Exhibit 4.31
Credit Suisse Capital LLC
c/o Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, NY 10010
January 30, 2019
NIO Inc. (“Counterparty”)
Building 20, No. 56 AnTuo Road, Jiading District
Shanghai, 201804
People’s Republic of China
Attention: Louis T. Hsieh, Chief Financial Officer
Telephone No.: +86 (21) 6908 3306
Facsimile No.: +86 (21) 3913 0192
Call Transaction
The purpose of this letter agreement(this “Confirmation”)is to confirmthe terms and conditions ofthecall option transactionentered into between Credit Suisse Capital LLC (“Dealer”)and Counterparty as of the Trade Datespecified below (the “Transaction”). This Confirmation constitutes a“Confirmation” asreferredto in the ISDA MasterAgreement specified below. This Confirmationshallreplace any previous agreements andserve as thefinaldocumentationfor the Transaction.
Thedefinitionsand provisionscontained in the 2002 ISDA Equity Derivatives Definitions(the “Equity Definitions”), aspublishedbythe International Swapsand Derivatives Association,Inc.(“ISDA”) are incorporatedinto this Confirmation. The Transactionconstitutes aShare OptionTransaction for purposes ofthe EquityDefinitions.Inthe eventof any inconsistency between the Equity Definitionsand thisConfirmation,this Confirmationwill govern. For the avoidance of doubt, referenceshereinto sections of thePurchase Agreement (the “Purchase Agreement”), to be dated on oraround January 30, 2019,amongCounterparty and Credit Suisse Securities (USA) LLC, Goldman Sachs (Asia) L.L.C., J.P.Morgan Securities LLC and Morgan Stanley & Co. LLC(the “Initial Purchasers”) are based onthe draftofthe PurchaseAgreement most recentlyreviewedbytheparties at thetime of execution of thisConfirmation.Certain defined terms used herein are based on terms that are defined in the Offering Memorandum dated January 30, 2019 (the “Offering Memorandum”) relating to the 4.50% Convertible Senior Notes due 2024 (as originally issued by Counterparty, the “Convertible Notes” and each USD 1,000 principal amount of Convertible Notes, a “Convertible Note”) issued by Counterparty in an aggregate initial principal amount of USD650,000,000 (as increased by up to an aggregate principal amount of USD100,000,000 if and to the extent that the Initial Purchasers (as defined herein) exercise their option to purchase additional Convertible Notes pursuant to the Purchase Agreement (as defined herein)) pursuant to an Indenture.
Each party is hereby advised,and each such party acknowledges, that theotherpartyhas engaged in, orrefrained fromengaging in, substantialfinancial transactions andhas takenother material actionsinreliance upon the parties’ entry intothe Transaction towhich this Confirmation relates onthe termsand conditions set forth below.
1. This Confirmation evidences a complete and binding agreement between Dealer and Counterparty as to the terms of the Transaction to which this Confirmation relates. This Confirmation shall supplement, form a part of, and be subject to an agreement in the form of the 2002 ISDA Master Agreement (the “Agreement”) as if Dealer and Counterparty had executed an agreement in such form (but without any Schedule except for (a)theelection of the laws of the State of New York as the governing law (without reference to choice of law doctrine) and(b) the agreement of the parties hereto that, following the payment of the Premium and the delivery to Dealer of the opinions of counsel as required pursuant to Section 9(a), the condition precedent in Section 2(a)(iii) of the Agreement shall not apply to a payment or delivery owing by Dealer to Counterparty (it being understood that such condition precedent will continue to apply and this clause (b) will have no effect with respect to a Potential Event of Default, Event of Default and/or Early Termination Date arising under, or with respect to, Section 5(a)(ii) or 5(a)(iv) of the Agreement)) 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.
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2. Theterms ofthe particular Transaction towhich this Confirmation relates are as follows:
GeneralTerms: | |
Trade Date: | January 30, 2019 |
OptionStyle: | European |
Option Type: | Call |
Seller: | Dealer |
Buyer: | Counterparty |
Shares: | TheAmericanDepositorySharesof Counterparty issued or deemed issued under the Deposit Agreement (as defined below)(Exchange symbol: “NIO”), each ofwhich represents as if the date hereof one Underlying Shares |
Underlying Shares: | Initially,Class A ordinary shares,nominal value USD 0.00025perUnderlyingShare,of Counterpartyand anyand allother securities, propertyand cashthat are the subject ofthe Deposit Agreement (asdefined below). |
Underlying Shares Issuer: | Counterparty |
Numberof Options: | 6,702,413. Forthe avoidanceof doubt,the Number of Optionsshall bereducedbythenumber of any Options settled pursuant toEarlySettlement (asdefined below) or exercised byCounterparty.Inno eventwill the Number ofOptions be less than zero. |
OptionEntitlement: | One.Forthe avoidance ofdoubt, the OptionEntitlement shall be subject toadjustment fromtimetotime, as describedunder “MethodofAdjustment” below. |
Numberof Shares: | As of any date,the product of the Number ofOptions andthe OptionEntitlement. |
StrikePrice: | USD 0.00 |
Premium: | USD 50,000,000. |
Premium PerOption: | Theamount equal tothe Premiumdivided bythe Number ofOptions. |
PremiumPayment Date: | February 4, 2019. |
Exchange(s): | New York Stock Exchange, or any successor to such exchange or quotationsystem. |
Related Exchange(s): | AllExchanges |
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MarketDisruptionEvent: | Thedefinitionof“Market DisruptionEvent”in Section 6.3(a) oftheEquity Definitions is hereby amended(A)bydeleting thewords “at anytime during the one hour periodthat ends atthe relevant Valuation Time, Latest ExerciseTime,Knock-in Valuation Time or Knock-out ValuationTime, asthe case may be” andinserting thewords “at anytimeon any Averaging Date”after theword “material,”inthe third line thereof, and (B) by replacing thewords “or (iii) an EarlyClosure.” therein with “(iii) an EarlyClosure, or(iv)a Regulatory Disruption.” Section 6.3(d) ofthe EquityDefinitionsis hereby amended by deleting the remainder of theprovision following the term“Scheduled Closing Time” inthe fourth line thereof. |
Regulatory Disruption: | Any event that Dealer, in itsreasonable discretionand in goodfaith, based on theadvice ofcounsel, determinesmakes it appropriatewith regard to anylegal, regulatory or self-regulatory requirements or related policiesand proceduresfor Dealer, that are generally applicable in similar situations and applied in a non-discriminatory manner, to refrain from ordecrease anymarketactivity in connectionwith the Transaction. Dealershallnotify Counterparty as soon as reasonably practicable that a Regulatory Disruption hasoccurred and the Averaging Datesaffected by it. |
DisruptedDay: | Thedefinitionof “DisruptedDay”inSection 6.4 ofthe Equity Definitionsshallbeamended by addingthe following sentence after thefirstsentence: “AScheduledTrading Day onwhich aRelated Exchange fails to openduring itsregular trading sessionwill not be aDisruptedDayifthe CalculationAgentdetermines, in its commerciallyreasonable discretion,that such failure will not have amaterial adverseimpactonDealer’s ability tounwindany relatedhedging transactions related tothe Transaction.”. |
Non-DisruptedDay: | AnExchangeBusiness Day that isnot a DisruptedDay. |
Procedure forExercise: | |
Expiration Time: | The Valuation Time |
Expiration Date: | The40th Non-Disrupted Dayfollowingthe NoteMaturity Date |
SecuritiesMaturityDate: | February 1, 2024 |
Automatic Exercise: | Applicable |
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Valuation: | |
Valuation Time: | Attheclose oftrading on theExchange, without regard toextended orafter hourstrading. |
Valuation Date: | The Expiration Date, subject to “EarlySettlement” below. |
AveragingDates: | The 40consecutiveNon-DisruptedDays commencingon, and including, the Note Maturity Date, subject to “EarlySettlement”below. |
Averaging DateDisruption: | ModifiedPostponement;providedthat, notwithstanding anything to the contrary in the Equity Definitions andin addition tothe provisions of Section 6.7(c)(iii) oftheEquityDefinitions,if any Averaging Date is a DisruptedDay, the CalculationAgent may,in its commerciallyreasonablediscretion,assign additional dates to beAveragingDates and/ormakeadjustments to thenumberofOptions towhich eachAveraging Date relates(including increasing suchnumber or reducingsuchnumber to zerowith respect tooneormore Averaging Dates). |
SettlementTerms: | |
Settlement Currency: | USD |
SettlementMethodElection: | Not applicable. |
Restricted CertificatedShares: | Notwithstandinganything tothe contraryinthe EquityDefinitions or this Confirmation, in satisfactionofany Share delivery obligation it mayhave underthe Transaction, Dealer may,inwholeor in part,deliver Sharesincertificated form representingthe Number ofShares to be Delivered to Counterpartyinlieu of delivery throughthe ClearanceSystem. |
