of any inconsistency between the terms defined in the Indenture and this Confirmation, this Confirmation shall govern.  For the avoidance of doubt, references herein to sections of the Indenture are based on the draft of the Indenture most recently reviewed by the parties at the time of execution of this Confirmation. If any relevant sections of the Indenture are changed, added or renumbered following execution of this Confirmation but prior to the execution of the Indenture, the parties will amend this Confirmation in good faith to preserve the economic intent of the parties based on the draft of the Indenture so reviewed.  The parties further acknowledge that references to the Indenture herein are references to the Indenture as in effect on the date of its execution and if the Indenture is, or the Convertible Securities are, amended, supplemented or modified following their execution, any such amendment, supplement or modification (other than a Merger Supplemental Indenture (as defined below)) will be disregarded for purposes of this Confirmation (other than as provided in Section 8(a) below) unless the parties agree otherwise in writing.

 

This Confirmation evidences a complete and binding agreement between BofA and Counterparty as to the terms of the Transaction to which this Confirmation relates.  This Confirmation shall be subject to an agreement (the “Agreement”) in the form of the 2002 ISDA Master Agreement (the “ISDA Form”) as if BofA and Counterparty had executed an agreement in such form (without any Schedule but with the elections set forth in this Confirmation and the election that the “Cross Default” provisions of Section 5(a)(vi) of the Agreement shall apply to Counterparty with a Threshold Amount” of USD 25 million).  For the avoidance of doubt, the Transaction shall be the only transaction under

 











 

the Agreement.

 

All provisions contained in, or incorporated by reference to, the Agreement will govern this Confirmation except as expressly modified herein.  In the event of any inconsistency between this Confirmation and either the Definitions or the Agreement, this Confirmation shall govern.  For the avoidance of doubt, except to the extent of an express conflict, the application of any provision of this Confirmation, the Agreement or the Equity Definitions shall not be construed to exclude or limit the application of any other provision of this Confirmation, the Agreement or the Equity Definitions.

 

2.              The Transaction constitutes a Share Option Transaction for purposes of the Equity Definitions.  The terms of the particular Transaction to which this Confirmation relates are as follows:

 

General Terms:

 

	
Trade Date:
    	
 
    	
October 21,   2014
    
	
 
    	
 
    	
 
    
	
Effective Date:
    	
 
    	
The   closing date of the Convertible Securities issued pursuant to the Initial   Purchasers’ option under the Purchase Agreement (as defined below) exercised   on the date hereof.
    
	
 
    	
 
    	
 
    
	
Option Type:
    	
 
    	
Call
    
	
 
    	
 
    	
 
    
	
Seller:
    	
 
    	
BofA
    
	
 
    	
 
    	
 
    
	
Buyer:
    	
 
    	
Counterparty
    
	
 
    	
 
    	
 
    
	
Shares:
    	
 
    	
The   common stock of Counterparty, par value USD0.001 per share (Ticker Symbol:   “MWW”).
    
	
 
    	
 
    	
 
    
	
Number of Options:
    	
 
    	
The   number of Optional Convertible Securities in denominations of USD1,000   principal amount purchased by Merrill   Lynch, Pierce, Fenner & Smith Incorporated, as representative   of the Initial Purchasers (as defined in the Purchase Agreement), upon   exercise of their option pursuant to Section 2(b) of the Purchase   Agreement.
    
	
 
    	
 
    	
 
    
	
Number of Shares:
    	
 
    	
As   of any date, the product of the Number of Options and the Conversion Rate.
    
	
 
    	
 
    	
 
    
	
Conversion Rate:
    	
 
    	
As   of any date, the “Conversion Rate” (as defined in the Indenture) as of such   date but without regard to any adjustments to the “Conversion Rate” pursuant   to Section 14.03, Section 14.04(f) or   Section 14.04(h) of the Indenture.
    
	
 
    	
 
    	
 
    
	
Strike Price:
    	
 
    	
The   “Conversion Price” (as defined in the Indenture, but without regard to any   adjustments to the “Conversion Rate” (as defined in the Indenture) pursuant   to Section 14.03, Section 14.04(f) or 14.04(h) of the   Indenture).
    
	
 
    	
 
    	
 
    
	
Cap Price:
    	
 
    	
As   provided in Annex A to this Confirmation.
    
	
 
    	
 
    	
 
    
	
Premium:
    	
 
    	
As   provided in Annex A to this Confirmation.
    
	
 
    	
 
    	
 
    
	
Premium Payment Date:
    	
 
    	
The   Effective Date
    
	
 
    	
 
    	
 
    
	
Exchange:
    	
 
    	
The   New York Stock Exchange
    
	
 
    	
 
    	
 
    
	
Related Exchange:
    	
 
    	
All   Exchanges
    
	
 
    	
 
    	
 
    
	
Procedures   for Exercise:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Exercise Dates:
    	
 
    	
Each   Conversion Date.
    
	
 
    	
 
    	
 
    
	
Conversion Date:
    	
 
    	
Each   “Conversion Date”, as defined in the Indenture, occurring
    


 

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during   the period from and excluding the Trade Date to and including the Expiration   Date, for Convertible Securities, each in denominations of USD1,000 principal   amount, that are submitted for conversion on such Conversion Date in   accordance with the terms of the Indenture (excluding Convertible Securities   (i) that are Excluded Convertible Securities or (ii)(A) with   respect to which Counterparty has elected the “Exchange in Lieu of   Conversion” option pursuant to Section 14.12 of the Indenture and   (B) that have been accepted by the designated financial institution   pursuant to Section 14.12 of the Indenture) but are not “Relevant   Convertible Securities” under, and as defined in, the confirmation between   the parties hereto regarding the Base Convertible Capped Call Transaction   dated October 16, 2014 (Transaction Ref. No. 148597325) (the “Base Convertible   Capped Call Transaction Confirmation”) (such Convertible Securities, the   “Relevant Convertible Securities” for   such Conversion Date). For the purposes of determining whether any   Convertible Securities will be Relevant Convertible Securities hereunder or   under the Base Convertible Capped Call Transaction Confirmation, Convertible   Securities that are converted pursuant to the Indenture shall be allocated   first to the Base Convertible Capped Call Transaction Confirmation until all   Options thereunder are exercised or terminated.
    
	
 
    	
 
    	
 
    
	
Required Exercise on
    	
 
    	
 
    
	
Conversion Dates:
    	
 
    	
On   each Conversion Date, a number of Options equal to the number of Relevant   Convertible Securities for such Conversion Date in denominations of USD1,000   principal amount shall be automatically exercised.
    
	
 
    	
 
    	
 
    
	
Excluded Convertible Securities:
    	
 
    	
Convertible   Securities surrendered for conversion on any date prior to January 15,   2019 that are not “Excluded Convertible Securities” under, and as defined in,   the Base Convertible Capped Call Transaction Confirmation. For purposes of   determining whether any Convertible Securities will be Excluded Convertible   Securities hereunder or under the Base Convertible Capped Call Transaction   Confirmation, Convertible Securities that are converted prior to such date   shall be allocated first to the Base Convertible Capped Call Transaction   Confirmation until all Options thereunder are exercised or terminated.
    
	
 
    	
 
    	
 
    
	
Expiration Date:
    	
 
    	
The   second “Scheduled Trading Day” immediately preceding the “Maturity Date”   (each as defined in the Indenture).
    
	
 
    	
 
    	
 
    
	
Automatic Exercise:
    	
 
    	
As   provided above under “Required Exercise on Conversion Dates”.
    
	
 
    	
 
    	
 
    
	
Exercise Notice Deadline:
    	
 
    	
The   second Exchange Business Day immediately preceding the “Maturity Date” (as defined   in the Indenture).
    
