EX-10.2



 Exhibit 10.2 

Execution Version 
 Morgan
Stanley & Co. International plc 
 c/o Morgan Stanley & Co. LLC 

1585 Broadway, 5th Floor 
 New York, NY 10036 

 

					
					May 28, 2015
			
	To:		Atlas Air Worldwide Holdings, Inc.		
			2000 Westchester Avenue		
			Purchase, New York 10577		
	Attention:		Spencer Schwartz, Executive Vice President and Chief Financial Officer
	Telephone:		(914) 701-8763		
	Facsimile:		(914) 701-8081		

  

	Re:	Base Warrants 

 The purpose of this letter agreement (this
“Confirmation”) is to confirm the terms and conditions of the Warrants issued by Atlas Air Worldwide Holdings, Inc. (“Company”) to Morgan Stanley & Co. International plc (“Dealer”) as of
the Trade Date specified below (the “Transaction”). This letter agreement constitutes a “Confirmation” as referred to in the ISDA Master Agreement specified below. This Confirmation shall replace any previous agreements
and serve as the final documentation for the Transaction. 
 The definitions and provisions contained in the 2002 ISDA Equity
Derivatives Definitions (the “Equity Definitions”), as published by the International Swaps and Derivatives Association, Inc. (“ISDA”), are incorporated into this Confirmation. In the event of any inconsistency
between the Equity Definitions and this Confirmation, this Confirmation shall govern.  
 Each party is hereby advised, and each such
party acknowledges, that the other party has engaged in, or refrained from engaging in, substantial financial transactions and has taken other material actions in reliance upon the parties’ entry into the Transaction to which this Confirmation
relates on the terms and conditions set forth below. 
 1. This Confirmation evidences a complete and binding agreement between Dealer and Company as to the
terms of the Transaction to which this Confirmation relates. This Confirmation shall supplement, form a part of, and be subject to an agreement in the form of the 2002 ISDA Master Agreement (the “Agreement”) as if Dealer and Company
had executed an agreement in such form (but without any Schedule except for the election of the laws of the State of New York as the governing law (without reference to choice of law doctrine)) on the Trade Date. In the event of any inconsistency
between provisions of the Agreement and this Confirmation, this Confirmation will prevail for the purpose of the Transaction to which this Confirmation relates. The parties hereby agree that no Transaction other than the Transaction to which this
Confirmation relates shall be governed by the Agreement. 
 2. The Transaction is a Warrant Transaction, which shall be considered 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:		May 28, 2015
		
	Effective Date:		The third Exchange Business Day immediately prior to the Premium Payment Date
		
	Warrants:		Equity call warrants, each giving the holder the right to purchase a number of Shares equal to the Warrant Entitlement at a price per Share equal to the Strike Price, subject to the terms set forth under the caption “Settlement
Terms” below. For the purposes of the Equity Definitions, each reference to a Warrant herein shall be deemed to be a reference to a Call Option.










			
	Warrant Style:		European
		
	Seller:		Company
		
	Buyer:		Dealer
		
	Shares:		The common stock of Company, par value USD 0.01 per Share (Exchange symbol “AAWW”)
		
	Number of Warrants:		945,252. For the avoidance of doubt, the Number of Warrants shall be reduced by any Warrants exercised or deemed exercised hereunder. In no event will the Number of Warrants be less than zero.
		
	Warrant Entitlement:		One Share per Warrant
		
	Strike Price:		USD 95.0130
		
			Notwithstanding anything to the contrary in the Agreement, this Confirmation or the Equity Definitions, in no event shall the Strike Price be subject to adjustment to the extent that, after giving effect to such adjustment, the
Strike Price would be less than USD 57.86, except for any adjustment pursuant to the terms of this Confirmation and the Equity Definitions in connection with stock splits or similar changes to Company’s capitalization.
		
	Premium:		USD 11,315,500
		
	Premium Payment Date:		June 3, 2015
		
	Exchange:		The NASDAQ Global Select Market
		
	Related Exchange(s):		All Exchanges


 Procedures for Exercise.  

 

			
		
	Expiration Time:		The Valuation Time
		
	Expiration Dates:		Each Scheduled Trading Day during the period from, and including, the First Expiration Date to, but excluding, the 140th Scheduled Trading Day following the First Expiration Date shall be an “Expiration Date” for a number
of Warrants equal to the Daily Number of Warrants on such date; provided that, notwithstanding anything to the contrary in the Equity Definitions, if any such date is a Disrupted Day, the Calculation Agent shall (i) make adjustments, if
applicable, to the Daily Number of Warrants or shall reduce such Daily Number of Warrants to zero for which such day shall be an Expiration Date and shall designate a Scheduled Trading Day or a number of Scheduled Trading Days as the Expiration
Date(s) for the remaining Daily Number of Warrants or a portion thereof for the originally scheduled Expiration Date and (ii) if the Daily Number of Warrants



  
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			for such Disrupted Day is not reduced to zero, determine the Settlement Price for such Disrupted Day based on transactions in the Shares on such Disrupted Day taking into account the nature and duration of such Market Disruption
Event on such day; and provided further that if such Expiration Date has not occurred pursuant to this clause as of the eighth Scheduled Trading Day following the last scheduled Expiration Date under the Transaction, the Calculation Agent
shall have the right to declare such Scheduled Trading Day to be the final Expiration Date and, in such case, the Calculation Agent shall determine its good faith estimate of the fair market value for the Shares as of the Valuation Time on that
eighth Scheduled Trading Day or on any subsequent Scheduled Trading Day, as the Calculation Agent shall determine using commercially reasonable means. Any Scheduled Trading Day on which, as of the date hereof, the Exchange is scheduled to close
prior to its normal close of trading shall be deemed not to be a Scheduled Trading Day; if a closure of the Exchange prior to its normal close of trading on any Scheduled Trading Day is scheduled following the date hereof, then such Scheduled
Trading Day shall be deemed to be a Disrupted Day in full.
		
	First Expiration Date:		September 1, 2022 (or if such day is not a Scheduled Trading Day, the next following Scheduled Trading Day), subject to “Market Disruption Event” below.
		
	Daily Number of Warrants:		For any Expiration Date, the Number of Warrants that have not expired or been exercised as of such day, divided by the remaining number of Expiration Dates (including such day), rounded down to the nearest whole number,
subject to adjustment pursuant to the provisos to “Expiration Dates”.
		
	Automatic Exercise:		Applicable; and means that for each Expiration Date, a number of Warrants equal to the Daily Number of Warrants for such Expiration Date will be deemed to be automatically exercised at the Expiration Time on such Expiration
Date.
		
	Market Disruption Event:		Section 6.3(a) of the Equity Definitions is hereby amended by replacing clauses (ii) and (iii) in their entirety with “(ii) an Exchange Disruption or (iii) an Early Closure, in each case, that the Calculation Agent determines
is material.”
		
			Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the words “Scheduled Closing Time” in the fourth line
thereof.


 Valuation Terms. 

 

			
		
	Valuation Time:		Scheduled Closing Time
		
	Valuation Date:		Each Exercise Date



  
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 Settlement Terms. 

 

			
	Settlement Method:		Net Share Settlement
		
	Net Share Settlement:		On the relevant Settlement Date, Company shall deliver to Dealer a number of Shares equal to the Share Delivery Quantity for such Settlement Date to the account specified herein free of payment through the Clearance System and
Company shall pay to Dealer any Fractional Share Amount. Dealer shall be treated as the holder of record of such Shares at the time of delivery of such Shares or, if earlier, at 5:00 p.m. (New York City time) on such Settlement Date.
		
	Share Delivery Quantity:		For any Settlement Date, a number of Shares, as calculated by the Calculation Agent, equal to the Net Share Settlement Amount for such Settlement Date, divided by the Settlement Price on the Valuation Date for such Settlement
Date, rounded down to the nearest whole number.
		
			Section 9.7 of the Equity Definitions is hereby amended by (i) replacing the words “Number of Shares to be Delivered” with the words “Share Delivery Quantity” in the second and third lines thereof and (ii)
deleting the parenthetical in clause (a) thereof.
		
	Net Share Settlement Amount:		For any Settlement Date, an amount equal to the product of (i) the number of Warrants exercised or deemed exercised on the relevant Exercise Date, (ii) the Strike Price Differential for the relevant Valuation Date and (iii) the
Warrant Entitlement. 
		