PhysicalSettlement: | Applicable.Exceptin the case of any Early Settlement, arelevantportion of the Transactionshall expire on each Averaging Datewithrespectto anumber ofOptions equal tothe Number of Averaging DateOptions for suchAveraging Date.On thePhysical Settlement Delivery DateforsuchPhysical Settlement, Dealer shalldeliverto Counterpartythe sumof the Number ofAveraging Date Optionsforeach Averaging Datemultiplied bythe Option Entitlement asofeachsuch AveragingDatefor allAveraging Dates,andwillpay to Counterpartythe FractionalShare Amount,ifany. |
PhysicalSettlement Delivery Date: | The datethat isone Settlement Cycle immediatelyfollowing the Valuation Date. |
OtherApplicableProvisionsin Respect ofPhysical Settlement: | Therepresentations and agreementscontained in Section 9.11 oftheEquityDefinitions shall bemodifiedby excluding any representationstherein relating torestrictions, obligations, limitations orrequirements under applicablesecurities laws orunder the DepositAgreement(asdefined below) that existasaresult of thefact that Counterpartyisthe issuer of the Underlying Shares. |
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Share Adjustments: | |
MethodofAdjustment:
| CalculationAgentAdjustment. Forthe avoidance of doubt, in thecaseof any dividend ordistributionof the type described in Sections 11.2(e)(i) or11.2(e)(ii)(A) of the EquityDefinitions, the Calculation Agent shall make aproportional adjustment to theNumberof Shares toreflect such dividend ordistribution. |
Extraordinary Dividend: | Anydividend ordistributionon the Shares orthe UnderlyingShares with an ex-dividend dateoccurring during the periodfrom, and including, the Trade Date to,and including, the Expiration Date(other thananydividend or distribution ofthe type described in Section 11.2(e)(i)orSection11.2(e)(ii)(A) ofthe Equity Definitions). |
Extraordinary Events: | |
New Shares: | Inthe definition of New Shares in Section 12.1(i) ofthe Equity Definitions,the text inclause (i)shallbe deleted in its entirety and replacedwith “publicly quoted, traded orlisted on any ofthe New York StockExchange, the NASDAQ Global SelectMarketorthe NASDAQ GlobalMarket (ortheir respective successors)”. |
Consequences ofMerger Events: | |
(a)Share-for-Share | Modified Calculation Agent Adjustment |
(b)Share-for-Other | Modified Calculation Agent Adjustment or Cancellation and Payment (Calculation Agent Determination) at the commercially reasonable election of Dealer. |
(c)Share-for-Combined | Modified Calculation Agent Adjustment or Component Adjustment at the commercially reasonable election of Dealer. |
TenderOffer: | Applicable |
Consequences of TenderOffers: | |
(a)Share-for-Share | Modified CalculationAgent Adjustment |
(b)Share-for-Other | Modified CalculationAgent Adjustment |
(c)Share-for-Combined | Modified CalculationAgent Adjustment |
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Modified CalculationAgent Adjustment: | If, withrespect to aMerger Event or a TenderOffer,(i) the consideration for the Shares or Underlying Shares, as applicable, includes (or, at the option of a holder of Shares, or Underlying Shares, as applicable, may include) shares of an entity or person that is not (1) a corporation or an entity that is treated as a corporation for U.S. federal income tax purposes or (2) organized under the laws of the Cayman Islands or (ii) the Counterparty to the Transaction following such Merger Event or Tender Offer will not be a corporation or an entity that is treated as a corporation for U.S. federal income tax purposes organized under the laws of the Cayman Islands, and/or will not be the Underlying Shares Issuer then, in any case, Cancellation and Payment (Calculation Agent Determination) may apply at Dealer’s commercially reasonable election. |
Composition ofCombined Consideration: | Not Applicable |
Nationalization,Insolvency or Delisting: | Cancellationand Payment(CalculationAgent Determination). Thedefinitionof“Delisting” in Section 12.6 of the EquityDefinitions shall be deletedinits entirety and replacedwith the following: ‘“Delisting” means that the Exchange announces thatpursuanttotherulesofsuchExchange, theShares cease (or will cease) to be listed,traded or publicly quoted ontheExchangefor any reason(otherthan aMerger Event or TenderOffer) and arenot immediately re-listed,re-tradedor re-quoted onany of the New York StockExchange,TheNASDAQ Global SelectMarketor TheNASDAQ GlobalMarket(ortheir respective successors).”. IftheShares are immediately re-listed, re-traded orre-quoted on anysuch exchange or quotationsystem, such exchange or quotation systemshallthereafter be deemed to bethe Exchange.
Section 12.1 of the Equity Definitions is hereby amended by deleting subsection (v) thereof in its entirety and replacing it with “(v) in the case of an Insolvency, the date of (A) the institution of a proceeding or presentation of a petition or the passing of a resolution (or the convening of a meeting to pass a resolution or the proposing of a written resolution) (in each case the occurrence of which shall be deemed its announcement) that leads to an Insolvency within the meaning of subsection (A) of the definition thereof, (B) the first public announcement of the institution of a proceeding or presentation of a petition or passing of a resolution (or other analogous procedure in any jurisdiction) that leads to the Insolvency or (C) 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”. |
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Section 12.6(a)(ii) of the Equity Definitions is hereby amended by (1) inserting “(A)” after “means” in the first line thereof and replacing “(A)” and “(B)” in the third and fourth lines thereof with “(1)” and “(2)” respectively, (2) deleting from the fourth line thereof the word “or” after the word “official” and inserting a comma therefor, (3) inserting at the end of renumbered subsection (2) thereof the following wording, “or, under the laws of the Cayman Islands, any other jurisdiction or otherwise, any other impediment to or restriction on the transfer of any Share arises or becomes applicable including, without limitation, where (x) any transfer of a Share or alteration of the status of the members of the Issuer would be void unless a court of the Cayman Islands or any other jurisdiction orders otherwise or (y) any transfer of a Share not being a transfer with the sanction of a liquidator, and any alteration in the status of the Issuer’s members, would be void” and (4) deleting the semi-colon at the end of renumbered subsection (2) thereof and inserting the following words therefor “or (B) 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.” | |
AdditionalDisruption Events: | |
ChangeinLaw: | Applicable;providedthatSection 12.9(a)(ii) ofthe EquityDefinitionsis hereby amended by (i) replacingthe phrase “the interpretation”inthe third line thereofwith the phrase “, or publicannouncement of, the formal orinformal interpretation”, (ii) replacing theword “Shares” where it appears inclause(X) thereofwith thewords “Hedge Position” and (iii) replacingtheparentheticalbeginning afterthe word “regulation” in thesecond line thereofwiththewords “(including, for the avoidance of doubtandwithoutlimitation, (x)any tax law or (y) adoption,effectivenessorpromulgationof new regulations authorized ormandatedbyexistingstatute)”, andprovidedfurtherthatany determination as towhether (A) the adoption of or anychangein any applicable laworregulation (including, for the avoidance of doubtand without limitation, (x) any tax law or(y)adoption, effectiveness orpromulgationof newregulationsauthorized ormandatedby existingstatute) or (B)the promulgation of oranychangeinthe interpretation by any court,tribunalor regulatory authoritywith competent jurisdiction of any applicable law orregulation(including any action taken by ataxing authority), in eachcase, constitutes a“ChangeinLaw” shall bemade without regard to Section 739 oftheDodd-Frank Wall Street Reformand Consumer ProtectionActof 2010or anysimilar legal certainty provision in any legislation enacted, orrule orregulation promulgated, on orafter the Trade Date. |
Failureto Deliver: | Applicable |
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InsolvencyFiling: | Applicable
Section12.9(b)(i) ofthe Equity Definitions is herebyamendedby adding thefollowing sentenceat the end: “Ifneither party elects toterminatetheTransaction,the Calculation Agentmayin its sole discretion decide to applyadjustmentstothe terms ofthe Transaction uponthe occurrence of such an eventpursuantto Calculation AgentAdjustment (asifsuch eventwere a TenderOffer). Forthe avoidance of doubt,such adjustmentsshall bemade in a commercially reasonablemanner.” |
HedgingDisruption: | Applicable |
Increased Costof Hedging: | Applicable |
LossofStock Borrow: | Not Applicable |
Increased Costof StockBorrow: | Not Applicable |
HedgingParty: | Dealershallbethe Hedging Partyfor all applicable events |
DeterminingParty: | For all applicable Extraordinary Events, Dealer;provided that when making any determination or calculation as “Determining Party,” Dealer shall make such determinations or calculations in good faith and in a commercially reasonable manner.
