Hilton Grand Vacations Inc 8-K, filed Oct 30, 2026
Hilton Grand Vacations Inc. (HGV)
8-K
2026-10-30
For: 2026-10-30
View Original
Added on
October 30, 2026
About this 8-K
Hilton Grand Vacations Inc filed this 8-K on October 30, 2026.
Hilton Grand Vacations Inc. entered an uncollared accelerated share repurchase with Deutsche Bank AG, London Branch, paying $200 million for an initial approximately 4.48 million common shares; final settlement is expected no later than December 31, 2026. AI summary
Items reported
- Item 1.01: Entered into a material agreement
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): October 30, 2026
(Exact Name of Registrant as Specified in its Charter)
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(State or Other Jurisdiction of Incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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(Address of principal executive offices, including zip code)
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(407 ) 722-3100
(Registrant’s Telephone Number, Including Area Code)
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following
provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2
of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised
financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 1.01 |
Entry into a Material Definitive Agreement
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On October 30, 2026, Hilton Grand Vacations Inc. (the “Company”) entered into an uncollared accelerated share repurchase transaction (the “ASR Transaction”) with Deutsche
Bank AG, London Branch (the “Dealer”), with Deutsche Bank Securities Inc. acting as agent, pursuant to a Master Confirmation and related Supplemental Confirmation (together, the “ASR Agreement”), to repurchase an aggregate of $200 million of the
Company’s common stock, par value $0.01 per share (the “Common Stock”). The ASR Transaction is being conducted pursuant to the Company’s publicly announced share repurchase program authorized by its Board of Directors.
Under the terms of the ASR Agreement, on October 30, 2026, the Company will pay the Dealer $200 million and will receive from the Dealer an initial
delivery of approximately 4.48 million shares of Common Stock. The final number of shares of Common Stock to be repurchased under the ASR Agreement will be based on volume-weighted average price of the Common Stock during the calculation period
of the ASR Transaction, less a discount and subject to adjustments pursuant to the terms of the ASR Agreement. At final settlement, the Dealer may be required to deliver additional shares of Common Stock to the Company or, under certain
circumstances, the Company may be required to deliver shares of Common Stock or, at its election, make a cash payment to the Dealer. Final settlement of the ASR Transaction is expected to occur no later than December 31, 2026, subject to the
Dealer’s right to accelerate the scheduled termination date, in whole or in part, on or after December 1, 2026.
The ASR Agreement is subject to certain customary adjustments and termination provisions. In addition, upon the occurrence of certain extraordinary events, the Dealer may
terminate the ASR Agreement, in which case the Company may receive fewer shares of Common Stock than expected.
The Dealer and its affiliates are full-service financial institutions that have engaged in, or may in the future engage in, investment banking, commercial banking and
other commercial dealings in the ordinary course of business with the Company and its affiliates, for which they have received, or may in the future receive, customary fees and commissions.
The foregoing description of the ASR Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the form of ASR
Agreement, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.
| Item 9.01 |
Financial Statements and Exhibits.
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(d) Exhibits
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Exhibit No.
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Description
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Form of Master Confirmation—Uncollared Accelerated Share Repurchase.
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104
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Cover page Interactive Data File (embedded with the Inline XBRL document).
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
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HILTON GRAND VACATIONS INC.
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By:
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/s Charles R. Corbin
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Charles R. Corbin
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Senior Executive Vice President, General Counsel & Corporate Operations
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Date: October 30, 2026
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Exhibit 10.1
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Deutsche Bank
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Deutsche Bank AG, London Branch
21 Moorfields, London EC2Y 9DB
Telephone: 44 20 7545 8000
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c/o Deutsche Bank Securities Inc.
1 Columbus Circle
New York, NY 10019
Telephone: 212-250-2500
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| Internal Reference: [_____] | |
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October 30, 2026
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To:
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Hilton Grand Vacations Inc.
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5323 Millenia Lakes Boulevard
Orlando, Florida 32839
Attn: Ben Loper
Email: [_____]
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Re:
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Master Confirmation— Uncollared Accelerated Share Repurchase
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This master confirmation (this “Master Confirmation”), dated as of October 30, 2026, is intended to set forth certain terms and provisions of certain
Transactions (each, a “Transaction”) entered into from time to time between Deutsche Bank AG, London Branch (“Dealer”), with Deutsche Bank Securities Inc. acting as
agent (“Agent”), and Hilton Grand Vacations Inc (“Issuer” or “Counterparty”). This Master Confirmation, taken alone, is neither
a commitment by either party to enter into any Transaction nor evidence of a Transaction. The additional terms of any particular Transaction shall be set forth in a Supplemental Confirmation in the form of Schedule A hereto (a “Supplemental Confirmation”), which shall reference this Master Confirmation and supplement, form a part of, and be subject to this Master Confirmation. This Master Confirmation and each Supplemental Confirmation
together shall constitute a “Confirmation” as referred to in the Agreement specified below.