	Settlement Price:		For any Valuation Date, the per Share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page “AAWW <equity> AQR” (or any successor thereto) in respect of the period
from the scheduled opening time of the Exchange to the Valuation Time on such Valuation Date (or if such volume-weighted average price is unavailable or clearly erroneous, the market value of one Share on such Valuation Date, as determined by the
Calculation Agent). Notwithstanding the foregoing, if (i) any Expiration Date is a Disrupted Day and (ii) the Calculation Agent determines that such Expiration Date shall be an Expiration Date for fewer than the otherwise applicable Daily Number of
Warrants, as described above, then the Settlement Price for the relevant Valuation Date shall be the volume-weighted average price per Share on such Valuation Date on the Exchange, as determined by the Calculation Agent based on such sources as it
deems appropriate using a volume-weighted methodology, for the portion of such Valuation Date for which the Calculation Agent determines there is no Market Disruption Event.



  
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	Settlement Dates:		As determined pursuant to Section 9.4 of the Equity Definitions, subject to Section 9(k)(i) hereof.
		
	Other Applicable Provisions:		The provisions of Sections 9.1(c), 9.8, 9.9, 9.11 and 9.12 of the Equity Definitions will be applicable; except that all references in such provisions to “Physically-settled” shall be read as references to “Net Share
Settled.” “Net Share Settled” in relation to any Warrant means that Net Share Settlement is applicable to that Warrant.
		
	Representation and Agreement:		Notwithstanding Section 9.11 of the Equity Definitions, the parties acknowledge that any Shares delivered to Dealer may be, upon delivery, subject to restrictions and limitations arising from Company’s status as issuer of the
Shares under applicable securities laws.


  

	3.	Additional Terms applicable to the Transaction. 

 Adjustments
applicable to the Transaction: 
  

			
	Method of Adjustment:		Calculation Agent Adjustment; provided that the parties hereto agree that any (i) repurchases by or on behalf of the Company of Shares through a dealer pursuant to forward contracts, accelerated share
repurchase contracts or similar derivatives transactions that are entered into at prevailing market prices, volume-weighted average prices or discounts thereto and on customary terms for transactions of such type to repurchase Shares or (ii) open
market Share repurchases by or on behalf of the Company at prevailing market prices (clause (i) and clause (ii) together, “Share Repurchases”), for which the aggregate purchase price together with the aggregate purchase price for
all other Share Repurchases made in the immediately preceding twelve-month period, does not exceed 10% of the market capitalization of the Issuer (measured at the time of execution of such Share Repurchase) shall not be considered Potential
Adjustment Events. For the avoidance of doubt, in making any adjustments under the Equity Definitions, the Calculation Agent may make adjustments, if any, to any one or more of the Strike Price, the Number of Warrants, the Daily Number of Warrants,
the Warrant Entitlement. Notwithstanding the foregoing, any cash dividends or distributions on the Shares, whether or not extraordinary, shall be governed by Section 9(f) of this Confirmation in lieu of Article 10 or Section 11.2(c) of the Equity
Definitions.


 Extraordinary Events applicable to the Transaction: 

 

			
	New Shares:		Section 12.1(i) of the Equity Definitions is hereby amended (a) by deleting the text in clause (i) thereof in its entirety (including the word “and” following clause (i)) and replacing it with the phrase “publicly
quoted, traded or listed (or whose related depositary receipts are 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)”



  
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			and (b) by inserting immediately prior to the period the phrase “and (iii) of an entity or person that is a corporation organized under the laws of the United States, any State thereof or the District of Columbia that also
becomes Company under the Transaction following such Merger Event or Tender Offer”.



Consequence of Merger Events: 
  

			
	Merger Event:		Applicable; provided that if an event occurs that constitutes both a Merger Event under Section 12.1(b) of the Equity Definitions and an Additional Termination Event under Section 9(h)(ii)(B) of this Confirmation, the
provisions of Section 9(h)(ii)(B) will apply.
		
	      Share-for-Share:		Modified Calculation Agent Adjustment
		
	      Share-for-Other:		Cancellation and Payment (Calculation Agent Determination)
		
	      Share-for-Combined:		Cancellation and Payment (Calculation Agent Determination); provided that Dealer may elect, in good faith and in its commercially reasonable judgment, Component Adjustment (Calculation Agent Determination) for all or any
portion of the Transaction.


 Consequence of Tender Offers: 

 

			
	Tender Offer:		Applicable; provided that (x) the words “voting shares” in the fourth line of Section 12.1(d) of the Equity Definitions shall be replaced with the word “Shares” and (y) if an event occurs that constitutes
both a Tender Offer under Section 12.1(d) of the Equity Definitions and Additional Termination Event under Section 9(h)(ii)(A) of this Confirmation, Dealer may elect, in good faith and in its commercially reasonable judgment, whether the provisions
of Section 12.3 of the Equity Definitions or Section 9(h)(ii)(A) will apply.
		
	      Share-for-Share:		Modified Calculation Agent Adjustment
		
	      Share-for-Other:		Modified Calculation Agent Adjustment
		
	      Share-for-Combined:		Modified Calculation Agent Adjustment


  

			
	Consequences of Announcement Events:		Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions; provided that, in respect of an Announcement Event, (x) references to “Tender Offer” shall be replaced by
references to “Announcement Event” and references to “Tender Offer Date” shall be replaced by references to “date of such Announcement Event” and (y) for the avoidance of doubt, the Calculation Agent may determine
whether the relevant Announcement Event has had a material effect on the Transaction (and, if so, may adjust the terms of the Transaction accordingly) on one or more occasions on or after the date of the Announcement Event up to, and including, the
Expiration Date, any Early Termination 



  
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			Date and/or any other date of cancellation, it being understood that any adjustment in respect of an Announcement Event shall take into account any earlier adjustment relating to the same Announcement Event. An Announcement Event
shall be an “Extraordinary Event” for purposes of the Equity Definitions, to which Article 12 of the Equity Definitions is applicable.
		
	Announcement Event:		(i) The public announcement by any entity of (x) any transaction or event that, if completed, would constitute a Merger Event or Tender Offer or (y) the intention to enter into a Merger Event or Tender Offer, (ii) the public
announcement by Issuer of an intention to solicit or enter into, or to explore strategic alternatives or other similar undertaking that may include, a Merger Event or Tender Offer or (iii) any subsequent public announcement by any entity of a change
to a transaction or intention that is the subject of an announcement of the type described in clause (i) or (ii) of this sentence (including, without limitation, a new announcement, whether or not by the same party, relating to such a transaction or
intention or the announcement of a withdrawal from, or the abandonment or discontinuation of, such a transaction or intention), as determined by the Calculation Agent. For the avoidance of doubt, the occurrence of an Announcement Event with respect
to any transaction or intention shall not preclude the occurrence of a later Announcement Event with respect to such transaction or intention. For purposes of this definition of “Announcement Event,” the remainder of the definition of
“Merger Event” in Section 12.1(b) of the Equity Definitions following the definition of “Reverse Merger” therein shall be disregarded.
		
	Nationalization, Insolvency or Delisting:		Cancellation and Payment (Calculation Agent Determination); provided that, in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it will also constitute a Delisting if the Exchange is located in the
United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors); if the Shares are immediately
re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors), such exchange or quotation system shall thereafter be deemed to be the
Exchange.


 Additional Disruption Events: 

 

			
		
	Change in Law:		Applicable; provided that (i) Section 12.9(a)(ii) of the Equity Definitions is hereby amended by replacing the parenthetical beginning after the word “regulation” in the second line thereof with the words
“(including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations 



  
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			authorized or mandated by existing statute)”, (ii) Section 12.9(a)(ii)(X) of the Equity Definitions is hereby amended by replacing the word “Shares” with the phrase “Hedge Positions”, (iii) Section
12.9(a)(ii)(X) of the Equity Definitions is hereby amended by immediately following the word “Transaction”, adding the phrase “in the manner contemplated by the Hedging Party on the Trade Date” and (iv) Section 12.9(a)(ii)(Y) of
the Equity Definitions is hereby amended by replacing the parenthetical beginning after the word “Transaction” with the words “(including, without limitation, due to any increase in tax liability, decrease in tax benefit or other
adverse effect on its tax position, imposition or increase of amount of capital required by it or any entity controlling it, or imposition or increase of amount of collateral required or expected to be maintained)”.
		