Following any determination or calculation by Determining Party hereunder, the Determining Party will, upon written request from Counterparty, promptly (but in any event within five Scheduled Trading Days) provide to Counterparty a report (in a commonly used file format for the storage and manipulation of financial data) displaying in reasonable detail the basis for such determination or calculation (including any assumptions used in making such determination or calculation), it being understood that in no event will the Determining Party be obligated to share with Counterparty any proprietary or confidential data or information or any proprietary or confidential models used by it in making such determination or calculation or any information that is subject to an obligation not to disclose such information. |
Hedging Adjustments: | Fortheavoidance of doubt,whenever the CalculationAgentis called upon tomake an adjustmentpursuanttothe terms ofthis Confirmation orthe Equity Definitions totake into account the effect of an event,the Calculation Agent shall make such adjustment in a commercially reasonable manner by reference to the effect of such event on Dealer, assuming that Dealer maintains a commercially reasonable Hedge Position. |
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Representations: | |
Non-Reliance: | Applicable |
Agreementsand Acknowledgments RegardingHedging Activities: |
Applicable |
Additional Acknowledgments: | Applicable |
3. Additional Representations and Warranties of Counterparty:
Each oftherepresentationsand warranties of Counterpartyset forth in Section 2 ofthe Purchase Agreement aretrueand correctand are hereby deemed to be repeated to Dealer as ifsetforthherein. In lieu ofthe representations setforth inSection 3(a) oftheAgreement, Counterparty representsand warrants to Dealeron the date hereof and as of the Premium Payment Datethat:
(a) | Counterparty (i) is duly incorporated and validly existing as an exempted company with limited liability under the laws of the Cayman Islands and is in good standing under such laws, and (ii) has all necessary corporate power and authority to execute, deliver and perform its obligations and exercise its rights in respect of the Transaction; such execution, delivery, performance and exercise have been duly authorized by all necessary corporate action on Counterparty’s part; and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto. |
(b) | (i) It isnot enteringintothe Transaction on behalf of orfortheaccounts of anyotherperson orentity, and will not transferorassignits obligations underthe Transaction or any portion ofsuch obligationsto anyother person or entity except in compliancewithapplicablelaws and theterms ofthe Transaction; (ii) it understandsthatthe Transaction is subjecttocomplex risks which may arisewithout warning and may attimesbevolatile, and that losses may occur quicklyandinunanticipated magnitude;and(iii) ithas consulted with itslegaladvisor(s)and has reached its own conclusions aboutthe Transaction, and anylegal, regulatory, tax, accounting oreconomicconsequences arising fromthe Transaction. |
(c) | NeitherDealernor anyofitsaffiliateshas advised itwithrespect toany legal,regulatory, tax, accounting oreconomic consequencesarising fromthe Transaction, and neitherDealernoranyof its affiliatesis acting as agent, oradvisor for Counterpartyinconnection with the Transaction. |
(d) | Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations nor the exercise of rights of Counterparty hereunder will conflict with or result in a breach of the memorandum and articles of association or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is bound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument. |
(e) | No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws. |
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(f) | It has not entered into any obligation that would contractually limit it from effecting Physical Settlement (including in connection with an Early Settlement) under the Transaction. |
(g) | The Transaction has been duly approvedand authorized byCounterparty’sboard ofdirectors after due considerationby the board of directors of thematters,andafter having reached the conclusionsreferred to in paragraph (b)aboveand, prior tothe TradeDateCounterpartyshall deliver to Dealer aresolutionofCounterparty’sboardofdirectors authorizing the Transactionand suchother certificate or certificates, as Dealershallreasonably request. Forthe avoidance of doubt, eachrepresentation, warranty and certificationmadebyCounterparty insuch certificate shall bedeemed arepresentation and warranty madeby Counterpartyinthis paragraph(g). |
(h) | It is not enteringintothe Transaction to createactual or apparent trading activityin the Shares or Underlying Shares (or any security convertible into orexchangeable for Shares orUnderlying Shares), or tomanipulate the price oftheShares orUnderlying Shares (or any security convertibleinto orexchangeable for Shares orUnderlying Shares). |
(i) | Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended. |
(j) | Counterparty 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). |
(k) | Counterparty is not, on the date hereofand on eachdaypursuantto the terms hereof onwhich this representation is repeatedor deemed repeated, aware of any material non-public information with respect to Counterparty, the Underlying Shares Issuer (if other than Counterparty), the Underlying Shares or the Shares. |
(l) | Onandimmediately afterthe Trade Dateand the Premium Payment Date,andon each daypursuant tothe terms hereof on which this representationisrequired to berepeated or deemed repeated, (A)the assets of Counterparty attheir fair valuation exceedthe liabilities ofCounterparty,includingcontingent liabilities, (B)the capital of Counterparty is adequate toconduct thebusinessofCounterparty, (C) Counterparty has the ability topay its debtsand obligations as such debtsmature and does notintendto, ordoes not believe that itwill, incurdebtbeyond its ability topay as such debtsmature,(D) Counterparty isnot, and will not be, “insolvent” (assuch term is definedunder Section 101(32) oftheU.S. Bankruptcy Code (Title 11 ofthe UnitedStates Code)(the “Bankruptcy Code”)), (E) Counterparty would be able to purchase 100,536,150 Shares and the Underlying Shares represented by such number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization,and (F) for the purposes ofCayman Islands law,Counterparty is able to pay its debts. |
(m) | To the knowledge of Counterparty, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares and/or Underlying 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 and/or Underlying Shares (except for filings of Form 13F, Schedule 13D or Schedule 13G under the Exchange Act);providedthat Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of equity securities by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker-dealer. |
(n) | Counterparty isnotonthe Trade Dateengagedin a distribution, as such term isusedinRegulation M(“Regulation M”)under the SecuritiesExchange Act of 1934, asamended(the “Exchange Act”), ofanysecurities ofCounterparty other than a distribution meeting the requirements of the exception set forth in Rule 102(b)(7) of Regulation M. |
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(o) | Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; (C) has total assets of at least USD 50 million; and (D) is acting for its own account, and it has made its own independent decisions to enter into the Transaction and as to whether the Transaction is appropriate or proper for it (including as to any legal, regulatory, tax, accounting or economic consequences arising from the Transaction) based upon its own judgment and upon advice from such advisers as it has deemed necessary (including legal, financial and accounting advisors). |
(p) | Counterparty acknowledges thatthe offer and sale of the Transaction to it is intended to beexemptfrom registration underthe SecuritiesActof1933, asamended (the “Securities Act”),byvirtueof Section 4(a)(2)thereof. Accordingly, Counterparty represents andwarrantsto Dealer that (i)ithasthefinancial ability to beartheeconomic risk of itsinvestmentinthe Transactionandis ableto bear a totallossof its investment, (ii) it is an “accreditedinvestor”asthat term is definedinRegulation D aspromulgated underthe SecuritiesAct,(iii) itis entering intotheTransactionfor itsownaccountwithout a view to the distribution or resale thereofand (iv) theassignment, transfer orother disposition ofthe Transactionhas not beenand will not beregisteredunderthe Securities Actandis restrictedunder thisConfirmation, the SecuritiesAct and statesecurities laws. |
(q) | Ithas the corporatepower and authority and all necessary consents toeffect Physical Settlement of the Transaction as contemplated bythe Agreement. |
(r) | Counterparty’s board of directors (the “Board”) has concluded that (A) the Transaction is suitable for Counterparty, for its commercial benefit and in its best interests, in light of its own investment objectives, financial condition and expertise and (B) the Transaction has been duly approved and authorized by the Board after due consideration by the Board of the foregoing matters and those referred to in sub-paragraph (b)(iii) above. |
4. Additional Mutual Representations and Warranties:
In addition to the representationsset forthin the Agreement, each of Dealerand Counterpartyfurther represents and warrantstothe other party that asofthe Trade Date that it is an “eligiblecontractparticipant” asthe term is defined intheU.S. Commodity ExchangeAct, asamended.
5. Additional Covenants and Acknowledgements:
(a) | Counterparty shall deliver to Dealer (A) an opinion of U.S. counsel and (B) an opinion of Cayman counsel, each dated as of the Premium Payment Date, with respect to, among other things, the matters set forth in Sections 3(a), (d) and (e) of this Confirmation, it being understood that such opinions of counsel shall be limited to the federal laws of the United States and the laws of the State of New York (in the case of clause (A) above) and the laws Cayman Islands (in the case of clause (B) above) and may contain customary limitations, exceptions and qualifications for transactions of the same type as the Transaction. Delivery of such opinions to Dealer shall be a condition precedent for the purpose of Section 2(a)(iii) of the Agreement with respect to each obligation of Dealer under Section 2(a)(i) of the Agreement; and(C)on or before the Premium Payment Date, a solvency certificate with respect to Counterparty signed by a member of the Board, the chief executive officer or the chief financial officer of the Counterparty certifying the solvency of Counterparty as of and immediately after the Premium Payment Date (after giving effect to Counterparty’s payment of amounts required to be paid by Counterparty on such date under the Transaction and the other transactions described under “Use of Proceeds” in the Offering Memorandum related to the offering of the Convertible Notes), which solvency certificate is reasonably satisfactory to Dealer. |
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(b) | (i)Counterparty shall not engage in any distribution assuchterm isusedin Regulation M ofanysecurities of Counterparty or otherwise permit the Shares or the Underlying Shares to be subject to a restricted period, as such term is used in Regulation M, in each case,during the period(the“Restricted Period”)from, and including, the scheduled firstAveraging Date to,and including, the ExchangeBusinessDay immediatelysucceeding the Valuation Date (determinedwithoutregard to any EarlySettlement); provided, for the avoidance of doubt, that the foregoing shall not apply with respect to any Early Settlement. |
(ii) In connectionwithany Early Settlement, Counterpartyshall notify Dealer, as soon as practicable,and in any event no laterthan theExchangeBusiness Day immediatelyfollowing the Notice Datewithrespect to such Early Settlement, ofany distribution or restricted period,assuch termsareusedin Regulation M with respect to any securities of Counterpartythatis occurring onthe date Counterparty deliverssuch notice to Dealer or that Counterparty expects atsuch time may occur on anyAveraging Date, Valuation Date orthe Exchange Business Day immediatelysucceeding the Valuation Daterelatingto such Early Settlement.