	
 
    	
 
    	
 
    
	
Notice of Exercise:
    	
 
    	
Notwithstanding   anything to the contrary in the Equity Definitions, BofA shall have no   obligation to make any payment or delivery in respect of any exercise of   Options hereunder unless Counterparty notifies BofA in writing prior to 5:00   PM, New York City time, on the Exercise Notice Deadline in respect of the   aggregate number of Options being exercised hereunder; provided that   any “Notice of Exercise” delivered to BofA pursuant to the Base Convertible   Capped Call Transaction Confirmation shall deemed to be a Notice of Exercise   pursuant to this Confirmation and the terms of such
    


 

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Notice   of Exercise shall apply, mutatis mutandis,   to this Confirmation. Counterparty acknowledges its responsibilities under   applicable securities laws, and in particular Section 9 and   Section 10(b) of the Exchange Act (as defined below) and the   rules and regulations thereunder, in respect of any election of a   settlement method with respect to the Convertible Securities. For the   avoidance of doubt, if Counterparty fails to give such notice when due in   respect of any exercise of Options hereunder, BofA’s obligation to make any   payment or delivery in respect of such exercise shall be permanently   extinguished, and late notice shall not cure such failure; provided that notwithstanding the foregoing, such notice   (and the related exercise of Options) in connection with any conversion of   Relevant Convertible Securities prior to the period starting on and including   January 15, 2019 and ending on and including the second “Scheduled   Trading Day” immediately preceding the “Maturity Date” (each as defined in   the Indenture) (the “Final Conversion Period”)   shall be effective if given after the Exercise Notice Deadline, but prior to   5:00 PM New York City time, on the fifth Exchange Business Day following the   Exercise Notice Deadline, in which event the Calculation Agent shall have the   right to adjust the Delivery Obligation as appropriate to reflect the   additional costs (including, but not limited to, hedging mismatches and   market losses) and expenses incurred by BofA in connection with its hedging   activities (including the unwinding of any hedge position) as a result of   BofA not having received such notice on or prior to the Exercise Notice   Deadline.
    
	
 
    	
 
    	
 
    
	
Notice of Convertible Security
    	
 
    	
 
    
	
Settlement Method:
    	
 
    	
Counterparty   shall notify BofA in writing before 5:00 P.M. (New York City time) on   January 15, 2019 (the “Final   Settlement Method Election Date”) of the irrevocable election by   the Counterparty, in accordance with Section 14.02(a)(iii) of the   Indenture, of the settlement method and, if applicable, the “Specified Dollar   Amount” (as defined in the Indenture) applicable to Relevant Convertible   Securities with a Conversion Date occurring on or after the Final Settlement   Method Election Date. If Counterparty fails timely to provide such notice,   Counterparty shall be deemed to have notified BofA of combination settlement   with a “Specified Dollar Amount” (as defined in the Indenture) of USD1,000   for all conversions occurring on or after the Final Settlement Method   Election Date. Counterparty agrees that it shall settle any Relevant   Convertible Securities with a Conversion Date on or after the Final Settlement   Method Election Date in the same manner as provided in the Notice of   Convertible Security Settlement Method it provides or is deemed to have   provided hereunder.
    
	
 
    	
 
    	
 
    
	
BofA’s Telephone Number and Telex and/or Facsimile Number and Contact   Details for purpose of Giving Notice:
    	
 
    	
To   be provided by BofA.
    
	
 
    	
 
    	
 
    
	
Settlement   Terms:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Settlement Date:
    	
 
    	
In   respect of an Exercise Date occurring on a Conversion Date, the settlement   date for the cash and/or Shares (if any) to be delivered in respect of the   Relevant Convertible Securities converted on such Conversion Date pursuant to   Section 14.02(a)(iv) of the Indenture;
    


 

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provided that the Settlement Date   will not be prior to the Exchange Business Day immediately following the date   Counterparty provides the Notice of Delivery Obligation prior to   5:00 PM, New York City time.
    
	
 
    	
 
    	
 
    
	
Delivery Obligation:
    	
 
    	
In   lieu of the obligations set forth in Sections 8.1 and 9.1 of the Equity   Definitions, and subject to “Notice of Exercise” above, in respect of an   Exercise Date occurring on a Conversion Date, BofA will deliver to   Counterparty, on the related Settlement Date, a number of Shares and/or   amount of cash in USD equal to the aggregate number of Shares, if any, that   Counterparty would be obligated to deliver to the holder(s) of the   Relevant Convertible Securities converted on such Conversion Date pursuant to   Section 14.02(a)(iv) of the Indenture and/or the aggregate amount   of cash, if any, in excess of USD1,000 per Convertible Security (in   denominations of USD1,000) that Counterparty would be obligated to deliver to   holder(s) pursuant to Section 14.02(a)(iv) of the Indenture   (except that such aggregate number of Shares shall be determined without   taking into consideration any rounding pursuant to   Section 14.04(j) of the Indenture and shall be rounded down to the   nearest whole number) and cash in lieu of fractional Shares, if any,   resulting from such rounding, if Counterparty had elected to satisfy its   conversion obligation in respect of such Relevant Convertible Securities by   the Convertible Security Settlement Method, as determined by the Calculation   Agent by reference to such Sections of the Indenture, notwithstanding any   different actual election by Counterparty with respect to the settlement of   such Convertible Securities (the “Convertible   Obligation”); provided   that (i) if the Convertible Obligation exceeds the Capped Convertible   Obligation, then the Delivery Obligation shall be the Capped Convertible   Obligation; (ii) the Convertible Obligation (and, for the avoidance of   doubt, the Capped Convertible Obligation) shall be determined   (A) excluding any Shares and/or cash that Counterparty is obligated to   deliver to holder(s) of the Relevant Convertible Securities as a result   of any adjustments to the Conversion Rate pursuant to Section 14.03,   Section 14.04(f) or Section 14.04(h) of the Indenture and   (B) without regard to the election, if any, by Counterparty to adjust   the Conversion Rate (and, for the avoidance of doubt, the Delivery Obligation   shall not include any interest payment on the Relevant Convertible Securities   that the Counterparty is (or would have been) obligated to deliver to   holder(s) of the Relevant Convertible Securities for such Conversion   Date); and (iii) if such exercise relates to the conversion of Relevant   Convertible Securities in connection with which holders thereof are entitled   to receive additional Shares and/or cash pursuant to the adjustment to the   Conversion Rate set forth in Section 14.03 of the Indenture, then,   notwithstanding the foregoing, the Delivery Obligation shall include such   additional Shares and/or cash (as determined by the Calculation Agent by   reference to such Section of the Indenture), except that the Delivery   Obligation shall be capped so that the value of the Delivery Obligation per   Option (with the value of any Shares included in the Delivery Obligation   determined by the Calculation Agent using the VWAP Price on the last day of   the relevant “Observation Period”, as defined in the Indenture (as modified   by the provision set forth opposite the caption
    


 

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“Convertible   Security Settlement Method”)) does not exceed the amount as determined by the   Calculation Agent that would be payable by BofA pursuant to Section 6 of   the Agreement if such Conversion Date were an Early Termination Date   resulting from an Additional Termination Event with respect to which the   Transaction (except that, for purposes of determining such amount   (x) the Number of Options shall be deemed to be equal to the number of   Options exercised on such Exercise Date and (y) such amount payable will   be determined as if Section 14.03 of the Indenture were deleted) was the   sole Affected Transaction and Counterparty was the sole Affected Party   (determined without regard to Section 8(b) of this Confirmation),   it being understood that the cap described in this clause (iii) is in   addition to, and cumulative with, clauses (i) and (ii) of this proviso. Notwithstanding the foregoing,   and in addition to the caps described in clauses (i), (ii) and   (iii) of the proviso   above, in all events the Delivery Obligation shall be capped so that the   value of the Delivery Obligation does not exceed the value of the Convertible   Obligation (with the Convertible Obligation determined based on the actual   settlement method elected by Counterparty with respect to such Relevant   Convertible Securities instead of the Convertible Security Settlement Method   and with the value of any Shares included in either the Delivery Obligation   or such Convertible Obligation determined by the Calculation Agent using the   VWAP Price on the last day of the relevant “Observation Period”, as defined   in the Indenture (as modified by the provision set forth opposite the caption   “Convertible Security Settlement Method”)).
    