	Failure to Deliver:		Not Applicable
		
	Insolvency Filing:		Applicable
		
	Hedging Disruption:		Applicable; provided that:
		
			 (i)     Section 12.9(a)(v) of the Equity Definitions is hereby amended by (a) inserting the following words at
the end of clause (A) thereof: “in the manner contemplated by the Hedging Party on the Trade Date” and (b) inserting the following language at the end of such Section:

		
			 “, provided that any such inability that occurs solely due to the deterioration of the creditworthiness of the Hedging Party shall not be deemed a
Hedging Disruption. For the avoidance of doubt, the term “equity price risk” shall be deemed to include, but shall not be limited to, stock price and volatility risk. And, for the further avoidance of doubt, any such transactions or assets
referred to in phrases (A) or (B) above must be available on commercially reasonable pricing terms.”; and

		
			 (ii)    Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line thereof,
after the words “to terminate the Transaction”, the words “or a portion of the Transaction affected by such Hedging Disruption”.

		
	Increased Cost of Hedging:		Applicable
		
	Loss of Stock Borrow:		Applicable
		
	      Maximum Stock Loan Rate:		100 basis points per annum
		
	Increased Cost of Stock Borrow:		Applicable
		
	      Initial Stock Loan Rate:		0 basis points until June 1, 2022 and 25 basis points thereafter.



  
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	 Hedging Party:
		For all applicable Additional Disruption Events, Dealer. The Hedging Party shall at all times act in good faith and in a commercially reasonable manner; provided that nothing herein shall limit or alter, or be deemed to limit
or alter, the ability of Dealer (whether acting as Dealer, the Hedging Party, the Determining Party or the Calculation Agent) to hedge its obligations under the Transaction in a manner it deems appropriate, as determined by Dealer in its sole
discretion. The parties agree that they will comply with the provisions set forth in the second paragraph under “Calculation Agent” below.
		
	Determining Party:		For all applicable Extraordinary Events, Dealer; provided, however, that all calculations, adjustments, specifications, choices and determinations by the Determining Party shall be made in good faith and in a
commercially reasonable manner. The parties agree that they will comply with the provisions set forth in the second paragraph under “Calculation Agent” below.
		
	Non-Reliance:		Applicable
		
	Agreements and Acknowledgments		
	Regarding Hedging Activities:		Applicable
		
	Additional Acknowledgments:		Applicable


  

			
	 4.        Calculation Agent.
		Dealer. All calculations, adjustments, specifications, choices and determinations by the Calculation Agent shall be made in good faith and in a commercially reasonable manner. The parties agree that they will comply with the
provisions set forth in the immediately following paragraph.
		
			In the case of any calculation, adjustment, specification, choice or determination by the Hedging Party, the Determining Party or the Calculation Agent, as the case may be, following any written request from Company, the Hedging
Party, the Determining Party or the Calculation Agent, as the case may be, shall promptly provide to Company a written explanation describing in reasonable detail the basis for such calculation, adjustment or determination (including any quotation,
market data or information from internal or external sources used in making such calculation, adjustment or determination), but without disclosing any proprietary models or other information that is subject to a non-disclosure agreement or
confidentiality agreement.


	5.	Account Details. 

  

	 	(a)	Account for payments to Company: 

  

							
			Bank:		JP Morgan Chase		
			ABA#:		021000021		
			Swift ID:		CHASUS33		
			Account Name:		Atlas Air Worldwide Holdings, Inc.		
			Account Number:		590362143		


  
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 Account for delivery of Shares from Company: 

To be provided by Company. 
  

	 	(b)	Account for payments to Dealer: 

  

							
			Bank:		Citibank, N.A.		
			SWIFT:		CITIUS33		
			Bank Routing:		021-000-089		
			Acct Name:		Morgan Stanley and Co.		
			Acct No.:		30632076		

 Account for delivery of Shares to Dealer: 

To be provided by Dealer. 
  

	6.	Offices. 

 (a) The Office of Company for the Transaction is: Inapplicable,
Company is not a Multibranch Party. 
 (b) The Office of Dealer for the Transaction is: New York 

 

	7.	Notices. 

  

	 	(a)	Address for notices or communications to Company: 

  

					
			To:		Atlas Air Worldwide Holdings, Inc.
					2000 Westchester Avenue
					Purchase, New York 10577
			Attention:		Spencer Schwartz, Executive Vice President and Chief Financial Officer
			Telephone:		(914) 701-8763
			Facsimile:		(914) 701-8081
		
			With a copy to:
		
			Ropes & Gray LLP
			Attention: Isabel Dische, Esq. and David Fine, Esq.
			Telephone No: (212) 596-9000
			Facsimile No: (212) 596-9090
			Email: isabel.dische@ropesgray.com & david.fine@ropesgray.com

  

	 	(b)	Address for notices or communications to Dealer: 

  

					
			To:		Morgan Stanley & Co. International plc
					c/o Morgan Stanley & Co. LLC
					1585 Broadway, 4th Floor
					New York, NY 10036
			Attention:		Arnaud Blanchard
			Telephone:		(212) 761-8464
			Facsimile:		(212) 404-9843
			Email:		Arnaud.Blanchard@morganstanley.com
		
			With a copy to:
			
					 Morgan Stanley & Co. International plc

c/o Morgan Stanley & Co. LLC
 1221 Avenue of the
Americas, 34th Floor

					
					

  
  

  
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					New York, NY 10020
			Attention:		Anthony Cicia
			Telephone:		(212) 762-4828
			Facsimile:		(212) 507-4338
			Email:		Anthony.Cicia@morganstanley.com

  

	8.	Representations, Warranties and Agreements of Company. 

  

	 	(a)	Company hereby represents and warrants to Dealer that each of the representations and warranties of Company set forth in Section 1 of the Underwriting Agreement (the “Underwriting Agreement”),
dated as of May 28, 2015, among Company and Morgan Stanley & Co. LLC and BNP Paribas Securities Corp., as managers for the Underwriters (the “Underwriters”) party thereto, is true and correct and is hereby deemed to be
repeated to Dealer as if set forth herein. Company hereby further represents and warrants to Dealer on the date hereof, and on and as of the Premium Payment Date, that: 


 

	 	(i)	Company has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; such execution, delivery and performance have been duly authorized by all necessary
corporate action on Company’s part; and this Confirmation has been duly and validly executed and delivered by Company and constitutes its valid and binding obligation, enforceable against Company in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles
of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state
securities laws or public policy relating thereto. 

  

	 	(ii)	Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Company hereunder will conflict with or result in a breach of (i) the Certificate of Incorporation or the
Amended and Restated By-Laws of Company, (ii) any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or (iii) any agreement or
instrument to which Company or any of its subsidiaries is a party or by which Company or any of its subsidiaries is bound or to which Company or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien
under, any such agreement or instrument, except, in the case of clause (iii) above, for any such conflict, breach, default or lien that would not, individually or in the aggregate, have a material adverse effect on Company and its subsidiaries,
taken as a whole, or on the power or ability of Company to execute and deliver this Confirmation or perform its obligations hereunder. 

  

	 	(iii)	No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Company of this Confirmation,
except such as have been obtained or made and such as may be required under the Securities Act of 1933, as amended (the “Securities Act”) or state securities laws. 


 

	 	(iv)	 A number of Shares equal to the Maximum Number of Shares (as defined below) (the “Warrant Shares”) have been reserved for issuance by
all required corporate action of Company. The Warrant Shares have been duly authorized and, when delivered against payment therefor (which may include Net Share Settlement in lieu of cash) and otherwise as contemplated by the terms of the Warrants
following the exercise of the Warrants in accordance with the terms and conditions of the Warrants, will be validly issued, fully paid and non-assessable, and the issuance of the Warrant Shares will not be subject to any preemptive or similar
rights. In addition, Company covenants and agrees that, at all 



  
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times until the earlier of (i) its delivery obligations hereunder have been met in full or (ii) the termination of the Transaction, novation by Company of the Transaction or assignment
by Company of the Transaction, in each case, in full, the representations set forth in this Section 8(a)(iv) shall be true. 

  

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

  

	 	(vi)	Company is an “eligible contract participant”, as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under
Section 1a(18)(C) of the Commodity Exchange Act, as amended. 

  

	 	(vii)	Company and each of its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Company or the Shares. 


 

	 	(viii)	Assuming compliance by Dealer and its affiliates with the covenant set forth in Section 9(dd), no federal, state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable
to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) by Dealer or its affiliates as a result of Dealer or its
affiliates owning or holding (however defined) Shares, except for the reporting requirements of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”) and the rules promulgated thereunder. 


 

	 	(ix)	Company (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise
independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million. 