(c) | On the Trade Date,andon eachdayduring the Restricted Period,neitherCounterpartynor any“affiliatedpurchaser” (each asdefinedin Rule10b-18under the Exchange Act(“Rule 10b-18”))shalldirectly or indirectly(including, withoutlimitation,bymeansofany cash-settled orother derivative instrument)purchase, offer topurchase, place any bid or limit orderthat would effect apurchase of, orcommenceanytenderofferrelating to, any Shares or Underlying Shares (or anequivalent interest, including aunitofbeneficial interestinatrustorlimited partnership or a depository share) or any security convertibleinto or exchangeable or exercisablefor Shares or Underlying Shares. |
(d) | 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)). |
6. Other Provisions:
(a) | Agreementsand Acknowledgements Regarding Hedging. Counterpartyunderstands, acknowledgesandagrees that:(A)at anytimeonandprior tothe ExpirationDate,Dealerand its affiliatesmaybuy orsell Shares orother securitiesor buy orsell options orfutures contractsorenter into swaps orother derivativesecuritiesin order toadjust itshedgepositionwith respect tothe Transaction; (B) Dealerand its affiliates also may beactiveinthe market for Sharesother thaninconnectionwith hedging activitiesin relation totheTransaction; (C) Dealershall make its own determination as towhether,when or inwhatmannerany hedging ormarket activitiesinsecuritiesof Counterpartyshall be conductedand shall dosoin amanner that it deems appropriate tohedge its priceand market risk;and (D) anymarketactivities of Dealerand its affiliateswithrespect to Sharesmayaffectthe marketpriceandvolatility of Shares, each in amanner that may beadverse to Counterparty. |
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(b) | Transfer. |
(i) | Counterparty shall have the right to transfer or assign all or any of its rights and obligations hereunder with respect to all, or any, of the Options hereunder (such Options, the “Transfer Options”) with the prior written consent of Dealer, such consent not to be unreasonably withheld;provided that withholding of such consent by Dealer shall not be considered unreasonable if such transfer or assignment does not meet any of the following conditions: |
(A) | With respect to any Transfer Options, Counterparty shall not be released from its notice and indemnification obligations pursuant to Section 9(m) of this Confirmation; |
(B) | Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are reasonably requested and reasonably satisfactory to Dealer; |
(C) | Under the applicable law effective on the date of such transfer or assignment, (1) Dealer will not, as a result of such transfer or assignment, be required to pay the transferee or assignee on any payment date or delivery date an amountor a number of Shares, as applicable,under Section 2(d)(i)(4) of the Agreement greater than the amount or the number of Shares, as applicable,that Dealer would have been required to pay to Counterparty in the absence of such transfer or assignment and (2) Dealer will not, as a result of such transfer or assignment, receive from the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement that is less than the amount that Dealer would have received from Counterparty in the absence of such transfer or assignment; |
(D) | No Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer and assignment; |
(E) | Counterparty shall cause the transferee to make such tax representations and to provide such tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that results described in clauses (C) and (D) will not occur upon or after such transfer and assignment, including but not limited to providing tax documentation specified in Section 9(bb) of this Confirmation and making the tax representations specified in Section 9(aa) of this Confirmation on or prior to such transfer and at the other times specified in such Sections; and |
(F) | Counterparty shall be responsible for all reasonable and documented costs and expenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment. |
(ii) | Dealer may, without Counterparty’s consent, transfer or assign all or any part of its rights or obligations under the Transaction to any affiliate of Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer;providedthat, in the case of any such transfer or assignment, under the applicable law effective on the date of such transfer or assignment, (I) Counterparty will not, as a result of such transfer or assignment, be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount that Counterparty would have been required to pay to Dealer in the absence of such transfer or assignment; (II) Counterparty will not, as a result of such transfer or assignment, receive from the transferee or assignee on any payment or delivery date an amount or a number of Shares, as applicable, under Section 2(d)(i)(4) of the Agreement that is less than the amount or the number of Shares that Counterparty would have received from Dealer in the absence of such transfer or assignment; (III) Dealer shall cause the transferee or assignee to make such tax representations and to provide such tax documentation as may be reasonably requested by Counterparty to permit Counterparty to determine that events described in clauses (I) and (II) of this proviso will not occur upon or after such transfer or assignment; and (IV) no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer and assignment. |
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If at anytimeatwhich (A)the Section 13Percentageexceeds 8.5%, (B)the Option Equity Percentage exceeds 14.5%, or(C) the ShareAmountexceeds the ApplicableShare Limit (ifanyapplies) (anysuch condition described in clauses(A),(B) or(C), an “Excess Ownership Position”), Dealer is unableafter using its commercially reasonable efforts toeffectatransfer or assignment of Options to athirdparty onpricing terms reasonably acceptable to Dealerand within a time period reasonably acceptable to Dealersuch that no Excess Ownership Positionexists, then Dealermay designate any ExchangeBusiness Day asan Early Termination Datewith respect to a portion oftheTransaction(the “Terminated Portion”), tothe extent necessaryso thatno ExcessOwnership Position existsfollowing such partialtermination. Inthe eventthat Dealerso designatesanEarly Termination Datewith respect to a portion ofthe Transaction, apayment shall bemade pursuant to Section 6 ofthe Agreement asif(1) an Early Termination Datehad beendesignatedin respect of a Transaction having terms identical tothe Transaction and a Number of Optionsequal tothe number ofOptions underlying the Terminated Portion, (2) Counterpartywerethe soleAffected Partywith respect tosuch partial termination and (3)theTerminated Portionwere the soleAffectedTransaction. The “Section 13 Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Underlying Shares that Dealer and any of its affiliates or any other person subject to aggregation with Dealer for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act, or any “group” (within the meaning of Section 13 of the Exchange Act) of which Dealer is or may be deemed to be a part beneficially owns (within the meaning of Section 13 of the Exchange Act), without duplication, on such day (or, to the extent that for any reason the equivalent calculation under Section 16 of the Exchange Act applies with respect to the Shares or Underlying Shares, as applicable, and the rules and regulations thereunder results in a higher number, such higher number) and (B) the denominator of which is the number of Underlying Shares outstanding on such day. The “Option Equity Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the sum of (1) the product of (x) the Number of Options (y) the Option Entitlement and (z) the number of Underlying Shares represented by one Share and (2) the aggregate number of Underlying Shares underlying any other call option transaction sold by Dealer to Counterparty, and (B) the denominator of which is the number of Underlying Shares outstanding. The “Share Amount” as of any day is the number of Underlying Shares that Dealer and any person whose ownership position would be aggregated with that of Dealer (Dealer or any such person, a “Dealer Person”) under any law, rule, regulation, regulatory order or organizational documents or contracts of Counterparty that are, in each case, applicable to ownership of Underlying 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 Underlying Shares equal to (A) the minimum number of Underlying Shares that could give rise to reporting or registration obligations (except for any filing requirements on Form 13F, Schedule 13D or Schedule 13G under the Exchange Act, in each case, as in effect on the Trade Date) 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 good faith and in its commercially reasonable discretion,minus (B) 1% of the number of Underlying Shares outstanding.