	
 
    	
 
    	
 
    
	
Capped Convertible Obligation:
    	
 
    	
In   respect of an Exercise Date occurring on a Conversion Date, the Convertible   Obligation that would apply if the “Daily VWAP” for each “VWAP Trading Day”   in the “Observation Period” (each as defined in the Indenture) or, if   applicable, the assumed “Observation Period” specified in clause (ii) of   “Convertible Security Settlement Method” below, were the lesser of   (x) the Cap Price and (y) the actual “Daily VWAP” for such “VWAP   Trading Day” (each as defined in the Indenture).
    
	
 
    	
 
    	
 
    
	
Convertible Security Settlement Method:
    	
 
    	
For   any Relevant Convertible Securities, if Counterparty has notified BofA in the   related Notice of Exercise (or in the Notice of Convertible Security   Settlement Method, as the case may be) that it has elected to satisfy its   conversion obligation in respect of such Relevant Convertible Securities in   cash or in a combination of cash and Shares in accordance with   Section 14.02(a)(iii) of the Indenture (a “Cash Election”) with a “Specified Dollar   Amount” (as defined in the Indenture) of at least USD1,000, the Convertible   Security Settlement Method shall be the settlement method actually so elected   by Counterparty in respect of such Relevant Convertible Securities; otherwise,   the Convertible Security Settlement Method shall (i) assume Counterparty   made a Cash Election with respect to such Relevant Convertible Securities   with a “Specified Dollar Amount” (as defined in the Indenture) of USD1,000   per Relevant Convertible Security and (ii) the Delivery Obligation shall   be calculated as if the relevant “Observation Period” (as defined in the   Indenture) pursuant to Section 1.01 and   Section 14.02(a)(iv) of the Indenture consisted of 160 VWAP Trading   Days commencing on the 162nd “Scheduled Trading Day”
    


 

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prior   to the “Maturity Date” (each as defined in the Indenture).
    
	
 
    	
 
    	
 
    
	
Notice of Delivery Obligation:
    	
 
    	
No   later than the Exchange Business Day immediately following the last day of   the relevant “Observation Period,” as defined in the Indenture, (as modified   by the “Convertible Security Settlement Method” provision set forth above)   Counterparty shall give BofA notice of the final number of Shares and/or cash   comprising the Convertible Obligation; provided that, with respect to any   Exercise Date occurring during the Final Conversion Period, Counterparty may   provide BofA with a single notice of an aggregate number of Shares and/or   cash comprising the Convertible Obligations for all Relevant Convertible   Securities (it being understood, for the avoidance of doubt, that the   requirement of Counterparty to deliver such notice shall not limit   Counterparty’s obligations with respect to Notice of Exercise or Notice of   Convertible Security Settlement Method or BofA’s obligations with respect to   Delivery Obligation, each as set forth above, in any way).
    
	
 
    	
 
    	
 
    
	
Other Applicable Provisions:
    	
 
    	
To   the extent BofA is obligated to deliver Shares hereunder, the provisions of   Sections 9.1(c), 9.8, 9.9 and 9.11 (except that the Representation and   Agreement contained in Section 9.11 of the Equity Definitions shall be   modified by excluding any representations therein relating to restrictions,   obligations, limitations or requirements under applicable securities laws arising   as a result of the fact that Counterparty is the Issuer of the Shares) of the   Equity Definitions will be applicable as if “Physical Settlement” applied to   the Transaction.
    
	
 
    	
 
    	
 
    
	
Restricted Certificated Shares:
    	
 
    	
Notwithstanding   anything to the contrary in the Equity Definitions, BofA may, in whole or in   part, deliver Shares required to be delivered to Counterparty hereunder in   certificated form in lieu of delivery through the Clearance System. With   respect to such certificated Shares, the Representation and Agreement   contained in Section 9.11 of the Equity Definitions shall be modified by   deleting the remainder of the provision after the word “encumbrance” in the   fourth line thereof.
    
	
 
    	
 
    	
 
    
	
Share   Adjustments:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Method of Adjustment:
    	
 
    	
Notwithstanding   Section 11.2 of the Equity Definitions, upon the occurrence of any event   or condition set forth in Sections 14.04(a), (b), (c), (d), (e) or   Section 14.05 of the Indenture that the Calculation Agent determines   would result in an adjustment under the Indenture by reference to such   Sections thereof (any such event or condition, an “Adjustment Event”), the Calculation Agent shall make a   corresponding adjustment to the terms relevant to the exercise, settlement or   payment of the Transaction, subject to “Discretionary Adjustments” below.   Promptly following the occurrence of any Adjustment Event, Counterparty shall   notify the Calculation Agent of such Adjustment Event; and once the   adjustments to be made to the terms of the Indenture and the Convertible   Securities in respect of such Adjustment Event have been determined,   Counterparty shall promptly notify the Calculation Agent in writing of the   details of such adjustments.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
In   addition, the Calculation Agent may, to the extent the Calculation Agent   determines practicable in good faith and in its commercially reasonable   discretion, make a corresponding adjustment to the terms relevant to the   exercise, settlement or
    


 

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payment   of the Transaction (but without duplication of any adjustment pursuant to the   foregoing paragraph) upon the occurrence of any event or condition that the   Calculation Agent determines would result in an adjustment under   Section 14.05 of the Indenture in respect of the Convertible Security Settlement   Method; provided that the Calculation Agent   may limit or alter any such adjustment referenced in this sentence so that   the fair value of the Transaction to BofA is not reduced as a result of such   adjustment.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
For   the avoidance of doubt, BofA shall not have any payment or delivery   obligation hereunder in respect of, 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 the holders of Convertible Securities   (upon conversion or otherwise) or (y) any other transaction in which   holders of Convertible Securities are entitled to participate, in each case,   in lieu of an adjustment under the Indenture in respect of an Adjustment   Event (including, without limitation, under the fourth sentence of   Section 14.04(c) of the Indenture or the fourth sentence of   Section 14.04(d) of the Indenture).
    
	
 
    	
 
    	
 
    
	
Discretionary Adjustments:
    	
 
    	
Notwithstanding   anything to the contrary herein or in the Equity Definitions, if the Calculation   Agent in good faith disagrees with any adjustment under the Indenture 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 pursuant to Section 14.07 of the Indenture any supplemental   indenture entered into thereunder (a “Merger   Supplemental Indenture”) or in connection with any proportional   adjustment or the determination of the fair value of any securities,   property, rights or other assets), then the Calculation Agent will determine   the adjustment to be made to any one or more of the Strike Price, Number of   Options, Option Entitlement and any other variable relevant to the exercise,   settlement or payment of or under the Transaction in a commercially   reasonable manner.
    
	
 
    	
 
    	
 
    
	
Extraordinary   Events:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Merger Events:
    	
 
    	
Notwithstanding   Section 12.1(b) of the Equity Definitions, except for purposes of   “Announcement Event” and “Adjustments to Cap Price” below, a “Merger Event”   means the occurrence of any event or condition set forth in   Section 14.07(a) of the Indenture.
    