DEUTSCHE BANK AG, LONDON BRANCH IS NOT REGISTERED AS A BROKER DEALER UNDER THE U.S. SECURITIES EXCHANGE ACT OF 1934. DEUTSCHE BANK SECURITIES INC. HAS ACTED SOLELY AS AGENT IN
CONNECTION WITH THE TRANSACTION AND HAS NO OBLIGATION, BY WAY OF ISSUANCE, ENDORSEMENT, GUARANTEE OR OTHERWISE WITH RESPECT TO THE PERFORMANCE OF EITHER PARTY UNDER THE TRANSACTION. AS SUCH, ALL DELIVERY OF FUNDS, ASSETS, NOTICES, DEMANDS AND
COMMUNICATIONS OF ANY KIND RELATING TO THIS TRANSACTION BETWEEN DEUTSCHE BANK AG, LONDON BRANCH, AND COUNTERPARTY SHALL BE TRANSMITTED EXCLUSIVELY THROUGH DEUTSCHE BANK SECURITIES INC. DEUTSCHE BANK AG, LONDON BRANCH IS NOT A MEMBER OF THE
SECURITIES INVESTOR PROTECTION CORPORATION (SIPC).
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., are incorporated into this Master Confirmation. This Master Confirmation and each Supplemental Confirmation evidence a complete binding agreement between Counterparty and Dealer as to the subject matter and terms
of each Transaction to which this Master Confirmation and such Supplemental Confirmation relate and shall supersede all prior or contemporaneous written or oral communications with respect thereto.
This Master Confirmation and each Supplemental Confirmation supplement, form a part of, and are subject to an agreement in the form of the 2002 ISDA Master Agreement (the “Agreement”) as if Dealer and Counterparty had executed the Agreement on the date of this Master Confirmation (but without any Schedule except for (i) the election of New York law as the governing law (without reference to its choice
of law provisions), (ii) the election that the “Cross Default” provisions of Section 5(a)(vi) shall apply to Dealer as if (A) the “Threshold Amount” with respect to Dealer were equal to 3% of Dealer’s shareholders’
equity as of the Trade Date, (B) the phrase “, or becoming capable at such time of being declared,” in Section 5(a)(vi)(1) were deleted, (C) “Specified Indebtedness” had the meaning specified in Section 14 of the Agreement, except that such term
shall not include obligations in respect of deposits received in the ordinary course of Dealer’s banking business and (D) the following language were added to the end of Section 5(a)(vi): “Notwithstanding the foregoing, a default under subsection
(2) hereof shall not constitute an Event of Default if (x) the default was caused solely by error or omission of an administrative or operational nature, (y) funds were available to enable Dealer to make the payment when due, and (z) the payment is
made within two Local Business Days after notice of such failure is given by the other party”, and (iii) the elections set forth in this Confirmation.
The Transactions shall be the sole Transactions under the Agreement. If there exists any ISDA Master Agreement between Dealer and Counterparty or any confirmation or other agreement between Dealer
and Counterparty pursuant to which an ISDA Master Agreement is deemed to exist between Dealer and Counterparty, then notwithstanding anything to the contrary in such ISDA Master Agreement, such confirmation or agreement or any other agreement to
which Dealer and Counterparty are parties, the Transactions shall not be considered Transactions under, or otherwise governed by, such existing or deemed ISDA Master Agreement.
All provisions contained or incorporated by reference in the Agreement shall govern this Master Confirmation and each Supplemental Confirmation except as expressly modified herein or in the related
Supplemental Confirmation.
If, in relation to any Transaction to which this Master Confirmation and a Supplemental Confirmation relate, there is any inconsistency between the Agreement, this Master Confirmation, any
Supplemental Confirmation and the Equity Definitions, the following will prevail for purposes of such Transaction in the order of precedence indicated: (i) such Supplemental Confirmation; (ii) this Master Confirmation; (iii) the Equity Definitions;
and (iv) the Agreement.
1. Each Transaction constitutes a Share Forward Transaction for the purposes of the Equity Definitions. Set forth below are the terms and conditions that, together with the terms and conditions set forth
in the Supplemental Confirmation relating to any Transaction, shall govern such Transaction.
| General Terms: | ||
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Trade Date:
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For each Transaction, as set forth in the related Supplemental Confirmation.