(c) | Designation.Notwithstandinganyotherprovisionin this Confirmation to the contraryrequiring or allowing Dealer topurchase,sell,receiveordeliver any Shares orother securities, ormake orreceiveany payment incash,toorfrom Counterparty, Dealermaydesignate any of its affiliates topurchase, sell, receive or deliversuchShares orother securities, or tomakeor receivesuch payment incash, andotherwise to perform Dealer’s obligationsinrespect oftheTransactionandanysuch designee may assume such obligations. Dealershallbe discharged of its obligations to Counterparty totheextent ofanysuchperformance. |
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(d) | No Collateral. No collateralisrequiredto beposted by Counterparty or Dealer, in respect ofthe Transaction. |
(e) | Bankruptcy Code Provisions. Each of Dealerand Counterpartyagrees andacknowledgesthat Dealer isoneormoreof a “swap participant” and/or“financial participant”within themeaningofSections101(53C)and 101(22A) of the Bankruptcy Code.Thepartieshereto further agree and acknowledge (A) that this Confirmationis(i) a“securitiescontract,” assuchterm is defined in Section 741(7) ofthe Bankruptcy Code,withrespect to which each payment and delivery hereunder or in connectionherewithis a “settlementpayment,” assuchterm is definedinSection 741(8) ofthe Bankruptcy Code,and (ii) a“swapagreement,” assuch term isdefinedin Section 101(53B) ofthe Bankruptcy Code,withrespect towhich each paymentanddeliveryhereunder or in connectionherewithis a “terminationvalue,” “payment amount” or“other transfer obligation” withinthe meaningof Section 362 ofthe Bankruptcy Codeand a“transfer,”assuch termisdefinedin Section 101(54) oftheBankruptcy Code,anda“paymentortransfer of property”withinthemeaningofSections 362and546 ofthe Bankruptcy Code,and(B)that Dealer is entitled totheprotectionsafforded by, amongothersections, Sections 362(b)(6),362(b)(17), 362(b)(27), 362(o), 546(e), 546(g),546(j),555,560 and 561 ofthe Bankruptcy Code. |
(f) | Early Unwind. Intheevent thesaleof the Underwritten Securities (asdefined in thePurchaseAgreement) is not consummated with the Initial Purchasers for any reason, or Counterparty fails to deliver to Dealer opinions of counsel as required pursuant to Section 5(a), in each case by 5:00 p.m. (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date the “Early Unwind Date”), the Transaction shall automatically terminate (the “Early Unwind”), on the Early Unwind Date and (i) the Transaction and all of the respective rights and obligations of Dealer and Counterparty under the Transaction shall be cancelled and terminated and (ii) each party shall be released and discharged by the other 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 Counterparty 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. |
(g) | Amendments to Equity Definitions. |
a. | Section 11.2(e)(vii) of the Equity Definitions is hereby amended by deleting the words “that may have a diluting or concentrative effect on the theoretical value of the relevant Shares” and replacing them with the words “that is the result of a corporate event involving the Underlying Shares Issuer or its securities that has a material economic effect on the Shares and/or the Underlying Shares or options on the Shares and/or the Underlying Shares;provided that such event is not based on (a) an observable market, other than the market for the Underlying Shares Issuer’s own stock or (b) an observable index, other than an index calculated and measured solely by reference to the Underlying Shares Issuer’s own operations.” |
b. | Section 12.6(a)(ii) of the Equity Definitions is hereby amended by (1) inserting “(1)” immediately following the word “means” in the first line thereof and (2) inserting immediately prior to the semi-colon at the end of subsection (B) thereof the following words: “or (2) 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”provided that the period for dismissal, discharge, stay or restraint therein shall be increased from “within 15 days” to “within 30 days.” |
c. | Section 12.9(b)(i) of the Equity Definitions is hereby amended by (1) replacing “either party may elect” with “Dealer may elect” and (2) replacing “notice to the other party” with “notice to Counterparty” in the first sentence of such section. |
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d. | Section 12.9(b)(vi) of the Equity Definitions is hereby amended by (1) adding the word “or” immediately before subsection “(B)”, (2) deleting the comma at the end of subsection (A), (3) deleting subsection (C) in its entirety, (4) deleting the word “or” immediately preceding subsection (C) and (5) replacing the words “either party” in the last sentence of such Section with “Dealer”. |
(h) | EarlySettlement. |
a. | Dealermay,fromtime totimeon orafter the30thdayfollowingthe Trade Date,settle the Transaction early (“Early Settlement”), inwhole or in part, by delivering awritten notice to Counterparty onanyExchangeBusiness Day(the “Notice Date”)specifyingthe portion ofthe Transaction to be settled early(the“Early Settled Portion”). |
b. | Withrespect to any Early Settled Portion,Dealer shall providenoticeto Counterpartyno later than 3ScheduledTrading Daysfollowing the Notice Date,specifyingthe AveragingDate(s)(ifany), thenumberof Options thatshall expire on eachsuch Averaging Dateandthe Valuation Date in respect ofsuch EarlySettlement, and Dealerwill deliver to Counterparty anumberof Sharesequal to the product of(x) the sum of thenumber ofOptionsexpiring on eachsuch Averaging Date,multiplied by (y)theOption Entitlement,and will pay to CounterpartytheFractional ShareAmount, ifany,on thePhysical Settlement Delivery Date relating tothespecified Valuation Datewith respect tosuch Physical Early Settled Portion. |
c. | Such delivery and anysuch payment will bemadethrough therelevant Clearance System onthe applicable settlement dates; providedthat, for the avoidance of doubt,“RestrictedCertificatedShares”above shall also applywith respect to Early Settlement. |
(i) | Depository Shares Provisions. |
(i) For the purposes of this Confirmation the following definitions will apply:
“Depositary” means, in relation to the Shares, Deutsche Bank Trust Company Americas, or any successor thereto from time to time.
“Deposit Agreement” means, (i) that certain Deposit Agreement, dated as of September 11, 2018, by and among Underlying Shares Issuer, Depositary and the holders and beneficial owners of the Shares and (ii) the other agreements or other instruments constituting the Shares, as from time to time amended or supplemented in accordance with their terms.
“DS Amendment” means, where specified as applicable to a definition or provision, that the following changes shall be made to such definition or provision: (a) all references to “Shares” shall be deleted and replaced with the words “Shares and/or the Underlying Shares, as appropriate”; and (b) all references to “Issuer” shall be deleted and replaced with the words “Issuer or Underlying Shares Issuer, as appropriate”.
“Replacement DSs” means depositary shares or receipts, other than the Shares, over the same Underlying Shares.
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(ii) The following amendments shall be made to the Equity Definitions:
(A) | The definition of Potential Adjustment Event in Section 11.2(e) of the Equity Definitions shall be amended as follows: |
(i) | the DS Amendment shall be applicable, provided that an event under Section 11.2(e)(i) to (vii) of the Equity Definitions in respect of the Underlying Shares shall not constitute a Potential Adjustment Event unless, in the commercially reasonable opinion of the Calculation Agent, such event has a material effect on the theoretical value of the Shares; and |
(ii) | (A) | ‘or’ shall be deleted where it appears at the end of subsection (vi); |
(B) | ‘.’ shall be deleted where it appears at the end of subsection (vii) and replaced with ‘;’; |
(C) | the following shall be inserted as subsection (viii): “(viii) the making of any amendment or supplement to the terms of the Deposit Agreement and/or the Shares; or”; and |
(D) | the following shall be inserted as provision (ix): “(ix) any other event as a result of which the Shares represent fewer or more Underlying Shares than, and/or any property or assets in addition to, or as a whole or partial replacement of, in each case, the number of Underlying Shares represented by the Shares prior to such event.” |
(B) | In making any adjustment following any Potential Adjustment Event, the Calculation Agent shall have reference to (to the extent necessary or appropriate among other factors) any adjustment made by the Depositary under the Deposit Agreement, any fees and/or expenses of the Depositary and any withholding or deduction of taxes. If the Calculation Agent determines that no adjustment that it could make will produce a commercially reasonable result, it shall notify the parties that the relevant consequence shall be the termination of the relevant Transaction, in which case “Cancellation and Payment (Calculation Agent Determination)” will be deemed to apply and any payment to be made by one party to the other shall be calculated in accordance with Section 12.7 of the Equity Definitions (as amended by this Confirmation). |
(C) | If a Potential Adjustment Event occurs under Section 11.2(e)(viii) of the Equity Definitions (as amended by this Confirmation), then the following further amendments shall be deemed to be made to Section 11.2(c) of the Equity Definitions in respect of such Potential Adjustment Event: |
(i) | the words “the Calculation Agent will determine whether such Potential Adjustment Event has a material effect on the theoretical value of the relevant Shares, options on the Shares or the Transaction” shall be deleted and replaced with the words “the Calculation Agent will determine whether such Potential Adjustment Event has a material economic effect on such Transaction”; and |
(ii) | the words “as the Calculation Agent determines appropriate to account for that material effect” shall be deleted and replaced with the words “as the Calculation Agent determines appropriate to account for such economic effect on such Transaction”. |