 

	 	(x)	Company understands that notwithstanding any other relationship between Company and Dealer and its affiliates, in connection with the Transaction and any other over-the-counter derivative transactions between Company
and Dealer or its affiliates, Dealer or its affiliate is acting as principal and is not a fiduciary or advisor in respect of any such transaction, including any entry, exercise, amendment, unwind or termination thereof. 


 

	 	(xi)	Assuming compliance by Dealer and its affiliates with the covenant set forth in Section 9(dd), no provision in the Certificate of Incorporation of Company or the Amended and Restated By-Laws of Company (each, as amended
from time to time) applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its
affiliates owning or holding (however defined) Shares. 

  

	9.	Other Provisions. 

  

	 	(a)	[Reserved.] 

  

	 	(b)	 Repurchase Notices. Company shall, on any day on which Company effects any repurchase of Shares, promptly give Dealer a written notice
of such repurchase (a “Repurchase Notice”) on such day if following such repurchase, the number of outstanding Shares on such day, subject to any adjustments provided herein, is (i) less than 23.6 million (in the case of
the first such notice) or (ii) thereafter more than 1.3 million less than the number of Shares included in the immediately preceding Repurchase Notice. Company agrees to indemnify and hold harmless Dealer and its affiliates and their
respective officers, directors, employees, affiliates, advisors, agents and controlling persons (each, an “Indemnified Person”) from and against any and all direct losses (including losses relating to Dealer’s hedging
activities as a consequence of becoming, or of the 



  
 12 









	 	
risk of becoming, a Section 16 “insider”, including without limitation, any forbearance from hedging activities or cessation of hedging activities and any losses in connection
therewith with respect to the Transaction), claims, damages, judgments, liabilities and reasonable expenses (including commercially reasonable attorney’s fees of one counsel in each jurisdiction), joint or several, which an Indemnified Person
actually may become subject to, as a result of Company’s failure to provide Dealer with a Repurchase Notice on the day and in the manner specified in this paragraph, and to reimburse, within 30 days, upon written request, each of such
Indemnified Persons for any reasonable legal or other expenses incurred in connection with investigating, preparing for, providing testimony or other evidence in connection with or defending any of the foregoing. If any suit, action, proceeding
(including any governmental or regulatory investigation), claim or demand shall be brought or asserted against the Indemnified Person, such Indemnified Person shall promptly notify Company in writing, and Company, upon request of the Indemnified
Person, shall retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and any others Company may designate in such proceeding and shall pay the commercially reasonable fees and expenses of such counsel
related to such proceeding. Company 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, Company agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Company shall not, without the prior written consent of the Indemnified Person (such consent not to be unreasonably withheld, conditioned or
delayed), 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 Company under such paragraph, 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 which may
otherwise be available to any Indemnified Person at law or in equity. The indemnity and contribution agreements contained in this paragraph shall remain operative and in full force and effect regardless of the termination of the Transaction.


  

	 	(c)	Regulation M. Company is not on the Trade Date engaged in a distribution, as such term is used in Regulation M (“Regulation M”) under the Exchange Act, of any securities of Company, other
than the distribution of up to USD 230,000,000 of 2.25% Convertible Senior Notes due June 1, 2022. Company shall not, until the second Scheduled Trading Day immediately following the Effective Date, engage in any such distribution.


  

	 	(d)	No Manipulation. Company is not entering into the Transaction to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for the Shares) or to raise or
depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for the Shares) or otherwise in violation of the Exchange Act. 


 

	 	(e)	 Transfer or Assignment. Company may not transfer any of its rights or obligations under the Transaction without the prior written
consent of Dealer. Dealer may, without Company’s consent, transfer or assign all or any part of its rights or obligations under the Transaction to any third party (including, for the avoidance of doubt, any affiliate of Dealer);
provided, however, that after any such transfer and assignment, Company shall not be required to pay the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than an amount that Company would
have been required to pay to Dealer in the absence of such transfer or assignment, except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment; and provided further that transferee
shall deliver to Company such tax documentation as may be reasonably requested by Company. If at any time at which (A) the Section 16 Percentage exceeds 8.5%, (B) the Warrant Equity Percentage exceeds 14.5%, or (C) the Share
Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in 



  
 13 









	 	
clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Warrants to
a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date
with respect to a portion of the Transaction (the “Terminated Portion”), such that following such partial termination no Excess Ownership Position exists. In the event that Dealer so designates an Early Termination Date with respect
to a Terminated Portion, a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Warrants
equal to the number of Warrants underlying the Terminated Portion, (2) Company were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion were the sole Affected Transaction (and, for the avoidance
of doubt, the provisions of Section 9(j) shall apply to any amount that is payable by Company to Dealer pursuant to this sentence as if Company were not the Affected Party). The “Section 16 Percentage” as of any day is the
fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Dealer and each person subject to aggregation of Shares with Dealer and each “group” of which Dealer is a member or may be deemed a member,
in each case, under Section 13 or Section 16 of the Exchange Act and rules promulgated thereunder, directly or indirectly beneficially own (as defined under Section 13 or Section 16 of the Exchange Act and rules promulgated
thereunder) and (B) the denominator of which is the number of Shares outstanding. The “Warrant Equity Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the sum of
(1) the product of the Number of Warrants and the Warrant Entitlement and (2) the aggregate number of Shares underlying any other warrants purchased by Dealer from Company, and (B) the denominator of which is the number of Shares
outstanding. The “Share Amount” as of any day is the number of Shares that Dealer and any person whose ownership position would be aggregated with that of Dealer (Dealer or any such person, a “Dealer Person”) under
any law, rule, regulation, regulatory order or organizational documents or contracts of Company that are, in each case, applicable to ownership of Shares (“Applicable Restrictions”), owns, beneficially owns, constructively owns,
controls, holds the power to vote or otherwise meets a relevant definition of ownership under any Applicable Restriction, as determined by Dealer in its reasonable discretion. The “Applicable Share Limit” means a number of Shares
equal to (A) the minimum number of Shares that could give rise to reporting or registration obligations or other requirements (including obtaining prior approval from any person or entity) of a Dealer Person, or could result in an adverse
effect on a Dealer Person, under any Applicable Restriction, as determined by Dealer in its reasonable discretion, minus (B) 1% of the number of Shares outstanding. Notwithstanding any other provision in this Confirmation to the contrary
requiring or allowing Dealer to purchase, sell, receive or deliver any Shares or other securities, or make or receive any payment in cash, to or from Company, Dealer may designate any of its affiliates to purchase, sell, receive or deliver such
Shares or other securities, or make or receive such payment in cash, and otherwise to perform Dealer’s obligations in respect of the Transaction and any such designee may assume such obligations. Dealer shall be discharged of its obligations to
Company to the extent of such Dealer’s affiliate’s performance to Company. 

  

	 	(f)	Dividends. If at any time during the period from and including the Effective Date, to and including the last Expiration Date, an ex-dividend date for a cash dividend or distribution (whether or not
extraordinary) occurs with respect to the Shares, then the Calculation Agent will adjust any of the Strike Price, Number of Warrants, Daily Number of Warrants or Expiration Dates to preserve the fair value of the Warrants after taking into account
such dividend. 

  

	 	(g)	 Role of Agent. Morgan Stanley & Co. LLC (“MS&CO”) is acting as agent for both parties, subject at all
times to the limitation set forth in subsection (iv) of this paragraph, but does not guarantee the performance of either party. (i) Neither Dealer nor Company shall contact the other with respect to any matter relating to the Transaction
without the direct involvement of MS&CO; (ii) MS&CO, Dealer and Company each hereby acknowledges that any transactions by Dealer or MS&CO with respect to Shares will be undertaken by Dealer as principal for its own account;
(iii) except as otherwise provided herein (including, for the avoidance of doubt, as provided in the 



  
 14 









	 	
Agreement) all of the actions to be taken by Dealer and MS&CO in connection with the Transaction shall be taken by Dealer or MS&CO independently and without any advance or subsequent
consultation with Company; and (iv) MS&CO is hereby authorized to act as agent for Company only to the extent required to satisfy the requirements of Rule 15a-6 under the Exchange Act in respect of the Transaction. For the avoidance of
doubt, any performance by Dealer of its obligations to Company hereunder solely to MS&CO shall not relieve Dealer of such obligations. Any performance by Company of its obligations (including notice obligations) through or by means of
MS&CO’s agency for Dealer shall constitute good performance of Company’s obligations hereunder to Dealer. 

  

	 	(h)	Additional Provisions. 

  

	 	(i)	Amendments to the Equity Definitions: 

  

	 	(A)	Section 11.2(a) of the Equity Definitions is hereby amended by deleting the words “a diluting or concentrative” and replacing them with the words “a material”; and adding the phrase “or
Warrants” at the end of the sentence. 