	
 
    	
 
    	
 
    
	
Consequences of Merger Events
    	
 
    	
 
    
	
and Tender Offer:
    	
 
    	
Notwithstanding   Sections 12.2 and 12.3 of the Equity Definitions, upon the occurrence of a   Merger Event that the Calculation Agent determines by reference to   Section 14.07(a) of the Indenture would result in an adjustment   under the Indenture, the Calculation Agent shall make a corresponding   adjustment to the terms relevant to the exercise, settlement or payment of   the Transaction, subject to “Discretionary Adjustments” above; provided that such adjustment shall be   made without regard to any adjustment to the Conversion Rate pursuant to   Section 14.03 or 14.04(h) of the Indenture and the election, if   any, by Counterparty to adjust the Conversion Rate; and provided further that the Calculation   Agent may limit or alter any such adjustment referenced in this paragraph so   that the fair value of the Transaction to BofA (taking into account a
    


 

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commercially   reasonable hedge position) is not adversely affected as a result of such   adjustment); and provided further that   if, with respect to a Merger Event, (A) 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 organized under the laws of the   United States, any State thereof or the District of Columbia, or (B) the   Counterparty to the Transaction following such Merger Event will not be a corporation   organized under the laws of the United States, any State thereof or the   District of Columbia or will not be the Issuer following such Merger Event,   in either case, BofA may elect in its commercially reasonable discretion that   Cancellation and Payment (Calculation Agent Determination) shall apply.
    
	
 
    	
 
    	
 
    
	
Announcement Event:
    	
 
    	
If   (x) an Announcement Date occurs in respect of a Merger Event or Tender   Offer or (y) a public announcement occurs in respect of any acquisition   by Counterparty or any of its subsidiaries where the aggregate consideration   exceeds 50% of the market capitalization of Counterparty as of the date of   such announcement (an “Acquisition   Transaction”) (the occurrence of any event described in clause   (x) or clause (y), an “Announcement   Event”), then on the earliest of the Exercise Date, Early   Termination Date or other date of cancellation (the “Announcement Event Adjustment Date”) in   respect of each Option, the Calculation Agent will determine the economic   effect on such Option of the relevant event (regardless of whether the   Announcement Event actually results in a Merger Event, a Tender Offer or an   Acquisition Transaction, and taking into account such factors as the   Calculation Agent may determine, including, without limitation, changes in volatility,   expected dividends, stock loan rate or liquidity relevant to the Shares or   the Transaction whether prior to or after the Announcement Event or for any   period of time, including, without limitation, the period from the   Announcement Event to the relevant Announcement Event Adjustment Date). If   the Calculation Agent determines that such economic effect on any Option is   material, then on the Announcement Event Adjustment Date for such Option, the   Calculation Agent may make such adjustment to the Cap Price as the   Calculation Agent determines appropriate to account for such economic effect,   which adjustment shall be effective immediately prior to the exercise,   termination or cancellation of such Option, as the case may be; provided that in no event shall the Cap   Price be less than the Strike Price.
    
	
 
    	
 
    	
 
    
	
Adjustments to Cap Price:
    	
 
    	
Upon   the occurrence of a Merger Date or Tender Offer Date, or the declaration by   Counterparty of the terms of any Potential Adjustment Event (as such terms   are defined in the Equity Definitions, as amended herein) or any Adjustment   Event, the Calculation Agent may, in its commercially reasonable discretion,   adjust the Cap Price as it determines appropriate to account for the effect   of the relevant Merger Event, Tender Offer, Potential Adjustment Event or   Adjustment Event; provided that   in no event shall the Cap Price be less than the Strike Price.
    
	
 
    	
 
    	
 
    
	
Notice of Merger Consideration:
    	
 
    	
Upon   the occurrence of a Merger Event that causes the Shares to be converted into   the right to receive more than a single type of consideration (determined   based in part upon any form of 
    


 

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stockholder   election), Counterparty shall reasonably promptly (but, in any event prior to   the effective time of such Merger Event) notify the Calculation Agent of   (i) the weighted average of the types and amounts of consideration   received by the holders of Shares entitled to receive cash, securities or   other property or assets with respect to or in exchange for such Shares in   any Merger Event who affirmatively make such an election or, if no holders of   Shares affirmatively make such an election, the types and amounts of   consideration actually received by holders of Shares and (ii) the   details of the adjustment made under the Indenture in respect of such Merger   Event.
    
	
 
    	
 
    	
 
    
	
Nationalization, Insolvency
    	
 
    	
 
    
	
or   Delisting:
    	
 
    	
Cancellation   and Payment (Calculation Agent Determination); provided that, in addition to the provisions of   Section 12.6(a)(iii) of the Equity Definitions, it shall also   constitute a Delisting if 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 thereafter be   deemed to be the Exchange.
    
	
 
    	
 
    	
 
    
	
Additional   Disruption Events:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
(a)  Change in Law:
    	
 
    	
Applicable;   provided that   Section 12.9(a)(ii) of the Equity Definitions is hereby amended by   (i) replacing the parenthetical after the word “regulation” in the   second line thereof with “(including, for the avoidance of doubt and without   limitation, any tax law or the adoption or promulgation of new regulations   authorized or mandated by existing statute)”; (ii) replacing the phrase   “the interpretation” in the third line thereof with the phrase “, or public   announcement of, the formal or informal interpretation”; (iii) adding   the words “or any Hedge Positions” after the word “Shares” in the clause   (X) 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) adding the words “, or holding,   acquiring or disposing of Shares or any Hedge Positions relating to,” after   the words “obligations under” in clause (Y) thereof.
    
	
 
    	
 
    	
 
    
	
(b)  Failure to Deliver: 
    	
 
    	
Applicable
    
	
 
    	
 
    	
 
    
	
(c)  Insolvency Filing: 
    	
 
    	
Applicable
    
	
 
    	
 
    	
 
    
	
(d)  Hedging Disruption: 
    	
 
    	
Applicable
    
	
 
    	
 
    	
 
    
	
(e)  Increased Cost of Hedging: 
    	
 
    	
Applicable,   provided that the Hedging Party   shall use commercially reasonable efforts to avoid an Increased Cost of   Hedging.
    
	
 
    	
 
    	
 
    
	
Hedging   Party:
    	
 
    	
For   all applicable Potential Adjustment Events and Extraordinary Events, BofA
    
	
 
    	
 
    	
 
    
	
Determining   Party:
    	
 
    	
For   all applicable Extraordinary Events, BofA, provided   that all calculations and adjustments by the Determining Party   shall be made in good faith and in a commercially reasonable manner.
    


 

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Non-Reliance:                                                                                                                                                                  Applicable

 

Agreements and Acknowledgments

Regarding Hedging Activities:                                                                                Applicable

 

Additional Acknowledgments:                                                                            Applicable

 

3.              Calculation Agent:                                                                                                                  BofA; provided that, following the occurrence of an Event of Default pursuant to Section 5(a)(vii) of the Agreement with respect to which BofA is the Defaulting Party, Counterparty shall have the right to designate a nationally recognized third-party dealer in over-the-counter corporate equity derivatives to act, during the period commencing on the date such Event of Default occurred and ending on the Early Termination Date with respect to such Event of Default, as the Calculation Agent.

 

All calculations and determinations by the Calculation Agent shall be made in good faith and in a commercially reasonable manner. Following any determination or calculation by the Calculation Agent hereunder, upon a written request by Counterparty, the Calculation Agent shall provide to Counterparty within a commercially reasonable period of time (but not later than five Exchange Business Days) following such request by e-mail to the e-mail address provided by Counterparty in such request a written explanation and report (in a commonly used file format for the storage and manipulation of financial data) displaying in commercially reasonable detail the basis for such determination or calculation (including any quotations, market data or information from internal or external sources, and any assumptions, used in making such determination or calculation); provided that the Calculation Agent shall not be required to disclose any proprietary or confidential models or other proprietary or confidential information.

 

4.              Account Details:

 

BofA Payment Instructions:                                                               To be provided by BofA

 

Counterparty Payment Instructions:                    To be provided by Counterparty.

 

5.              Offices:

 

The Office of BofA for the Transaction is: New York

 

The Office of Counterparty for the Transaction is: Not applicable

 

6.              Notices: For purposes of this Confirmation:

 

Address for notices or communications to Counterparty:

 

To:                                                                             Monster Worldwide, Inc.