(D) | The definitions of “Merger Event”, “Tender Offer”, “Announcement Date”, “Share-for-Share”, “Share-for-Other” and “Share-for-Combined” in Section 12.1 of the Equity Definitions shall be amended in accordance with the DS Amendment. |
(E) | In making any adjustment in respect of a Merger Event, Tender Offer or Announcement Event in relation to the Underlying Shares, the Calculation Agent shall in determining any adjustment pursuant to Modified Calculation Adjustment, have reference to (amongst other factors) any adjustment made by the Depositary under the Deposit Agreement, any fees and/or expenses of the Depositary and any withholding or deduction of taxes, as determined by the Calculation Agent in its commercially reasonable discretion. |
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(F) | The definitions of Nationalization and Insolvency in Section 12.6 of the Equity Definitions shall be amended in accordance with the DS Amendment. |
(G) | The consequence of a Nationalization or Insolvency in respect of the Depositary shall be Cancellation and Payment. |
(H) | If a Delisting of the Shares occurs or the Depositary announces that the Deposit Agreement is (or will be) terminated, then: |
(i) | Cancellation and Payment will apply as provided in this Confirmation; and |
(ii) | where Cancellation and Payment applies under (H)(i) above in respect of a termination of the Deposit Agreement, the Equity Definitions shall be interpreted as follows: (i) such termination shall be deemed to be an “Extraordinary Event”; (ii) Cancellation and Payment shall apply as defined in Section 12.6(c)(ii) of the Equity Definitions; and (iii) the definition of “Announcement Date” in Section 12.1(l) of the Equity Definitions shall include the following additional clause (vii) at the end of the first sentence thereof: “(vii) in the case of a termination of the Deposit Agreement, the date of the first public announcement by the Depositary that the Deposit Agreement is (or will be) terminated”. |
(I) | If Cancellation and Payment applies under Section 5(h)(ii)(G) or Section 5(h))(ii)(H) of this Confirmation in respect of a Transaction, then the Determining Party shall be Dealer. |
(J) | The definition of “Insolvency Filing” in Section 12.9(a)(iv) of the Equity Definitions shall be amended in accordance with the DS Amendment. |
(K) | For the avoidance of doubt, where a provision is amended by this Section 5(h) in accordance with the DS Amendment, if the event described in such provision occurs in respect of the Underlying Shares or Underlying Shares Issuer, then the consequence of such event shall be interpreted consistently with the DS Amendment and such event. |
(j) | Right toExtend.Dealermay postpone orextend, for as long as it is reasonablynecessary,any Averaging Date,theExpiration Date, the Physical Settlement Delivery Date or any other date ofpaymentor deliveryby Dealer, with respect to some or all of the Options hereunder, if Dealer reasonably determines, in the case of clause (i) below, in its commercially reasonable judgment or, in the case of clause (ii) below, based on advice of counsel, that such action is reasonably necessary or appropriate (i) to preserve Dealer’s commercially reasonable hedging or hedge unwind activity hereunder in light of existing liquidity conditions in the relevant market or (ii) to enable Dealer to effect transactions with respect to Shares and/or Underlying Shares in connection with its commercially reasonable hedging, hedge unwind or settlement activity hereunder in a manner that would, if Dealer were Counterparty or an affiliated purchaser of Counterparty, be in compliance with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures adopted by Dealer in good faith so long as such policies and procedures are generally applicable in similar situations and applied in a non-discriminatory manner). |
(k) | StaggeredSettlement.If upon advice of counsel with respect to applicable legal and regulatory requirements, including any requirements relating to Dealer’s hedging activities hereunder, Dealer reasonably determines that it would not be practicable or advisable to deliver, or to acquire Shares to deliver, any or all of the Shares to be delivered by Dealer on any Settlement Date for the Transaction, Dealer may, by notice to Counterparty on or prior to any Settlement Date (a “Nominal Settlement Date”), elect to deliver the Shares on two or more dates (each, a “Staggered Settlement Date”) as follows: |
(i) | in such notice, Dealer will specify to Counterparty the related Staggered Settlement Dates (the first of which will be such Nominal Settlement Date and the last of which will be no later than the twentieth (20th) Exchange Business Day following such Nominal Settlement Date) and the number of Shares that it will deliver on each Staggered Settlement Date; and |
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(ii) | the aggregate number of Shares that Dealer will deliver to Counterparty hereunder on all such Staggered Settlement Dates will equal the number of Shares that Dealer would otherwise be required to deliver on such Nominal Settlement Date. |
(l) | Registration. Counterparty hereby agrees that if, in the good faith reasonable judgment of Dealer, based on the advice of counsel, the Shares and/or Underlying Shares (“Hedge Shares”) acquired by Dealer for the purpose of commercially reasonably hedging its obligations pursuant to the Transaction cannot be sold in the public market by Dealer without registration under the Securities Act, Counterparty shall, at its election, either (i) in order to allow Dealer to sell the Hedge Shares in a registered offering, make available to Dealer an effective registration statement under the Securities Act and enter into an agreement, in form and substance reasonably satisfactory to Dealer, substantially in the form of an underwriting agreement customary for a registered secondary offering of a similar size in respect of a similar issuer;provided, however, that if Dealer, in its sole reasonable discretion, is not satisfied with access to due diligence materials, the results of its due diligence investigation, or the procedures and documentation for the registered offering referred to above, then clause (ii) or clause (iii) of this paragraph shall apply at the election of Counterparty, (ii) in order to allow Dealer to sell the Hedge Shares in a private placement, use commercially reasonable efforts to enter into a private placement agreement substantially similar to private placement purchase agreements customary for private placements of equity securities of a similar size in respect of a similar issuer, in form and substance satisfactory to Dealer (in which case, the Calculation Agent shall make any adjustments to the terms of the Transaction that are necessary, in its commercially reasonable judgment, to compensate Dealer for any commercially reasonable discount from the public market price of the Shares and/or Underlying Shares incurred on the sale of Hedge Shares in a private placement), or (iii) purchase the Hedge Shares from Dealer at the then-current market price on such Exchange Business Days, and in the amounts and at such time(s), reasonably requested by Dealer. |
(m) | Repurchase Notices. Counterparty shall, on or prior to the date that is one Scheduled Trading Day following any date on which Counterparty effects any repurchase of Shares and/or Underlying Shares, promptly give Dealer a written notice of such repurchase (a “Repurchase Notice”) on such day if following such repurchase, the number of outstanding Underlying Shares as determined on such day is (i) less than 727.2 million (in the case of the first such notice) or (ii) thereafter more than 37.8 million less than the number of Underlying Shares included in the immediately preceding Repurchase Notice;providedthat Counterparty may provide Dealer advance notice on or prior to any such day including the maximum number of Shares and/or Underlying Shares that may be repurchased under a repurchase program entered into in reliance on Rule 10b5-1(c) and the approximate periods during which such repurchases may occur, to the extent it expects that repurchases effected on such day may result in an obligation to deliver a Repurchase Notice (and in such case, any such advance notice shall be deemed a Repurchase Notice to the maximum extent of repurchases set forth in such advance notice as if Counterparty had executed such repurchases). Counterparty agrees that, if Counterparty ceases to qualify as a “foreign private issuer” as defined in Rule 3b-4 under the Exchange Act or the Shares or Underlying Shares, as applicable, otherwise become subject to the requirements of Section 16 of the Exchange Act, Counterparty will indemnify and hold harmless Dealer and its affiliates and their respective officers, directors, employees, affiliates, advisors, agents and controlling persons (each, an “Indemnified Person”) from and against any and all losses (including losses relating to Dealer’s hedging activities as a consequence of becoming, or of the risk of becoming, a Section 16 “insider”, including without limitation, any forbearance from hedging activities or cessation of hedging activities and any losses in connection therewith with respect to the Transaction), claims, damages, judgments, liabilities and reasonable and documented out-of-pocket expenses (including reasonable attorney’s fees of one outside counsel in each relevant jurisdiction), joint or several, which an Indemnified Person may become subject to, in each case, as a result of Counterparty’s failure to provide Dealer with a Repurchase Notice on the day and in the manner specified in this paragraph, and to reimburse, within 30 days, upon written request, each of such Indemnified Persons for any reasonable legal or other out-of-pocket expenses (to the extent supported by invoices or other documentation setting forth in reasonable detail such 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 as a result of Counterparty’s failure to provide Dealer with a Repurchase