  

	 	(B)	Section 11.2(c) of the Equity Definitions is hereby amended by (w) replacing the words “a diluting or concentrative” with “an” in the fifth line thereof, (x) adding the phrase “or
Warrants” after the words “the relevant Shares” in the same sentence, (y) deleting the words “diluting or concentrative” in the sixth to last line thereof and (z) deleting the phrase “(provided that no
adjustments will be made to account solely for changes in volatility, expected dividends, stock loan rate or liquidity relative to the relevant Shares)” and replacing it with the phrase “(provided that, solely in the case of Sections
11.2(e)(i), (ii)(A) and (iv), no adjustments will be made to account solely for changes in volatility, expected dividends, stock loan rate or liquidity relative to the relevant Shares but, for the avoidance of doubt, solely in the case of Sections
11.2(e)(ii)(B) through (D), (iii), (v), (vi) and (vii) adjustments may be made to account solely for changes in volatility, expected dividends, stock loan rate or liquidity relative to the relevant Shares).” 


 

	 	(C)	Section 11.2(e)(vii) of the Equity Definitions is hereby amended by deleting the words “diluting or concentrative” and replacing them with the word “material”; and adding the phrase “or
Warrants” at the end of the sentence. 

  

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

  

	 	(E)	Section 12.9(b)(iv) of the Equity Definitions is hereby amended by: 

  

	 	(x)	deleting (1) subsection (A) in its entirety, (2) the phrase “or (B)” following subsection (A) and (3) the phrase “in each case” in subsection (B); and 


 

	 	(y)	replacing the phrase “neither the Non-Hedging Party nor the Lending Party lends Shares” with the phrase “such Lending Party does not lend Shares” in the penultimate sentence. 


 

	 	(F)	Section 12.9(b)(v) of the Equity Definitions is hereby amended by: 

  

	 	(x)	adding the word “or” immediately before subsection “(B)” and deleting the comma at the end of subsection (A); and 


  
 15 









	 	(y)	(1) deleting subsection (C) in its entirety, (2) deleting the word “or” immediately preceding subsection (C), (3) deleting the penultimate sentence in its entirety and replacing it with the
sentence “The Hedging Party will determine the Cancellation Amount payable by one party to the other.” and (4) deleting clause (X) in the final sentence. 


 

	 	(ii)	Notwithstanding anything to the contrary in this Confirmation, upon the occurrence of one of the following events, with respect to the Transaction, (1) Dealer shall have the right to designate such event an
Additional Termination Event and designate an Early Termination Date pursuant to Section 6(b) of the Agreement, (2) Company shall be deemed the sole Affected Party with respect to such Additional Termination Event and (3) the
Transaction shall be deemed the sole Affected Transaction (provided that with respect to any such Additional Termination Event, Dealer may choose to treat a portion of the Transaction as the sole Affected Transaction, in which case the
remainder of the Transaction shall continue in full force and effect and, for the avoidance of doubt, (a) a payment shall be made pursuant to Section 6 of the Agreement as if an Early Termination Date had been designated in respect of a
Transaction having terms identical to the Transaction and a Number of Warrants equal to the number of Warrants included in the terminated portion of the Transaction, and (b) the Transaction shall remain in full force and effect except that the
Number of Warrants shall be reduced by the number of Warrants included in such terminated portion): 

  

	 	(A)	A “person” or “group” within the meaning of Section 13(d) of the Exchange Act, other than Company, its subsidiaries and its and their employee benefit plans, files a Schedule TO or any schedule,
form or report under the Exchange Act disclosing that such person or group has become the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the common equity of Company representing more than 50% of
the voting power of such common equity. 

  

	 	(B)	The consummation of (I) any recapitalization, reclassification or change of the Shares (other than changes resulting from a subdivision or combination) as a result of which the Shares would be converted into, or
exchanged for, stock, other securities, other property or assets or (II) any share exchange, consolidation or merger of Company pursuant to which the Shares will be converted into cash, securities or other property or assets or (III) any sale,
lease or other transfer in one transaction or a series of transactions of all or substantially all of the consolidated assets of Company and its subsidiaries, taken as a whole, to any person other than one of Company’s subsidiaries.
Notwithstanding the foregoing, any transaction or transactions set forth in clause (A) above or this clause (B) shall not constitute an Additional Termination Event if (x) at least 90% of the consideration received or to be received
by holders of the Shares, excluding cash payments for fractional Shares and cash payments made pursuant to dissenters’ appraisal rights, in connection with such transaction or transactions consists of shares of common stock that are listed or
quoted on any of The New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or any of their respective successors) or will be so listed or quoted when issued or exchanged in connection with such transaction or
transactions, and (y) as a result of such transaction or transactions, the Shares will consist of such consideration, cash payments for fractional Shares and cash payments made pursuant to dissenters’ appraisal rights. 


 

	 	(C)	Company’s stockholders approve any plan or proposal for the liquidation or dissolution of Company. 


  
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	 	(D)	The Shares cease to be listed or quoted on any of The New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or any of their respective successors). 


 

	 	(E)	Dealer, despite using commercially reasonable efforts, is unable or reasonably determines that it is impractical or illegal, to hedge its exposure with respect to the Transaction in the public market without
registration under the Securities Act or as a result of any legal, regulatory or self-regulatory organization requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been
voluntarily adopted by Dealer in good faith, but so long as such policies and procedures would generally be applicable to counterparties similar to Company and transactions similar to the Transaction). 


 

	 	(F)	Default by Company or any of its subsidiaries with respect to any mortgage, agreement or other instrument under which there may be outstanding, or by which there may be secured or evidenced, any indebtedness for money
borrowed in excess of USD 50,000,000 (or its foreign currency equivalent) in the aggregate of Company and/or any such subsidiary, whether such indebtedness now exists or shall hereafter be created (i) resulting in such indebtedness becoming or
being declared due and payable or (ii) constituting a failure to pay the principal or interest of any such indebtedness when due and payable at its stated maturity, upon required repurchase, upon declaration of acceleration or otherwise and, in
each case, such indebtedness is not discharged, or such acceleration is not otherwise cured or rescinded, within 30 days. 

  

	 	(G)	A final judgment or judgments for the payment of USD 50,000,000 (or its foreign currency equivalent) or more (excluding any amounts covered by insurance) in the aggregate rendered against Company or any of its
significant subsidiaries, which judgment is not discharged or stayed within 60 days after (I) the date on which the right to appeal thereof has expired if no such appeal has commenced, or (II) the date on which all rights to appeal have been
extinguished. 

  

	 	(i)	No Setoff; No Collateral. Notwithstanding any provision of the Agreement or any other agreement between the parties to the contrary, the obligations of Company hereunder are not, and shall not be, secured
by any collateral. 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. 

  

	 	(j)	 Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events. If (a) an Early Termination Date
(whether as a result of an Event of Default or a Termination Event) occurs or is designated with respect to the Transaction or (b) the Transaction is cancelled or terminated upon the occurrence of an Extraordinary Event (except as a result of
(i) a Nationalization, Insolvency or Merger Event in which the consideration to be paid to holders of Shares consists solely of cash, (ii) a Merger Event or Tender Offer that is within Company’s control, or (iii) an Event of
Default in which Company is the Defaulting Party or a Termination Event in which Company is the Affected Party other than an Event of Default of the type described in Section 5(a)(iii), (v), (vi), (vii) or (viii) of the Agreement or a
Termination Event of the type described in Section 5(b) of the Agreement, in each case that resulted from an event or events outside Company’s control), and if Company would owe any amount to Dealer pursuant to Section 6(d)(ii) and
Section 6(e) of the Agreement and any Cancellation Amount pursuant to Article 12 of the Equity Definitions (any such amount, a “Payment Obligation”), then Company shall satisfy the Payment Obligation by the Share Termination
Alternative (as defined below), unless (a) Company gives irrevocable telephonic notice to Dealer, confirmed in writing within one Scheduled Trading Day, no later than 12:00 p.m. (New York City time) on the Merger Date, Tender Offer Date,
Announcement Date (in the case of a Nationalization, Insolvency or Delisting), 



  
 17 









	 	
Early Termination Date or date of cancellation, as applicable, of its election that the Share Termination Alternative shall not apply, (b) Company remakes the representation set forth in
Section 8(a)(vii) as of the date of such election and (c) Dealer agrees, in its commercially reasonable discretion, to such election, in which case the provisions of Section 12.7 or Section 12.9 of the Equity Definitions, or the
provisions of Section 6(d)(ii) and Section 6(e) of the Agreement, as the case may be, shall apply. 