622 Third Avenue

New York, New York 10017

Attn:                                                                    General Counsel

Telephone:                                   (212) 351-7000

Facsimile:                                         (212) 351-7097

 

Address for notices or communications to BofA:

 

To:                                                                             Bank of America, N.A.
 c/o Merrill Lynch, Pierce, Fenner & Smith Incorporated



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One Bryant Park 

New York, NY 10036

Attn:                                                                    Peter Tucker, Assistant General Counsel

Telephone:                                   646-855-5821

Facsimile:                                         646-822-5633

 

7.              Representations, Warranties and Agreements:

 

(a)         In addition to the representations and warranties in the Agreement and those contained elsewhere herein, Counterparty represents and warrants to and for the benefit of, and agrees with, BofA as follows:

 

(i)                       On the Trade Date, (A) Counterparty is not aware of any material nonpublic information regarding Counterparty or the Shares and (B) all reports and other documents filed by Counterparty with the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”) when considered as a whole (with the more recent such reports and documents deemed to amend inconsistent statements contained in any earlier such reports and documents), do not contain any untrue statement of a material fact or any omission of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading.

 

(ii)                    On the Trade Date, the Shares or securities that are convertible into, or exchangeable or exercisable for, Shares will not be subject to a “restricted period,” as such term is defined in Regulation M under the Exchange Act (“Regulation M”).

 

(iii)                 On the Trade Date, neither Counterparty nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“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 BofA.

 

(iv)                Without limiting the generality of Section 13.1 of the Equity Definitions, Counterparty acknowledges that BofA is not making any representations or warranties or taking any position or expressing any view with respect to the treatment of the Transaction under any accounting standards including ASC Topic 260, Earnings Per Share, ASC Topic 815, Derivatives and Hedging, or ASC Topic 480, Distinguishing Liabilities from Equity and ASC 815-40, Derivatives and Hedging — Contracts in Entity’s Own Equity (or any successor issue statements) or under FASB’s Liabilities & Equity Project.

 

(v)                   Reserved.

 

(vi)                Prior to the Trade Date, Counterparty shall deliver to BofA a resolution of Counterparty’s board of directors authorizing the Transaction and such other certificate or certificates as BofA shall reasonably request.

 

(vii)             Counterparty is not entering into this Confirmation to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for Shares) or otherwise in violation of the Exchange Act.

 

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

 

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(ix)                On each of the Trade Date and the Premium Payment Date, Counterparty is not, or will not be, “insolvent” (as such term is defined under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase the Shares hereunder in compliance with the laws of the jurisdiction of its incorporation.

 

(x)                   Reserved.

 

(xi)                The representations and warranties of Counterparty set forth in Section 3 of the Agreement and Section 1 of the Purchase Agreement dated as of October 16, 2014, between the Counterparty and Merrill Lynch, Pierce, Fenner & Smith Incorporated as representative of the Initial Purchasers party thereto (the “Purchase Agreement”) are true and correct and are hereby deemed to be repeated to BofA as if set forth herein.

 

(xii)             Counterparty understands no obligations of BofA to it hereunder will be entitled to the benefit of deposit insurance and that such obligations will not be guaranteed by any affiliate of BofA or any governmental agency.

 

(b)         Each of BofA and Counterparty agrees and represents that it is an “eligible contract participant” as defined in Section 1a(18) of the U.S. Commodity Exchange Act, as amended.

 

(c)          Each of BofA and Counterparty acknowledges that the offer and sale of the Transaction to it is intended to be exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”), by virtue of Section 4(a)(2) thereof.  Accordingly, Counterparty represents and warrants to BofA that (i) it has the financial ability to bear the economic risk of its investment in the Transaction and is able to bear a total loss of its investment, (ii) it is an “accredited investor” as that term is defined in Regulation D as promulgated under the Securities Act, (iii) it is entering into the Transaction for its own account and without a view to the distribution or resale thereof, and (iv) the assignment, transfer or other disposition of the Transaction has not been and will not be registered under the Securities Act and is restricted under this Confirmation, the Securities Act and state securities laws.

 

(d)         Counterparty agrees and acknowledges that BofA is and BofA represents and warrants to Counterparty that it is a “financial institution” and “financial participant”  within the meaning of Sections 101(22) and 101(22A) of the Bankruptcy Code.  The parties hereto further agree and acknowledge that it is the intent of the parties that (A) this Confirmation is a “securities contract,” as such term is defined in Section 741(7) of the Bankruptcy Code, with respect to which each payment and delivery hereunder or in connection herewith is a “termination value,” “payment amount” or “other transfer obligation” within the meaning of Section 362 of the Bankruptcy Code and a “settlement payment” within the meaning of Section 546 of the Bankruptcy Code, with respect to which each payment and delivery hereunder or in connection herewith is a “termination value,” “payment amount” or “other transfer obligation” within the meaning of Section 362 of the Bankruptcy Code and a “transfer,” as such term is defined in Section 101(54) of the Bankruptcy Code and a “payment or other transfer of property” within the meaning of Sections 362 and 546 of the Bankruptcy Code, and (B) each of Counterparty and BofA is entitled to the protections afforded by, among other sections, Sections 362(b)(6), 362(b)(27), 362(o), 546(e), 546(j), 548(d)(2), 555 and 561 of the Bankruptcy Code.

 

(e)          Counterparty shall deliver to BofA an opinion of counsel, dated as of the Effective Date and reasonably acceptable to BofA in form and substance, with respect to the matters set forth in Section 3(a) of the Agreement, Section 7(a)(viii) hereof and such other matters as BofA may reasonably request, subject to such qualifications and assumptions that are customary for legal opinions of this type.

 

8.              Other Provisions:

 

(a)         Additional Termination Events.  The occurrence of (i) an “Event of Default” with respect to Counterparty under the terms of the Convertible Securities as set forth in Section 6.01 of the Indenture, (ii) an Amendment Event or (iii) an Excluded Conversion Event shall be an Additional Termination Event with respect to which the Transaction is the sole Affected Transaction and Counterparty is the sole Affected Party, and BofA shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement;  

 

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provided that in the case of an Excluded Conversion Event the Transaction shall be subject to termination only in respect of a number of Options equal to the number of Convertible Securities that cease to be outstanding in connection with or as a result of such Excluded Conversion Event. For the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement in connection with an Excluded Conversion Event, the Calculation Agent shall assume that (x) the relevant Excluded Convertible Securities shall not have been converted and remain outstanding, and (y) in the case of an Induced Conversion, any adjustments, agreements, additional payments, deliveries or acquisitions by or on behalf of Counterparty or any affiliate of Counterparty in connection therewith had not occurred.

 

“Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Securities governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, redemption right of Counterparty, any term relating to conversion of the Convertible Securities (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Securities to amend, in each case without the consent of BofA.

 

“Excluded Conversion Event” means any conversion of any Excluded Convertible Securities.

 

“Induced Conversion” means a conversion of any Excluded Convertible Securities (A) in connection with (x) an adjustment to the Conversion Rate effected by Counterparty (whether pursuant to Section 14.04(h) of the Indenture or otherwise) that is not required under the terms of the Indenture or (y) an agreement by Counterparty with the holder(s) of such Convertible Securities whereby, in the case of either (x) or (y), the holder(s) of such Convertible Securities receive upon conversion or pursuant to such agreement, as the case may be, a payment of cash or delivery of Shares or any other property or item of value that was not required under the terms of the Indenture or (B) after having been acquired from a holder of Convertible Securities by or on behalf of Counterparty or any of its affiliates other than pursuant to a conversion by such Holder and thereafter converted by or on behalf of Counterparty or any affiliate of Counterparty.