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Buyer:
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Counterparty
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Seller:
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Dealer
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Shares:
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Common stock, par value USD 0.01 per share, of Counterparty (Ticker: HGV US Equity)
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Exchange:
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New York Stock Exchange
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Related Exchange(s):
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All Exchanges
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Prepayment\Variable
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Obligation:
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Applicable
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Prepayment Amount:
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For each Transaction, as set forth in the related Supplemental Confirmation.
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Prepayment Date:
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For each Transaction, as set forth in the related Supplemental Confirmation.
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Valuation:
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VWAP Price:
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For any Exchange Business Day, the Rule 10b-18 volume-weighted average price at which the Shares trade for the regular trading session (including any extensions thereof) of the Exchange on such Exchange
Business Day (without regard to pre-open or after hours trading outside of such regular trading session for such Exchange Business Day), as published by Bloomberg at 4:15 p.m. (New York City time) (or 15 minutes following the end of any
extension of the regular trading session) on Bloomberg Page “HGV US <Equity> AQR SEC” (or any successor thereto), absent manifest error or unavailability of such page or a successor thereto, in which case the Calculation Agent shall
determine the VWAP Price for such Exchange Business Day using a volume-weighted methodology (if practicable).
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Forward Price:
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For each Transaction, the arithmetic average of the VWAP Prices for the Exchange Business Days in the Calculation Period for such Transaction, subject to “Valuation
Disruption” below.
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Forward Price
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Adjustment Amount:
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For each Transaction, as set forth in the related Supplemental Confirmation.
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Calculation Period:
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For each Transaction, the period from, and including, the Calculation Period Start Date for such Transaction to, and including, the Termination Date for such Transaction.
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For each Transaction, as set forth in the related Supplemental Confirmation.
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Termination Date:
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For each Transaction, the earlier of (i) the Scheduled Termination Date for such Transaction and (ii) any earlier Acceleration Date as a result of Dealer’s election in
accordance with the immediately succeeding paragraph.
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Dealer shall have the right, in its absolute discretion, to designate any Exchange Business Day prior to the Scheduled Termination Date and on or after the First Acceleration Date to be the Termination Date
for the whole Transaction or a Termination Date for only a part thereof by delivering notice (each such notice, an “Acceleration Notice”) to Counterparty of any such designation prior to 9:00 p.m. New
York City time on the Exchange Business Day immediately following the accelerated Termination Date (the “Acceleration Date”). Dealer shall specify in each Acceleration Notice the portion of the
Prepayment Amount that is subject to acceleration (which amount shall not be less than 25% of the Prepayment Amount (or, if less, the remainder of the Prepayment Amount for which an Acceleration Notice has yet to be delivered)). If the
portion of the Prepayment Amount that is subject to acceleration is less than the full remaining Prepayment Amount, then the Calculation Agent shall make, in a commercially reasonable manner, such mechanical or administrative adjustments to
the terms of the Transaction as appropriate in order to take into account the occurrence of such Acceleration Date (including cumulative adjustments to take into account all prior Acceleration Dates).
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Scheduled Termination Date:
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For each Transaction, as set forth in the related Supplemental Confirmation, subject to postponement as provided in “Valuation Disruption” below.
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First Acceleration Date:
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For each Transaction, as set forth in the related Supplemental Confirmation.
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Valuation Disruption:
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The definition of “Market Disruption Event” in Section 6.3(a) of the Equity Definitions is hereby amended by deleting the words “at any time during the one-hour period that ends at the relevant Valuation
Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be” and inserting the words “at any time on any Scheduled Trading Day during the Calculation Period or Settlement Valuation Period” after the
word “material,” in the third line thereof.
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3
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Settlement Terms:
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Settlement Procedures:
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For each Transaction:
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(i) if the Number of Shares to be Delivered for such Transaction is positive, Physical Settlement shall be applicable to such Transaction; provided that Dealer does not, and shall not, make the agreement or the representations set forth in Section 9.11 of the Equity Definitions related to the restrictions imposed by applicable securities laws with respect to
any Shares delivered by Dealer to Counterparty under any Transaction; or
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(ii) if the Number of Shares to be Delivered for such Transaction is negative, then the Counterparty Settlement Provisions in Annex A hereto shall apply to such
Transaction.
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Number of Shares
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to be Delivered:
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For each Transaction, a number of Shares equal to (1)(a) the Prepayment Amount for such Transaction divided by (b) the greater of (x) (i) the Forward Price for such
Transaction minus (ii) the Forward Price Adjustment Amount for such Transaction and (y) USD 1.00 minus (2) the number of Initial Shares for such Transaction.