  

			
	Share Termination Alternative:		If applicable, Company shall deliver to Dealer the Share Termination Delivery Property on the date on which the Payment Obligation would otherwise be due pursuant to Section 12.7 or Section 12.9 of the Equity Definitions or Section
6(d)(ii) and Section 6(e) of the Agreement, as applicable, subject to Section 9(k)(i) below, in satisfaction, subject to Section 9(k)(ii) below, of the relevant Payment Obligation, in the manner reasonably requested by Dealer free of
payment.
		
	Share Termination Delivery Property:		A number of Share Termination Delivery Units, as calculated by the Calculation Agent, equal to the relevant Payment Obligation, divided by the Share Termination Unit Price. The Calculation Agent shall adjust the amount of
Share Termination Delivery Property by replacing any fractional portion of a security therein with an amount of cash equal to the value of such fractional security based on the values used to calculate the Share Termination Unit Price (without
giving effect to any discount pursuant to Section 9(k)(i)).
		
	Share Termination Unit Price:		The value to Dealer 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
good faith and by commercially reasonable means. In the case of a Private Placement of Share Termination Delivery Units that are Restricted Shares (as defined below), as set forth in Section 9(k)(i) below, the Share Termination Unit Price shall be
determined by the discounted price applicable to such Share Termination Delivery Units. In the case of a Registration Settlement of Share Termination Delivery Units that are Restricted Shares (as defined below) as set forth in Section 9(k)(ii)
below, notwithstanding the foregoing, the Share Termination Unit Price shall be the Settlement Price on the Merger Date, Tender Offer Date, Announcement Date (in the case of a Nationalization, Insolvency or Delisting), Early Termination Date or date
of cancellation, as applicable. The Calculation Agent shall notify Company of the Share Termination Unit Price at the time of notification of such Payment Obligation to Company or, if applicable, at the time the discounted price applicable to the
relevant Share Termination Units is determined pursuant to Section 9(k)(i).



  
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	Share Termination Delivery Unit:		One Share or, if the Shares have changed into cash or any other property or the right to receive cash or any other property as the result of a Nationalization, Insolvency or Merger Event (any such cash or other property, the
“Exchange Property”), a unit consisting of the type and amount of Exchange Property received by a holder of one Share (without consideration of any requirement to pay cash or other consideration in lieu of fractional amounts of any
securities) in such Nationalization, Insolvency or Merger Event. If such Nationalization, Insolvency or Merger Event involves a choice of Exchange Property to be received by holders, such holder shall be deemed to have elected to receive the maximum
possible amount of cash.
		
	Failure to Deliver:		Inapplicable
		
	Other applicable provisions:		If Share Termination Alternative is applicable, the provisions of Sections 9.8, 9.9, 9.11 and 9.12 (as modified above) of the Equity Definitions will be applicable, except that all references in such provisions to
“Physically-settled” shall be read as references to “Share Termination Settled” and all references to “Shares” shall be read as references to “Share Termination Delivery Units”. “Share Termination
Settled” in relation to the Transaction means that the Share Termination Alternative is applicable to the Transaction.


  

	 	(k)	Registration/Private Placement Procedures. If, in the reasonable determination of Dealer based on advice of counsel, following any delivery of Shares or Share Termination Delivery Property to Dealer
hereunder, such Shares or Share Termination Delivery Property would be in the hands of Dealer subject to any applicable restrictions, or any registration or qualification requirement or prospectus delivery requirement for such Shares or Share
Termination Delivery Property, 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 Share Termination
Delivery Property being subject to restrictions on resale under the Securities Act, or as a result of the sale of such Shares or Share Termination Delivery Property being subject to paragraph (c) of Rule 145 under the Securities Act) (such
Shares or Share Termination Delivery Property, “Restricted Shares”), then delivery of such Restricted Shares shall be effected pursuant to either clause (i) or (ii) below at the election of Company, unless Dealer waives
the need for registration/private placement procedures set forth in (i) and (ii) below. Notwithstanding the foregoing, solely in respect of any Daily Number of Warrants exercised or deemed exercised on any Expiration Date, Company shall
elect, prior to the first applicable Settlement Date for the first applicable Expiration Date, a Private Placement Settlement or Registration Settlement for all deliveries of Restricted Shares for all such Expiration Dates which election shall be
applicable to all remaining Settlement Dates for such Warrants and the procedures in clause (i) or clause (ii) below shall apply for all such delivered Restricted Shares on an aggregate basis commencing after the final Settlement Date for
such Warrants. The Calculation Agent shall make reasonable adjustments to settlement terms and provisions under this Confirmation to reflect a single Private Placement or Registration Settlement for such aggregate Restricted Shares delivered
hereunder. 


  
 19 









	 	(i)	If Company elects to settle the Transaction pursuant to this clause (i) (a “Private Placement Settlement”), then delivery of Restricted Shares by Company shall be effected in customary private
placement procedures with respect to such Restricted Shares reasonably acceptable to Dealer; provided that Company may not elect a Private Placement Settlement if, on the date of its election, it has taken, or caused to be taken, any action
that would make unavailable either the exemption pursuant to Section 4(a)(2) of the Securities Act for the sale by Company to Dealer (or any affiliate designated by Dealer) of the Restricted Shares or the exemption pursuant to
Section 4(a)(1) or Section 4(a)(3) of the Securities Act for resales of the Restricted Shares by Dealer (or any such affiliate of Dealer). The Private Placement Settlement of such Restricted Shares shall include commercially reasonable and
customary representations and covenants, blue sky and other governmental filings and/or registrations, indemnities to Dealer, commercially reasonable due diligence rights (for Dealer or any designated buyer of the Restricted Shares by Dealer),
opinions and certificates, and such other commercially reasonable documentation as is customary for private placement agreements, all reasonably acceptable to Dealer acting in good faith. In the case of a Private Placement Settlement, Dealer shall
determine the appropriate discount to the Share Termination Unit Price (in the case of settlement of Share Termination Delivery Units pursuant to Section 9(j) above) or premium to any Settlement Price (in the case of settlement of Shares
pursuant to Section 2 above) applicable to such Restricted Shares in a commercially reasonable manner and appropriately adjust the number of such Restricted Shares to be delivered to Dealer hereunder. Notwithstanding anything to the contrary in
the Agreement or this Confirmation, the date of delivery of such Restricted Shares shall be the Exchange Business Day following notice by Dealer to Company, of such applicable discount or premium, as the case may be, and the number of Restricted
Shares to be delivered pursuant to this clause (i). For the avoidance of doubt, delivery of Restricted Shares shall be due as set forth in the previous sentence and not be due on the Share Termination Payment Date (in the case of settlement of Share
Termination Delivery Units pursuant to Section 9(j) above) or on the Settlement Date for such Restricted Shares (in the case of settlement in Shares pursuant to Section 2 above). 


 

	 	(ii)	 If Company elects to settle the Transaction pursuant to this clause (ii) (a “Registration Settlement”), then Company shall
promptly (but in any event no later than the beginning of the Resale Period) file and use its reasonable best efforts to make effective under the Securities Act a registration statement or supplement or amend an outstanding registration statement in
form and substance reasonably satisfactory to Dealer acting in good faith, to cover the resale of such Restricted Shares in accordance with customary resale registration procedures, including commercially reasonable covenants, conditions,
representations, underwriting discounts (if applicable), commissions (if applicable), indemnities, due diligence rights, opinions and certificates, and such other documentation as is customary for equity underwriting agreements, all reasonably
acceptable to Dealer acting in good faith. If Dealer, in its reasonable discretion, is not satisfied with such procedures and documentation or if Dealer is not satisfied with such due diligence investigation, Private Placement Settlement shall
apply. If Dealer is satisfied with such procedures and documentation, it shall sell the Restricted Shares pursuant to such registration statement during a period (the “Resale Period”) commencing on the Exchange Business Day
following delivery of such Restricted Shares (which, for the avoidance of doubt, shall be (x) the Share Termination Payment Date in case of settlement in Share Termination Delivery Units pursuant to Section 9(j) above or (y) the
Settlement Date in respect of the final Expiration Date for all Daily Number of Warrants) and ending on the earliest of (i) the Exchange Business Day on which Dealer completes the sale of all Restricted Shares or, in the case of settlement of
Share Termination Delivery Units, a sufficient number of Restricted Shares so that the realized net proceeds of such sales equals or exceeds the Payment Obligation (as defined above), (ii) the date upon which all Restricted Shares have been
sold or transferred pursuant to Rule 144 (or similar provisions then in force) or Rule 145(d)(2) (or any similar provision then in force) under the Securities Act and (iii) the date upon which all Restricted Shares may be sold or