Notice in accordance with this paragraph, such Indemnified Person shall promptly notify Counterparty in writing, and Counterparty, upon request of the Indemnified Person, shall retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and any others Counterparty may designate in such proceeding and shall pay the reasonable fees and expenses of such counsel related to such proceeding. Counterparty shall not be liable to the extent that the Indemnified Person fails to notify Counterparty within a commercially reasonable period of time after any action is commenced against it in respect of which indemnity may be sought hereunder. In addition, Counterparty shall not have liability for any settlement of any such proceeding contemplated by this paragraph that is effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, Counterparty agrees to indemnify any Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Counterparty shall not, without the prior written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding contemplated by this paragraph in respect of which any Indemnified Person is or could have been a party and indemnity could have been sought hereunder by such Indemnified Person, unless such settlement includes an unconditional release of such Indemnified Person from all liability on claims that are the subject matter of such proceeding on terms reasonably satisfactory to such Indemnified Person. If the indemnification provided for in this paragraph is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then Counterparty hereunder, 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. |
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(n) | AdditionalNotices. Counterpartyshall provide awrittennotice to Dealer as promptlyas practicable uponbecomingawarethatCounterpartyisnotorwill no longer be a“foreignprivateissuer,” as such term is defined in Rule3b-4under the Exchange Act. |
(o) | TerminationCurrency.USD |
(p) | Alternative Calculations andPaymenton Early Termination and on Certain ExtraordinaryEvents. If Dealershall owe Counterparty anyamountpursuant to“Consequencesof MergerEvents” above orSections12.6,12.7 or 12.9 oftheEquity Definitions orpursuant to Section 6(d)(ii) ofthe Agreement (a“PaymentObligation”), Dealershallsatisfy anysuch Payment Obligation by theShareTerminationAlternative(asdefinedbelow) except in theevent (i) of anInsolvency,a Nationalization, aMerger Event, or aBankruptcyEvent ofDefaultunder Section 5(a)(vii) ofthe Agreement,in eachcase, inwhichthe consideration or proceeds to be paid to holders ofShares consists solely ofcash, (ii) ofan Event of Default inwhichCounterparty isthe Defaulting Party or a TerminationEvent inwhichCounterparty isthe Affected Party or an ExtraordinaryEvent,whichEventof Default, TerminationEventor ExtraordinaryEvent resulted from aneventor eventswithin Counterparty’s control, or (iii) any Event ofDefaultresulting from a breach by Counterparty of itsrepresentationscontained in paragraph(g) or (l) ofthe section “Additional Representationsand Warranties ofCounterparty”as of orimmediately after the Trade Date or as of or immediatelyafter the PremiumPayment Date;providedthatCounterparty shallhave theright,in its sole discretion, to elect torequireDealer tosatisfyanyPaymentObligation incash bygivingirrevocable telephonicnotice to Dealer,confirmed inwriting within one Scheduled TradingDay, no later than 9:30A.M.New York Citytimeon therelevant Merger Date,AnnouncementDate, Early Termination Date or date ofcancellationor termination in respect of an ExtraordinaryEvent,as applicable (“Notice of Cash Termination”)so long as Counterparty repeatstherepresentationsset forth in paragraph(g)ofthe section“Additional Representationsand Warranties ofCounterparty”as of the date ofsuch election,providedfurther thatDealershall have theright,in its sole discretion, to elect tosatisfyitsPaymentObligation by the Share TerminationAlternative, notwithstanding Counterparty’selection torequire Dealer tosatisfyanyPayment Obligation incash.Thefollowing provisionsshallapplyfor the Share TerminationAlternativeontheScheduled Trading Day immediatelyfollowingtherelevant merger date,AnnouncementDate, Early Termination Date or date ofcancellation or termination in respect of an ExtraordinaryEvent,as applicable: |
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Share Termination Alternative: | Applicable. Dealershall deliver to CounterpartytheShare Termination Delivery Property on, or as promptly as commercially reasonably practicable thereafter, the date on whichthePayment Obligation would otherwise be due pursuantto“Consequences of Merger Events” above, Section 12.7 or 12.9 of the Equity Definitions or Section 6(d)(ii) of the Agreement, as applicable, in satisfaction of thePayment Obligation. |
Share Termination DeliveryProperty: | AnumberofShare Termination Delivery Units, as calculated bythe Calculation Agent,equal to thePayment Obligationdivided by the Share Termination Unit Price. The CalculationAgent shall adjustthe ShareTerminationDeliveryProperty by replacing anyfractionalportion of asecurity thereinwithan amount ofcashequal to thevalue ofsuch fractional security based onthe values used to calculatetheShare Termination Unit Price. |
Share Termination Unit Price: | Thevalue of propertycontainedinone Share Termination Delivery Unit on the date suchShareTermination Delivery Units are deliveredas Share Termination DeliveryProperty,as determinedbythe Calculation Agent in its commercially reasonable discretion andnotifiedby the CalculationAgent to Dealeratthe time of notificationofthePayment Obligation. |
Share Termination Delivery Unit: | In thecaseofa TerminationEvent, Eventof Default, Delisting, TenderOffer orAdditionalDisruptionEvent, one Share or,inthe case ofanInsolvency,Nationalization orMerger Event, one Share or aunit consisting ofthe number oramountof eachtype of property receivedbyaholder ofone Share(withoutconsideration ofanyrequirement topay cash orother considerationin lieu offractional amounts of anysecurities) insuch Insolvency, Nationalization orMerger Event, as applicable. IfsuchInsolvency, Nationalization orMerger Event involves a choice of consideration to bereceived by holders, such holder shall be deemed tohaveelected toreceive the consideration specified by Dealer in its sole discretion. |
Failure to Deliver: | Applicable |
Other applicableprovisions: | IfShare Termination Alternative is applicable,the provisions of Sections 9.8, 9.9and 9.11 (exceptthatthe Representationand Agreement containedinSection 9.11 of the EquityDefinitions shall bemodifiedby excludinganyrepresentations therein relating to restrictions, obligations, limitations orrequirements under applicablesecurities laws arising as aresultof the fact that Counterpartyis theissuerofthe Shares or any portion of the Share Termination DeliveryUnits)of the EquityDefinitions will be applicable asif“Physical Settlement” applied tothe Transaction, except that allreferences to “Shares”shallbe read asreferences to“ShareTermination Delivery Units.” |
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(q) | Office. |
(a) TheOffice of Counterpartyfor the Transactionis:Inapplicable, Counterparty isnota Multibranch Party.
(b) TheOfficeof Dealerfor the Transactionis: New York
(r) | Notice.Forpurposesofthe Agreement (unless otherwise specified in theAgreement), the addressesfor notice tothepartiesshallbe: |
(i) to Counterparty:
NIO Inc.
Building 20, No. 56 AnTuo Road, Jiading District
Shanghai, 201804
People’s Republic of China
Attention: Louis T. Hsieh, Chief Financial Officer
Telephone No.: +86 (21) 6908 3306
Facsimile No.: +86 (21) 3913 0192
with a copy to:
Nick Wang
VP of Finance
Telephone No.: +86 (21) 6908-2002
Email: Nick.Wang@nio.com
with a copy to:
Fang Liu
General Counsel
Telephone No.: +86 (21) 6908-2277
Email: Fang.Liu@nio.com
with a copy to:
Sabrina Shi
Senior Corporate Counsel
Telephone No.: +86 (21) 6908-3391
Email: Danting.Shi@nio.com
(ii) to Dealer:
Credit Suisse Capital LLC
c/o Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, NY 10010
Attention: Tucker Martin
Telephone: (212) 325-9182
Facsimile: (212) 743-3661
Email: tucker.martin@credit-suisse.com
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With a copy to:
Credit Suisse Securities (USA) LLC
1 Madison Avenue, 9th Floor
New York, New York 10010
Attn: Senior Legal Officer
Telephone: (212) 538-2616
Facsimile: (212) 325-8036
Email: stephen.gray@credit-suisse.com
For payments and deliveries:
Facsimile No.: (212) 325 8175
Telephone No.: (212) 325 8678 / (212) 325 3213
For all other communications:
Telephone: (212) 538-6040
Facsimile: (917) 326-8603
(s) | Calculation Agent. Dealer provided that, following the occurrence and during the continuance of an Event of Default under Section 5(a)(vii) of the Agreement with respect to which Dealer is the Defaulting Party, Counterparty shall have the right to designate a nationally recognized independent equity derivatives dealer to replace Dealer as the Calculation Agent, and the parties shall work in good faith to execute any appropriate documentation required by such replacement Calculation Agent. |
Following any adjustment, determination or calculation by the Calculation Agent hereunder, the Calculation Agent will, upon written request from Counterparty, promptly (but in any event within five Scheduled Trading Days) provide to Counterparty by email a report (in a commonly used file format for the storage and manipulation of financial data) displaying in reasonable detail the basis for such adjustment, determination or calculation (including any assumptions used in making such adjustment, determination or calculation), it being understood that in no event will the Calculation Agent be obligated to share with Counterparty any proprietary or confidential data or information or any proprietary or confidential models used by it in making such adjustment, determination or calculation or any information that is subject to an obligation not to disclose such information. All calculations and determinations by the Calculation Agent shall be made in good faith and in a commercially reasonable manner.