 

(b)         Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events.  If BofA shall owe Counterparty any amount pursuant to “Consequences of Merger Events” above or Sections 12.6, 12.7 or 12.9 of the Equity Definitions or pursuant to Section 6(d)(ii) of the Agreement (a “Payment Obligation”), Counterparty shall have the right, in its sole discretion, to require BofA to satisfy any such Payment Obligation by the Share Termination Alternative (as defined below) by giving irrevocable telephonic notice to BofA, confirmed in writing within one Scheduled Trading Day, no later than 9:30 A.M. New York City time on the relevant merger date, Announcement Date, Early Termination Date or date of cancellation or termination in respect of an Extraordinary Event, as applicable (“Notice of Share Termination”); provided that if Counterparty does not elect to require BofA to satisfy its Payment Obligation by the Share Termination Alternative, BofA shall have the right, in its sole discretion, to elect to satisfy its Payment Obligation by the Share Termination Alternative, notwithstanding Counterparty’s failure to elect or election to the contrary; and provided further that Counterparty shall not have the right to so elect (but, for the avoidance of doubt, BofA shall have the right to so elect) in the event (i) of an Insolvency, a Nationalization or a Merger Event, in each case, in which the consideration or proceeds to be paid to holders of Shares consists solely of cash, (ii) of an Event of Default in which Counterparty is the Defaulting Party or a Termination Event in which Counterparty is the Affected Party or Extraordinary Event, which Event of Default, Termination Event or Extraordinary Event resulted from an event or events within Counterparty’s control or (iii) that Counterparty fails to remake the representation set forth in Section 7(a)(i) as of the date of such election.  Upon such Notice of Share Termination, the following provisions shall apply on the Scheduled Trading Day immediately following the relevant merger date, Announcement Date, Early Termination Date or date of cancellation or termination in respect of an Extraordinary Event, as applicable:

 

Share Termination Alternative:                        If applicable, means that BofA shall deliver to Counterparty the Share Termination Delivery Property on the date on which the Payment Obligation would otherwise be due pursuant to “Consequences of Merger Events and Tender Offer” above, Section 12.7 or 12.9 of the Equity Definitions or Section 6(d)(ii) of the Agreement, as applicable, or such later date or dates as the Calculation Agent may reasonably determine (the 

 

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“Share Termination Payment Date”), in satisfaction of the Payment Obligation.

 

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 the aggregate amount of a security therein with an amount of cash equal to the value of such fractional security based on the values used to calculate the Share Termination Unit Price.

 

Share Termination Unit Price:                                The value of property contained in one Share Termination Delivery Unit on the date such Share Termination Delivery Units are to be delivered as Share Termination Delivery Property, as determined by the Calculation Agent in its discretion by commercially reasonable means and notified by the Calculation Agent to BofA at the time of notification of the Payment Obligation.

 

Share Termination Delivery Unit:             In the case of a Termination Event, Event of Default, Delisting or Additional Disruption Event, one Share or, in the case of an Insolvency, Nationalization or Merger Event, one Share or a unit consisting of the number or amount of each type of property received by a holder of one Share (without consideration of any requirement to pay cash or other consideration in lieu of fractional amounts of any securities) in such Insolvency, Nationalization or Merger Event, as applicable.  If such Insolvency, Nationalization or Merger Event 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.

 

Failure to Deliver:                                                                                                Applicable

 

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

 

(c)          Disposition of Hedge Shares.  Counterparty hereby agrees that if, in the good faith reasonable judgment of BofA based on advice of counsel, any Shares (the “Hedge Shares”) acquired by BofA for the purpose of hedging its obligations pursuant to the Transaction cannot be sold in the public market by BofA without registration under the Securities Act, Counterparty shall, at its election: (i) in order to allow BofA to sell the Hedge Shares in a registered offering, make available to BofA an effective registration statement under the Securities Act to cover the resale of such Hedge Shares and (A) enter into an agreement, in form and substance satisfactory to BofA, substantially in the form of an underwriting agreement for a registered offering of similar size, (B) provide accountant’s “comfort” letters in customary form for registered offerings of equity securities of similar size, (C) provide disclosure opinions of nationally recognized outside counsel to Counterparty reasonably acceptable to BofA, (D) provide other customary opinions, certificates and closing documents customary in form for registered offerings of equity securities and (E) afford BofA a reasonable opportunity to conduct a “due diligence” investigation with respect to Counterparty customary in scope for underwritten offerings of equity securities of similar size; provided, however, that if BofA, 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 Section 8(c) shall apply at the election of Counterparty; (ii) in order to allow BofA to sell the Hedge Shares in a 

 

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private placement, enter into a private placement agreement substantially similar to private placement purchase agreements customary for private placements of equity securities of similar size, in form and substance reasonably satisfactory to BofA, including customary representations, covenants, blue sky and other governmental filings and/or registrations, indemnities to BofA, due diligence rights (for BofA or any designated buyer of the Hedge Shares from BofA), opinions and certificates and such other documentation as is customary for private placements agreements of similar size, all reasonably acceptable to BofA (in which case, the Calculation Agent shall make any adjustments to the terms of the Transaction that are necessary, in its reasonable judgment, to compensate BofA 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 BofA at the VWAP Price on such Exchange Business Days, and in the amounts, requested by BofA.  “VWAP Price” means, on any Exchange Business Day, the per Share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg Screen MWW <Equity> VAP (or any successor thereto) in respect of the period from 9:30 a.m. to 4:00 p.m. (New York City time) on such Exchange Business Day (or if such volume-weighted average price is unavailable or is manifestly incorrect, the market value of one Share on such Exchange Business Day, as determined by the Calculation Agent using a volume-weighted method).

 

(d)         Amendment to Equity Definitions.  The following amendments shall be made to the 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 “material” and adding the phrase “or options on the Shares” at the end of the sentence; and

 

(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 BofA’s option, the occurrence of any of the events specified in Section 5(a)(vii) (1) through (9) of the ISDA Master Agreement with respect to that Issuer.”

 

(e)          Repurchase and Conversion Rate Adjustment Notices.  Counterparty shall, at least 10 Scheduled Trading Days prior to effecting any repurchase of Shares or consummating or otherwise executing or engaging in any transaction or event (a “Conversion Rate Adjustment Event”) that would lead to an increase in the Conversion Rate (as such term is defined in the Indenture), give BofA a written notice of such repurchase or Conversion Rate Adjustment Event (a “Repurchase Notice”) if, following such repurchase or Conversion Rate Adjustment Event, the Notice Percentage as determined on the date of such Repurchase Notice is (i) greater than 26.5% and (ii) greater by 0.5% than the Notice Percentage included in the immediately preceding Repurchase Notice (or, in the case of the first such Repurchase Notice, greater by 0.5% than the Notice Percentage as of the date hereof), and, if such repurchase or Conversion Rate Adjustment Event, or the intention to effect the same, would constitute material non-public information with respect to Counterparty or the Shares, Counterparty shall make public disclosure thereof at or prior to delivery of such Repurchase Notice.  The “Notice Percentage” as of any day is the fraction, expressed as a percentage, the numerator of which is the Number of Shares plus the number of Shares underlying any other call options sold by BofA to Counterparty and the denominator of which is the number of Shares outstanding on such day.  In the event that Counterparty fails to provide BofA with a Repurchase Notice on the day and in the manner specified in this Section 8(e) then Counterparty agrees to indemnify and hold harmless BofA, its affiliates and their respective directors, officers, employees, agents and controlling persons (BofA and each such person being an “Indemnified Party”) from and against any and all losses, claims, damages and liabilities (or actions in respect thereof), joint or several, to which such Indemnified Party may become subject under applicable securities laws, including without limitation, Section 16 of the Exchange Act, relating to or arising out of such failure.  If for any reason the foregoing indemnification is unavailable to any Indemnified Party or insufficient to hold harmless any Indemnified Party, then Counterparty shall contribute, to the maximum extent permitted by law, to the amount paid or payable by the Indemnified Party as a result of such loss, claim, damage or liability.  In addition, Counterparty will reimburse any Indemnified Party for all expenses (including reasonable counsel fees and expenses) as they are incurred (after notice to Counterparty) in connection with the investigation of, preparation for or defense or settlement of any pending or threatened claim or any action, suit or proceeding arising therefrom, whether or not such Indemnified Party is a party thereto and whether or not such claim, action, suit or proceeding is initiated or brought by or on behalf of Counterparty.  This indemnity shall survive the 

 

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completion of the Transaction contemplated by this Confirmation and any assignment and delegation of the Transaction made pursuant to this Confirmation or the Agreement shall inure to the benefit of any permitted assignee of BofA.