  
 20 









	 	
transferred by a non-affiliate pursuant to Rule 144 (or any similar provision then in force) or Rule 145(d)(2) (or any similar provision then in force) under the Securities Act. If the Payment
Obligation exceeds the realized net proceeds from such resale, Company shall transfer to Dealer by the open of the regular trading session on the Exchange on the Exchange Trading Day immediately following the last day of the Resale Period the amount
of such excess (the “Additional Amount”) in cash or in a number of Shares (“Make-whole Shares”) in an amount that, based on the Settlement Price on the last day of the Resale Period (as if such day were the
“Valuation Date” for purposes of computing such Settlement Price), has a dollar value equal to the Additional Amount. The Resale Period shall continue to enable the sale of the Make-whole Shares. If Company elects to pay the Additional
Amount in Shares, the requirements and provisions for Registration Settlement shall apply. This provision shall be applied successively until the Additional Amount is equal to zero. In no event shall Company deliver a number of Restricted Shares
greater than the Maximum Number of Shares. 

  

	 	(iii)	If the Private Placement Settlement or the Registration Settlement shall not be effected as set forth in clauses (i) or (ii), as applicable, then failure to effect such Private Placement Settlement or such
Registration Settlement shall constitute an Event of Default with respect to which Company shall be the Defaulting Party. 

  

	 	(l)	Limit on Beneficial Ownership. Notwithstanding any other provisions hereof, Dealer may not exercise any Warrant hereunder or be entitled to take delivery of any Shares deliverable hereunder, and Automatic
Exercise shall not apply with respect to any Warrant hereunder, to the extent (but only to the extent) that, after such receipt of any Shares upon the exercise of such Warrant or otherwise hereunder, (i) the Section 16 Percentage would
exceed 7.5%, or (ii) the Share Amount would exceed the Applicable Share Limit. Any purported delivery hereunder shall be void and have no effect to the extent (but only to the extent) that, after such delivery, (i) the Section 16
Percentage would exceed 7.5%, or (ii) the Share Amount would exceed the Applicable Share Limit. If any delivery owed to Dealer hereunder is not made, in whole or in part, as a result of this provision, Company’s obligation to make such
delivery shall not be extinguished and Company shall make such delivery as promptly as practicable after, but in no event later than one Business Day after, Dealer gives notice to Company that, after such delivery, (i) the Section 16
Percentage would not exceed 7.5%, and (ii) the Share Amount would not exceed the Applicable Share Limit. 

  

	 	(m)	 Share Deliveries. Company acknowledges and agrees that, to the extent the holder of this Warrant is not then an affiliate and has not
been an affiliate for 90 days (it being understood that Dealer will not be considered an affiliate under this paragraph solely by reason of its receipt of Shares pursuant to the Transaction), and otherwise satisfies all holding period and other
requirements of Rule 144 of the Securities Act applicable to it, (i) any Shares or Share Termination Delivery Property delivered hereunder at any time after 6 months from the Trade Date (or 1 year from the Trade Date if, at such time,
informational requirements of Rule 144(c) are not satisfied with respect to Company), and (ii) any Restricted Shares after the period of 6 months (or 1 year if, at such time, informational requirements of Rule 144(c) under the Securities Act
are not satisfied with respect to Company) has elapsed from the applicable Settlement Date or Share Termination Payment Date, in each case, shall be eligible for resale without restriction under Rule 144 of the Securities Act and Company agrees to
promptly remove, or cause the transfer agent for such Shares, Share Termination Delivery Property or Restricted Shares, to remove, any legends referring to any restrictions on resale under the Securities Act from any certificates representing such
Shares, Share Termination Delivery Property or Restricted Shares upon request by Dealer to Company or such transfer agent, without any 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 Dealer. Company further agrees that (i) any Shares or Share Termination Delivery Property delivered hereunder prior to the date that is 6 months from the
Trade Date (or 1 year from the Trade Date if, at such time, informational requirements of Rule 144(c) are not satisfied with respect to Company), and (ii) any Restricted Shares at any time before the period of 6 months (or 1 year if, at such
time, informational 



  
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requirements of Rule 144(c) under the Securities Act are not satisfied with respect to Company) has elapsed from the applicable Settlement Date or Share Termination Payment Date, in each case,
may be transferred by and among Dealer and its affiliates and Company shall effect such transfer without any further action by Dealer, and any affiliate to which such Shares, Share Termination Delivery Property or Restricted Shares is transferred
may request removal of any legends from any certificates representing such Shares, Share Termination Delivery Property or Restricted Shares, as the case may be, pursuant to the immediately preceding sentence. Notwithstanding anything to the contrary
herein, Company agrees that any delivery of Shares, Share Termination Delivery Property or Restricted Shares shall be effected by book-entry transfer through the facilities of DTC, or any successor depositary, if at the time of delivery, such class
of Shares, class of Share Termination Delivery Property or class or Restricted Shares is in book-entry form at DTC or such successor depositary. Notwithstanding anything to the contrary herein, to the extent the provisions of Rule 144 of the
Securities Act or any successor rule are amended, or the applicable interpretation thereof by the Securities and Exchange Commission or any court change after the Trade Date, the agreements of Company herein shall be deemed modified to the extent
necessary, in the opinion of outside counsel of Company, to comply with Rule 144 of the Securities Act or any successor rule, as in effect at the time of delivery of the relevant Shares, Share Termination Delivery Property or Restricted Shares.


  

	 	(n)	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. 


 

	 	(o)	Tax Disclosure. Effective from the date of commencement of discussions concerning the Transaction, Company 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 Company relating to such tax treatment and tax structure.


  

	 	(p)	Maximum Share Delivery.  

  

	 	(i)	Notwithstanding any other provision of this Confirmation, the Agreement or the Equity Definitions, in no event will Company at any time be required to deliver a number of Shares greater than two times the Number of
Warrants as of the Trade Date (the “Maximum Number of Shares”) to Dealer in connection with the Transaction (including, without limitation, any Shares deliverable to Dealer as a result of any early termination of the Transaction).
 

  

	 	(ii)	 In the event Company shall not have delivered to Dealer the full number of Shares or Restricted Shares otherwise deliverable by Company to Dealer
pursuant to the terms of the Transaction because Company has insufficient authorized but unissued Shares that are not reserved for other transactions (such deficit, the “Deficit Shares”), Company shall be continually obligated to
deliver, from time to time, Shares or Restricted Shares, as the case may be, to Dealer until the full number of Deficit Shares have been delivered pursuant to this Section 9(p)(ii), when, and to the extent that, (A) Shares are repurchased,
acquired or otherwise received by Company or any of its subsidiaries after the Trade Date (whether or not in exchange for cash, fair value or any other consideration), (B) authorized and unissued Shares previously reserved for issuance in
respect of other transactions become no longer so reserved or (C) Company additionally authorizes any unissued Shares that are not reserved for other transactions; provided that in no event shall Company deliver any Shares
or Restricted Shares to Dealer pursuant to this Section 9(p)(ii) to the extent that such delivery would cause the aggregate number of Shares and Restricted Shares delivered to Dealer to exceed the Maximum Number of Shares. 




  
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Company shall immediately notify Dealer of the occurrence of any of the foregoing events (including the number of Shares subject to clause (A), (B) or (C) and the corresponding number
of Shares or Restricted Shares, as the case may be, to be delivered) and promptly deliver such Shares or Restricted Shares, as the case may be, thereafter. 

  

	 	(q)	Right to Extend. Dealer may postpone or add, in whole or in part, any Expiration Date or any other date of valuation or delivery with respect to some or all of the relevant Warrants (in which event the
Calculation Agent shall make appropriate adjustments to the Daily Number of Warrants with respect to one or more Expiration Dates) if Dealer determines, in good faith and in its commercially reasonable judgment, that such extension is reasonably
necessary or appropriate to preserve Dealer’s commercially reasonable hedging or commercially reasonable hedge unwind activity hereunder in light of existing liquidity conditions or to enable Dealer to effect transactions in Shares in
connection with its commercially reasonable hedging, commercially reasonable hedge unwind or settlement activity hereunder in a manner that would, if Dealer were Issuer or an affiliated purchaser of Issuer, be in compliance with applicable legal,
regulatory or self-regulatory organization requirements, or with related policies and procedures applicable to Dealer. 