(t) | WAIVER OF JURY TRIAL.EACHPARTYWAIVES,TO THEFULLESTEXTENT PERMITTED BYAPPLICABLE LAW, ANY RIGHT IT MAY HAVETOA TRIAL BY JURY INRESPECT OFANYSUIT, ACTION ORPROCEEDING RELATINGTO THE TRANSACTION.EACHPARTY (I)CERTIFIESTHAT NO REPRESENTATIVE,AGENT OR ATTORNEY OFTHEOTHER PARTYHASREPRESENTED, EXPRESSLY OR OTHERWISE, THATSUCHOTHER PARTYWOULD NOT, INTHEEVENT OFSUCHA SUIT, ACTION ORPROCEEDING,SEEKTO ENFORCETHEFOREGOINGWAIVER AND (II) ACKNOWLEDGES THATIT ANDTHEOTHER PARTYHAVE BEEN INDUCEDTOENTER INTOTHE TRANSACTION,ASAPPLICABLE,BY,AMONGOTHER THINGS,THE MUTUAL WAIVERSANDCERTIFICATIONS PROVIDEDHEREIN. |
(u) | Tax Disclosure.Effective from the date of commencement of discussions concerning theTransaction, Counterpartyand each of its employees,representatives,orother agents may disclose to anyandall persons,without limitation ofanykind, the taxtreatmentandtaxstructureofthe transactionandallmaterials of anykind(includingopinions orothertaxanalyses) that are provided to Counterparty relating tosuchtax treatmentand taxstructure. |
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(v) | Service of Process. Counterparty irrevocably appointsLaw Debenture Corporate Services Inc.as its authorizedagentuponwhich processmaybeservedin anysuit, action or proceeding relating tothe Transaction,and agrees thatservice of process in anymannerpermitted by applicable law uponsuchagent shall bedeemed in every respecteffectiveservice of process inanymannerpermittedby applicable law upon Counterpartyinany suchsuit,action orproceeding.Counterpartyfurther agrees to take anyandall action as may be necessary tomaintainsuch designationand appointment ofsuchagentinfull force and effect for a period offiveand a halfyears fromthedate of this Confirmation.Ifforany reasonsuch agent shall ceaseto besuch agent for service of process, Counterpartyshall forthwith appoint a new agent of recognized standingfor service of process in the StateofNew Yorkand deliver to Dealer a copy ofthenew agent’s acceptance of thatappointment within 10days. Nothing herein shall affect theright of Dealer toserveprocess in anyother manner permitted by law or tocommencelegalproceedingsorotherwise proceedagainstCounterparty inany other court ofcompetent jurisdiction. |
(w) | U.S. Tax Forms. Without limiting the generality of the foregoing, Counterparty will provide a U.S. Tax Form W-8BEN-E upon the execution of this Confirmation, promptly upon learning that any such tax form previously provided by it has become obsolete or incorrect and promptly upon reasonable demand by Dealer. |
(x) | Taxes, Foreign Account Tax Compliance Act and HIRE Act. Counterparty is classified as a corporation for the U.S. federal income tax purposes. No income received or to be received under the Agreement will be effectively connected with the conduct of a trade or business by Counterparty in the United States. Counterparty is 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 (the “Regulations”), and it is a “foreign person” as that term is used in Section 1.6041-4(a)(4) of the Regulations. The term “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 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. The parties agree that the definitions and provisions contained in the ISDA 2015 Section 871(m) Protocol, as published by the International Swaps and Derivatives Association, Inc. and as may be amended, supplemented, replaced or superseded from time to time (the “871(m) Protocol”) shall apply to the Agreement as if the parties had adhered to the 871(m) Protocol as of the Effective Date. If there is any inconsistency between this provision and a provision in any other agreement executed between the parties, this provision shall prevail unless such other agreement expressly overrides the provisions of the 871(m) Protocol. Each of Dealer and Counterparty shall provide to the other party tax forms and documents required to be delivered pursuant to Sections 1471(b) or Section 1472(b)(1) of the Code promptly upon request by the other party and any other tax forms and documents they are legally able to provide that are reasonably requested by the other party. |
(y) | Role of Agent. As a broker-dealer registered with the U.S. Securities and Exchange Commission (“SEC”), Credit Suisse Securities (USA) LLC in its capacity as Agent will be responsible for (i) effecting the Transaction, (ii) issuing all required confirmations and statements to Dealer and Counterparty, (iii) maintaining books and records relating to the Transaction as required by Rules 17a-3 and 17a-4 under the Exchange Act and (iv) unless otherwise requested by Counterparty, receiving, delivering, and safeguarding Counterparty’s funds and any securities in connection with each Transaction, in compliance with Rule 15c3-3 under the Exchange Act. |
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Credit Suisse Securities (USA) LLC is acting in connection with the Transaction solely in its capacity as Agent for Dealer and Counterparty pursuant to instructions from Dealer and Counterparty. Credit Suisse Securities (USA) LLC shall have no responsibility or personal liability to Dealer or Counterparty arising from any failure by Dealer or Counterparty to pay or perform any obligations hereunder, or to monitor or enforce compliance by Dealer or Counterparty with any obligation hereunder, including without limitation, any obligations to maintain collateral. Each of Dealer and Counterparty agrees to proceed solely against the other to collect or recover any securities or monies owing to it in connection with or as a result of the Transaction. Credit Suisse Securities (USA) LLC shall otherwise have no liability in respect of the Transaction, except for its gross negligence or willful misconduct in performing its duties as Agent.
Any and all notices, demands, or communications of any kind relating to this Transaction between Dealer and Counterparty shall be transmitted exclusively through Agent at the following address:
Credit Suisse Capital LLC
c/o Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, NY 10010
Attention: Tucker Martin
Telephone: (212) 325-9182
Facsimile: (212) 743-3661
Email: tucker.martin@credit-suisse.com
With a copy to:
Credit Suisse Securities (USA) LLC
1 Madison Avenue, 9th Floor
New York, New York 10010
Attn: Senior Legal Officer
Telephone: (212) 538-2616
Facsimile: (212) 325-8036
Email: stephen.gray@credit-suisse.com
For payments and deliveries:
Facsimile No.: (212) 325 8175
Telephone No.: (212) 325 8678 / (212) 325 3213
For all other communications:
Telephone: (212) 538-6040
Facsimile: (917) 326-8603
The date and time of the Transaction evidenced hereby will be furnished by the Agent to Dealer and Counterparty upon written request.
The Agent will furnish to Counterparty upon written request a statement as to the source and amount of any remuneration received or to be received by the Agent in connection with the Transaction evidenced hereby.
Dealer is not a member of the SIPC (Securities Investor Protection Corporation).
Dealer represents that it is an “OTC derivatives dealer” as such term is defined in the Exchange Act and is an affiliate of a broker-dealer that is registered with and fully-regulated by the SEC, Credit Suisse Securities (USA) LLC.
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(z) | QFC Stay Provisions.To the extent that the QFC Stay Rules are applicable hereto, then the parties agree that (i) to the extent that prior to the date hereof both parties have adhered to the 2018 ISDA U.S. Resolution Stay Protocol (the “Protocol”), the terms of the Protocol are incorporated into and form a part of this Confirmation, and for such purposes this Confirmation shall be deemed a Protocol Covered Agreement and each party shall be deemed to have the same status as “Regulated Entity” and/or “Adhering Party” as applicable to it under the Protocol; (ii) to the extent that prior to the date hereof the parties have executed a separate agreement the effect of which is to amend the qualified financial contracts between them to conform with the requirements of the QFC Stay Rules (the “Bilateral Agreement”), the terms of the Bilateral Agreement are incorporated into and form a part of this Confirmation and each party shall be deemed to have the status of “Covered Entity” or “Counterparty Entity” (or other similar term) as applicable to it under the Bilateral Agreement; or (iii) if clause (i) and clause (ii) do not apply, the terms of Section 1 and Section 2 and the related defined terms (together, the “Bilateral Terms”) of the form of bilateral template entitled “Full-Length Omnibus (for use between U.S. G-SIBs and Corporate Groups)” published by ISDA on November 2, 2018 (currently available on the 2018 ISDA U.S. Resolution Stay Protocol page at www.isda.org and, a copy of which is available upon request), the effect of which is to amend the qualified financial contracts between the parties thereto to conform with the requirements of the QFC Stay Rules, are hereby incorporated into and form a part of this Confirmation, and for such purposes this Confirmation shall be deemed a “Covered Agreement,” Dealer shall be deemed a “Covered Entity” and Counterparty shall be deemed a “Counterparty Entity.” In the event that, after the date of this Confirmation, both parties hereto become adhering parties to the Protocol, the terms of the Protocol will replace the terms of this paragraph. In the event of any inconsistencies between this Confirmation and the terms of the Protocol, the Bilateral Agreement or the Bilateral Terms (each, the “QFC Stay Terms”), as applicable, the QFC Stay Terms will govern. Terms used in this paragraph without definition shall have the meanings assigned to them under the QFC Stay Rules. For purposes of this paragraph, references to “this Confirmation” include any related credit enhancements entered into between the parties or provided by one to the other. In addition, the parties agree that the terms of this paragraph shall be incorporated into any related covered affiliate credit enhancements, with all references to Dealer replaced by references to the covered affiliate support provider. |
“QFC Stay Rules” means the regulations codified at 12 C.F.R. 252.2, 252.81–8, 12 C.F.R. 382.1-7 and 12 C.F.R. 47.1-8, which, subject to limited exceptions, require an express recognition of the stay-and-transfer powers of the FDIC under the Federal Deposit Insurance Act and the Orderly Liquidation Authority under Title II of the Dodd Frank Wall Street Reform and Consumer Protection Act and the override of default rights related directly or indirectly to the entry of an affiliate into certain insolvency proceedings and any restrictions on the transfer of any covered affiliate credit enhancements.
(aa) | Incorporation of ISDA 2015 Section 871(m) Protocol.The parties to this Confirmation agree that the amendments set out in the Attachment to the ISDA 2015 Section 871(m) Protocol published by ISDA on November 2, 2015 and available on the ISDA website (www.isda.org) shall apply to this Confirmation. The parties further agree that this Confirmation will be deemed to be a Covered Master Agreement and that the Implementation Date shall be the effective date of this Confirmation as amended by the parties for the purposes of such Protocol amendments regardless of the definitions of such terms in the Protocol. |
(bb) | Incorporation of ISDA 2012 FATCA Protocol. The parties to this Confirmation agree that the amendments set out in the Attachment to the ISDA 2012 FATCA Protocol published by ISDA on August 15, 2012 and available on the ISDA website (www.isda.org) shall apply to this Confirmation. The parties further agree that this Confirmation will be deemed to be a Covered Master Agreement and that the Implementation Date shall be the effective date of this Confirmation as amended by the parties for the purposes of such Protocol amendments regardless of the definitions of such terms in the Protocol. |
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Please confirm that theforegoing correctly sets forth the terms of our agreement by executing this Confirmation and returning it to Dealer.
Yours sincerely, | ||
CREDIT SUISSE CAPITAL LLC | ||
By: | /s/ Authorized Signatory | |
Name: | ||
Title: | ||
By: | /s/ Authorized Signatory | |
Name: | ||
Title: | ||
CREDIT SUISSE SECURITIES | ||
(USA) LLC, as agent | ||
By: | /s/ Authorized Signatory | |
Name: | ||
Title: |
[Signature Page to Zero-Strike Call]
Agreed and Accepted, | ||
NIO Inc. | ||
By: | /s/ Authorized Signatory | |
Name: | ||
Title: |
[Signature Page to Zero-Strike Call]