 

(f)           Transfer and Assignment.  Either party may transfer any of its rights or obligations under the Transaction with the prior written consent of the non-transferring party, such consent not to be unreasonably withheld or delayed. For the avoidance of doubt, BofA may condition its consent on any of the following, without limitation: (i) the receipt by BofA of opinions and documents reasonably satisfactory to BofA in connection with such assignment, (ii) such assignment being effected on terms reasonably satisfactory to BofA with respect to any legal and regulatory requirements relevant to BofA, (iii) Counterparty continuing to be obligated to provide notices hereunder relating to the Convertible Securities and continuing to be obligated with respect to “Disposition of Hedge Shares” and “Repurchase Notices” above, (iv) payment by Counterparty of all reasonable costs and expenses, including reasonable counsel fees, incurred by BofA in connection with such assignment, (v) BofA not being obliged, as a result of such assignment, to pay the assignee on any payment date, an amount greater than BofA would have been required to pay in the absence of such assignment and (vi) no Event of Default, Potential Event of Default or Termination Event occurring as a result of such assignment.  In addition, BofA may transfer or assign without any consent of the Counterparty its rights and obligations hereunder and under the Agreement, in whole or in part, to (i) any of its affiliates, (ii) any entities sponsored or organized by, or on behalf of or for the benefit of BofA or (iii) any person of credit quality equivalent to BofA.  At any time at which any Excess Ownership Position or a Hedging Disruption exists, if BofA, in its discretion, is unable to effect a transfer or assignment to a third party in accordance with the requirements set forth above after using its commercially reasonable efforts on pricing terms and within a time period reasonably acceptable to BofA such that an Excess Ownership Position or a Hedging Disruption, as the case may be, no longer exists, BofA may designate any Scheduled Trading Day as an Early Termination Date with respect to a portion (the “Terminated Portion”) of the Transaction, such that such Excess Ownership Position or Hedging Disruption, as the case may be, no longer exists. In the event that BofA so designates an Early Termination Date with respect to a portion of the Transaction, a payment or delivery shall be made pursuant to Section 6 of the Agreement and Section 8(b) of this Confirmation as if (i) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Terminated Portion of the Transaction, (ii) Counterparty shall be the sole Affected Party with respect to such partial termination and (iii) such portion of the Transaction shall be the only Terminated Transaction. “Excess Ownership Position” means any of the following: (i) the Equity Percentage exceeds 9%, (ii) BofA or any “affiliate” or “associate” of BofA would own in excess of 14% of the outstanding Shares for purposes of Section 203 of the Delaware General Corporation Law or (iii) BofA, BofA Group (as defined below) or any person whose ownership position would be aggregated with that of BofA or BofA Group (BofA, BofA Group or any such person, a “BofA Person”) under any federal, state or local laws, regulations, regulatory orders 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 in excess of a number of Shares equal to (x) the number of Shares that would give rise to reporting or registration obligations or other requirements (including obtaining prior approval by a state or federal regulator) of a BofA Person, or could result in an adverse effect on a BofA Person, under Applicable Restrictions, as determined by BofA in its reasonable discretion, and with respect to which such requirements have not been met or the relevant approval has not been received or that would give rise to any consequences under the constitutive documents of Counterparty or any contract or agreement to which Counterparty is a party, in each case minus (y) 1% of the number of Shares outstanding on the date of determination.  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 BofA and any of its affiliates or any other person subject to aggregation with BofA, for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act, or any “group” (within the meaning of Section 13) of which BofA is or may be deemed to be a part (BofA and any such affiliates, persons and groups, collectively, “BofA Group”) beneficially owns (within the meaning of Section 13 of the Exchange Act), without duplication, on such day (or, to the extent that, as a result of a change in law, regulation or interpretation after the date hereof, the equivalent calculation under Section 16 of the Exchange Act and the rules and regulations thereunder results in a higher number, such number) and (B) the denominator of which is the number of Shares outstanding on such day.

 

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(g)          Staggered Settlement.  If, upon advice of counsel with regard to applicable legal and regulatory requirements, BofA reasonably determines that it would not be advisable to deliver, or to acquire Shares to deliver, any or all of the shares to be delivered by BofA on the relevant “Nominal Settlement Date”, BofA may, by written notice to Counterparty no less than three Exchange Business Days prior to any Settlement Date (a “Nominal Settlement Date”), elect to deliver the Shares on two or more dates (each, a “Staggered Settlement Date”) or at two or more times on the Nominal Settlement Date as follows:

 

(i)                                     in such notice, BofA will specify to Counterparty the related Staggered Settlement Dates (each of which will be on or prior to such Nominal Settlement Date, but not prior to the beginning of the related “Observation Period”, as defined in the Indenture (as modified by the provision set forth opposite the caption “Convertible Security Settlement Method”)) or delivery times and how it will allocate the Shares it is required to deliver under “Delivery Obligation” (above) among the Staggered Settlement Dates or delivery times; and

 

(ii)                                  the aggregate number of Shares that BofA will deliver to Counterparty hereunder on all such Staggered Settlement Dates and delivery times will equal the number of Shares that BofA would otherwise be required to deliver on such Nominal Settlement Date.

 

(h)         Right to Extend.  BofA, acting in a commercially reasonable manner, may postpone or add, in whole or in part, any Exercise Date or Settlement Date or any other date of valuation or delivery by BofA, with respect to some or all of the relevant Options (in which event the Calculation Agent shall make appropriate adjustments to the Delivery Obligation), if BofA determines, based on advice of counsel in the case of the immediately following clause (ii), that such extension or addition by BofA is reasonably necessary or appropriate (i) to preserve BofA’s commercially reasonable hedging or hedge unwind activity hereunder in light of existing liquidity conditions in the cash market, the stock loan market or any other relevant market or (ii) to enable BofA to effect purchases of Shares in connection with its hedging, hedge unwind or settlement activity hereunder in a manner that would, if BofA 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 BofA (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by BofA in good faith in relation to such requirements).

 

(i)             Adjustments.  For the avoidance of doubt, whenever the Calculation Agent is called upon to make an adjustment pursuant to the terms of this Confirmation or the Definitions to take into account the effect of an event, the Calculation Agent shall make such adjustment by reference to the effect of such event on the Hedging Party, assuming that the Hedging Party maintains a commercially reasonable hedge position.

 

(j)            Disclosure.  Effective from the date of commencement of discussions concerning the Transaction, Counterparty and each of its employees, representatives, or other agents may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all materials of any kind (including opinions or other tax analyses) that are provided to Counterparty relating to such tax treatment and tax structure.

 

(k)         Designation by BofA.  Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing BofA to purchase, sell, receive or deliver any Shares or other securities to or from Counterparty, BofA may designate any of its affiliates to purchase, sell, receive or deliver such shares or other securities and otherwise to perform BofA obligations in respect of the Transaction and any such designee may assume such obligations.  BofA shall be discharged of its obligations to Counterparty to the extent of any such performance in conformance with this Agreement; provided that BofA shall not be relieved hereby of any liability to the extent of any non-performance.