  

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


  

	 	(s)	Securities Contract; Swap Agreement. The parties hereto intend for (i) the Transaction to be a “securities contract” and a “swap agreement” as defined in the Bankruptcy Code (Title
11 of the United States Code) (the “Bankruptcy Code”), and the parties hereto to be entitled to the protections afforded by, among other Sections, Sections 362(b)(6), 362(b)(17), 546(e), 546(g), 555 and 560 of the Bankruptcy Code,
(ii) a party’s right to liquidate the Transaction and to exercise any other remedies upon the occurrence of any Event of Default under the Agreement with respect to the other party to constitute a “contractual right” as described
in the Bankruptcy Code, and (iii) each payment and delivery of cash, securities or other property hereunder to constitute a “margin payment” or “settlement payment” and a “transfer” as defined in the Bankruptcy
Code. 

  

	 	(t)	Wall Street Transparency and Accountability Act. In connection with Section 739 of the Wall Street Transparency and Accountability Act of 2010 (“WSTAA”), the parties hereby agree that
neither the enactment of WSTAA or any regulation under the WSTAA, nor any requirement under WSTAA or an amendment made by WSTAA, shall limit or otherwise impair either party’s otherwise applicable rights to terminate, renegotiate, modify, amend
or supplement this Confirmation or the Agreement, as applicable, arising from a termination event, force majeure, illegality, increased costs, regulatory change or similar event under this Confirmation, the Equity Definitions incorporated herein, or
the Agreement (including, but not limited to, rights arising from Change in Law, Hedging Disruption, Increased Cost of Hedging, an Excess Ownership Position, or Illegality (as defined in the Agreement)). 


 

	 	(u)	Agreements and Acknowledgements Regarding Hedging. Company understands, acknowledges and agrees that: (A) at any time on and prior to the last Expiration Date, Dealer and its affiliates may buy or sell
Shares or other securities or buy or sell options or futures contracts or enter into swaps or other derivative securities in order to adjust its hedge position with respect to the Transaction, (B) Dealer and its affiliates also may be active in
the market for Shares other than in connection with hedging activities in relation to the Transaction, (C) Dealer shall make its own determination as to whether, when or in what manner any hedging or market activities in securities of Issuer
shall be conducted and shall do so in a manner that it deems appropriate to hedge its price and market risk with respect to the Settlement Prices and (D) any market activities of Dealer and its affiliates with respect to Shares may affect the
market price and volatility of Shares, as well as the Settlement Prices, each in a manner that may be adverse to Company. 


  
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	 	(v)	Early Unwind. In the event the sale of the “Firm Securities” (as defined in the Underwriting Agreement) is not consummated with the Underwriters for any reason by 5:00 p.m. (New York City time)
on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date the “Early Unwind Date”), the Transaction shall automatically terminate (the “Early
Unwind”), on the Early Unwind Date and (i) the Transaction and all of the respective rights and obligations of Dealer and Company under the Transaction shall be cancelled and terminated and (ii) each party shall be released and
discharged by the other party from and agrees not to make any claim against the other party with respect to any obligations or liabilities of the other party arising out of and to be performed in connection with the Transaction either prior to or
after the Early Unwind Date. Each of Dealer and Company represents and acknowledges to the other that, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged. 


 

	 	(w)	Payment by Dealer. In the event that, following payment of the Premium, (i) an Early Termination Date occurs or is designated with respect to the Transaction as a result of a Termination Event or an
Event of Default (other than an Event of Default arising under Section 5(a)(ii) or 5(a)(iv) of the Agreement) and, as a result, Dealer owes to Company an amount calculated under Section 6(e) of the Agreement, or (ii) Dealer owes to
Company, pursuant to Section 12.7 or Section 12.9 of the Equity Definitions, an amount calculated under Section 12.8 of the Equity Definitions, such amount shall be deemed to be zero. 


 

	 	(x)	Acknowledgements Regarding Accounting. Without limiting the generality of Section 13.1 of the Equity Definitions, Company acknowledges that neither Dealer nor any of its affiliates is 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). 


 

	 	(y)	Private Placement Representations. Each of Dealer and Company acknowledges that the offer and sale of the Transaction to it is intended to be exempt from registration under the Securities Act, by
virtue of Section 4(a)(2) thereof. Accordingly, Dealer represents and warrants to Company 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 and its investments in and liabilities in respect of the Transaction, which it understands are not readily marketable, are not disproportionate to its net worth, and it is able to bear any loss in connection with the Transaction,
including the loss of its entire investment in the Transaction, (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, (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, and (v) its financial condition is such that it has no need for liquidity with respect to its investment in the Transaction and no need to dispose of any portion thereof to satisfy any
existing or contemplated undertaking or indebtedness and is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks of the
Transaction. 

  

	 	(z)	Listing of Warrant Shares. Company shall have submitted an application for the listing of the Warrant Shares on the Exchange, and such application and listing shall have been approved by the Exchange,
subject only to official notice of issuance, in each case, on or prior to the Premium Payment Date. Company agrees and acknowledges that such submission and approval shall be a condition precedent for the purpose of Section 2(a)(iii) of the
Agreement with respect to each obligation of Dealer under Section 2(a)(i) of the Agreement. 


  
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	 	(aa)	Delivery or Receipt of Cash. For the avoidance of doubt, other than receipt of the Premium by Company, nothing in this Confirmation shall be interpreted as requiring Company to cash settle the Transaction,
except in circumstances where cash settlement is within Company’s control (including, without limitation, where Company elects to deliver or receive cash, or where Company has made Private Placement Settlement unavailable due to the occurrence
of events within its control) or in those circumstances in which holders of Shares would also receive cash. 

  

	 	(bb)	Exclusive Jurisdiction. The word “non-” in Section 13(b)(i)(2) of the Agreement is hereby deleted. 


 

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


  

	 	(dd)	Voting of Shares. Dealer agrees that neither it nor any of its affiliates will vote any shares acquired by Dealer or its affiliates in connection with the Transaction (including, without limitation, Shares
acquired by Dealer or its affiliates to hedge any Hedge Position in respect of the Transaction).  

  

	 	(ee)	Certain Tax Considerations. 

  

	 	(i)	Dealer makes the following representations to Company: it is a “foreign person” (as that term is used in section 1.6041-4(a)(4) of the United States Treasury Regulations) for United States federal income tax
purposes and a “non-U.S. branch of a foreign person” (as that term is used in section 1.1441-4(a)(3)(ii) of the United States Treasury Regulations) for United States federal income tax purposes. 


 

	 	(ii)	Dealer agrees to deliver to Company a valid, accurate and complete U.S. Internal Revenue Service Form W-8BEN-E (or any successor form) and any required attachments thereto (A) upon execution of this Confirmation,
(B) promptly upon reasonable demand by Company and (C) promptly upon learning that any Form W-8BEN-E (or any successor thereto) previously provided by Dealer has become obsolete, invalid or incorrect. 


 

	 	(iii)	Company makes the following representation to Dealer: it is a corporation established under the laws of the State of Delaware and is a “United States person” (as that term is defined in
Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended). Company agrees to deliver to Dealer a valid, accurate and complete U.S. Internal Revenue Service Form W-9 (or any successor form) and any required attachments thereto
(A) upon execution of this Confirmation, (B) promptly upon reasonable demand by Dealer and (C) promptly upon learning that any Form W-9 (or any successor thereto) previously provided by Company has become obsolete, invalid or
incorrect. 

  

	 	(ff)	Withholding Tax imposed on payments to non-U.S. counterparties under the United States Foreign Account Tax Compliance Act. “Indemnifiable Tax” 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 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. 


 

  
 25 








 Please confirm that the foregoing correctly sets forth the terms of the agreement between Dealer
and Company 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 returning an executed copy to Dealer. 

 

					
	Yours faithfully,
		
			MORGAN STANLEY & CO. INTERNATIONAL PLC
			
			By:		/s/ Stefan Ploetscher
					Name: Stefan Ploetscher
					Title: Executive Director
		
			 MORGAN STANLEY & CO. LLC

as Agent

			
			By:		/s/ Scott Pecullan
					Name: Scott Pecullan
					Title: Managing Director


 Accepted and confirmed 
 as
of the Trade Date: 
  

			
	ATLAS AIR WORLDWIDE HOLDINGS, INC.
		
	By:		/s/ Spencer Schwartz
	Authorized Signatory
	Name:  Spencer Schwartz