 

(l)             No Netting and Set-off.  Each party waives any and all rights it may have to set off obligations arising under the Agreement and the Transaction against other obligations between the parties, whether arising under any other agreement, applicable law or otherwise.

 

(m)     Equity Rights.  BofA acknowledges and agrees that this Confirmation is not intended to convey to it rights with respect to the Transaction that are senior to the claims of common stockholders in the event of 

 

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Counterparty’s bankruptcy.  For the avoidance of doubt, the parties agree that the preceding sentence shall not apply at any time other than during Counterparty’s bankruptcy to any claim arising as a result of a breach by Counterparty of any of its obligations under this Confirmation or the Agreement.  For the avoidance of doubt, the parties acknowledge that this Confirmation is not secured by any collateral that would otherwise secure the obligations of Counterparty herein under or pursuant to any other agreement.

 

(n)         Early Unwind.  In the event the sale by Counterparty of the Optional Convertible Securities is not consummated with the initial purchasers pursuant to the Purchase Agreement for any reason by the close of business in New York on October 22, 2014 (or such later date as agreed upon by the parties) (October 22, 2014 or such later date being 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 BofA and Counterparty thereunder shall be cancelled and terminated and (ii) only in the case where such Early Unwind occurred as a result of events within Counterparty’s control, Counterparty shall (x) pay to BofA an amount in cash equal to the aggregate amount of costs and expenses relating to the unwinding of BofA’s hedging activities in respect of the Transaction (including market losses incurred in reselling any Shares purchased by BofA or its affiliates in connection with such hedging activities) or (y) at the election of Counterparty, deliver to BofA Shares with a value equal to such amount, as commercially reasonably determined by the Calculation Agent, in which event the parties shall enter into customary and commercially reasonable documentation relating to the registered or exempt resale of such Shares; provided that, if Counterparty makes such election to deliver Shares, notwithstanding the foregoing, the number of Shares so delivered will not exceed a number of Shares equal to two multiplied by the Number of Shares (with such Number of Shares determined, for the avoidance of doubt, as if the relevant Convertible Securities had been issued).  Following such termination, cancellation and payment, each party shall be released and discharged by the other party from and agrees not to make any claim against the other party with respect to any obligations or liabilities of either party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date.  BofA and Counterparty represent and acknowledge to the other that upon an Early Unwind and following the payment referred to above, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

 

(o)         Wall Street Transparency and Accountability Act of 2010.  The parties hereby agree that none of (v) Section 739 of the Wall Street Transparency and Accountability Act of 2010 (“WSTAA”), (w) any similar legal certainty provision in any legislation enacted, or rule or regulation promulgated, on or after the Trade Date, (x) the enactment of WSTAA or any regulation under the WSTAA, (y) any requirement under WSTAA nor (z) an amendment made by WSTAA, shall limit or otherwise impair either party’s rights to terminate, renegotiate, modify, amend or supplement this Confirmation or the Agreement, as applicable, arising from a termination event, force majeure, illegality, increased costs, regulatory change or similar event under this Confirmation, the Equity Definitions incorporated herein, or the Agreement (including, but not limited to, rights arising from Change in Law, Hedging Disruption, Increased Cost of Hedging, an Excess Ownership Position or Illegality (as defined in the Agreement)).

 

(p)         Tax Matters

 

(i)                                     Withholding Tax imposed on payments to non-US counterparties under the United States Foreign Account Tax Compliance Act.  “Tax” and “Indemnifiable Tax”, each as defined in Section 14 of the Agreement, shall not include any U.S. federal withholding tax imposed or collected pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (a “FATCA Withholding Tax”). For the avoidance of doubt, a FATCA Withholding Tax is a Tax the deduction or withholding of which is required by applicable law for the purposes of Section 2(d) of the Agreement.

 

(ii)                                  HIRE Act.  “Tax” and “Indemnifiable Tax”, each as defined in Section 14 of the Agreement, shall not include any tax imposed on payments treated as dividends from sources within the United States under Section 871(m) of the Code or any regulations issued thereunder.

 

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(iii)                               Tax documentation. For the purpose of Section 4(a)(i) of the Agreement, Counterparty shall provide to BofA a valid U.S. Internal Revenue Service Form W-9, or any successor thereto, (i) on or before the date of execution of this Confirmation and (ii) promptly upon learning that any such tax form previously provided by Counterparty has become obsolete or incorrect.  Additionally, Counterparty shall, promptly upon request by BofA, provide such other tax forms and documents requested by BofA. BofA shall provide Counterparty, as applicable, (x) a valid U.S. Internal Revenue Service Form W-9 or W-8ECI or (y) (A) a valid Internal Revenue Service Form W-8IMY along with a withholding statement and (B) attached a valid Internal Revenue Service Form W-9 or Internal Revenue Service Form W-8ECI, or, in each case, any successor thereto, (i) on or before the date of execution of this Confirmation and (ii) promptly upon learning that any such tax form previously provided by BofA has become obsolete or incorrect. Additionally, BofA shall, promptly upon request by Counterparty, provide such other tax forms and documents as are reasonably requested by Counterparty.

 

(iv)                              Tax Representations.  For the purpose of Section 3(f) of the Agreement, Counterparty is a corporation for U.S. federal income tax purposes and is organized under the laws of the State of Delaware.  Counterparty is a “U.S. person” (as that term is used in section 1.1441-4(a)(3)(ii) of United States Treasury Regulations) for U.S. federal income tax purposes and an exempt recipient under Treasury Regulation Section 1.6049-4(c)(1)(ii).

 

(q)         Waiver of Trial by Jury.  EACH OF COUNTERPARTY AND BOFA HEREBY IRREVOCABLY WAIVES (ON ITS OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS STOCKHOLDERS) ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE TRANSACTION OR THE ACTIONS OF BOFA OR ITS AFFILIATES IN THE NEGOTIATION, PERFORMANCE OR ENFORCEMENT HEREOF.

 

(r)            Governing Law; Jurisdiction.  THIS CONFIRMATION AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS CONFIRMATION SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.  THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES COURT FOR THE SOUTHERN DISTRICT OF NEW YORK IN CONNECTION WITH ALL MATTERS RELATING HERETO AND WAIVE ANY OBJECTION TO THE LAYING OF VENUE IN, AND ANY CLAIM OF INCONVENIENT FORUM WITH RESPECT TO, THESE COURTS.

 

[Signature Page Follows]

 

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Counterparty hereby agrees (a) to check this Confirmation carefully and immediately upon receipt so that errors or discrepancies can be promptly identified and rectified and (b) to confirm that the foregoing (in the exact form provided by BofA) correctly sets forth the terms of the agreement between BofA and Counterparty with respect to the Transaction, by manually signing this Confirmation or this page hereof as evidence of agreement to such terms and providing the other information requested herein and immediately returning an executed copy to Peter Tucker via email: peter.tucker@bankofamerica.com.

 

	
 
    	
 
    	
Yours   faithfully,
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
BANK OF AMERICA, N.A.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
By:   
    	
/s/   Christopher A. Hutmaker
    
	
 
    	
 
    	
 
    	
Name:   Christopher A. Hutmaker
    
	
 
    	
 
    	
 
    	
Title:   Managing Director
    
	
 
    	
 
    	
 
    
	
Agreed   and Accepted By:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
MONSTER   WORLDWIDE, INC.
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By:   
    	
/s/   James M. Langrock
    	
 
    	
 
    
	
 
    	
Name:   James M. Langrock
    	
 
    	
 
    
	
 
    	
Title:   Executive Vice President and Chief Financial Officer
    	
 
    	
 
    


 

[Signature Page to Additional Capped Call Confirmation]

 











 

Annex A

 

Cap Price:             USD 7.0350

Premium:              USD 2,156,250.00 (Premium per Option USD 115.00).