Notwithstanding Section 9.2 of the Equity Definitions, the Number of Shares to be Delivered shall be rounded down to the nearest whole number of Shares and no Fractional Share Amounts shall be delivered.
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Excess Dividend Amount:
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For the avoidance of doubt, all references to the Excess Dividend Amount shall be deleted from Section 9.2(a)(iii) of the Equity Definitions.
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Settlement Date:
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For each Transaction, if the Number of Shares to be Delivered for such Transaction is positive, the date that is one Settlement Cycle immediately following the Termination Date for such Transaction or, if
applicable, the date on which notice of an Acceleration Date in respect of such Transaction is provided to Counterparty.
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Settlement Currency:
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Initial Share Delivery:
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For each Transaction, Dealer shall deliver a number of Shares equal to the Initial Shares for such Transaction to Counterparty on the Initial Share Delivery Date for such
Transaction in accordance with Section 9.4 of the Equity Definitions, with such Initial Share Delivery Date deemed to be a “Settlement Date” for purposes of such Section 9.4.
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Initial Share Delivery Date:
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For each Transaction, as set forth in the related Supplemental Confirmation.
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Initial Shares:
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For each Transaction, as set forth in the related Supplemental Confirmation.
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Share Adjustments:
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Potential Adjustment Event:
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Notwithstanding anything to the contrary in Section 11.2(e) of the Equity Definitions, an Excess Dividend shall not constitute a Potential Adjustment Event.
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It shall constitute an additional Potential Adjustment Event if the Scheduled Termination Date for any Transaction is postponed pursuant to “Valuation Disruption” above; provided
that the parties agree that purchases pursuant to any Permitted OMR Transaction shall not be considered a Potential Adjustment Event. In the event of a “Valuation Disruption”, the Calculation Agent shall, in its good faith,
commercially reasonable discretion adjust any relevant terms of any such Transaction as necessary to preserve as nearly as practicable the fair value of such Transaction prior to such postponement (taking into consideration any postponement
pursuant to the language opposite the caption “Valuation Disruption” above).
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5
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Excess Dividend:
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For any Transaction, for any calendar quarter, any dividend or distribution on the Shares with an ex-dividend date occurring during such calendar quarter (other than any dividend or distribution of the type
described in Section 11.2(e)(i) or Section 11.2(e)(ii)(A) of the Equity Definitions) (a “Dividend”) the amount or value of which per Share (as determined by the Calculation Agent), when aggregated
with the amount or value (as determined by the Calculation Agent) of any and all previous Dividends with ex-dividend dates occurring in the same calendar quarter, exceeds the Ordinary Dividend Amount for such Transaction.
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Consequences of Excess
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Dividend:
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For any Transaction, the declaration by the Issuer of any Excess Dividend, the ex-dividend date for which occurs or is scheduled to occur during the Relevant Dividend Period for such Transaction, will
constitute an Additional Termination Event, with Counterparty as the sole Affected Party and such Transaction as the Affected Transaction. For the avoidance of doubt, the amount payable in connection with an Additional Termination Event as
a result of an Excess Dividend for any Transaction pursuant to the immediately preceding sentence shall be determined without regard to the difference between actual dividends and expected dividends as of the Trade Date for such
Transaction.
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Ordinary Dividend Amount:
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For each Transaction, as set forth in the related Supplemental Confirmation
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Method of Adjustment:
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Calculation Agent Adjustment
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Early /Late Ordinary Dividend
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Payment:
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If an ex-dividend date for any Dividend that is not an Excess Dividend occurs during any calendar quarter occurring (in whole or in part) during the Relevant Dividend Period (as defined below) for any
Transaction and is not on the Scheduled Ex-Dividend Date for such calendar quarter, the Calculation Agent shall make, in a commercially reasonable manner, such adjustment to the exercise, settlement, payment or any other terms of the
relevant Transaction as the Calculation Agent determines appropriate to account for the economic effect on such Transaction of such event.
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Scheduled Ex-Dividend
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Dates:
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For each Transaction for each calendar quarter, as set forth in the related Supplemental Confirmation.
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Relevant Dividend Period:
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For each Transaction, the period from, and including, the Calculation Period Start Date for such Transaction to, and including, the Relevant Dividend Period End Date for such Transaction.
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Relevant Dividend Period
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End Date:
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For each Transaction, if Annex A applies, the last day of the Settlement Valuation Period for such Transaction; otherwise, the Termination Date for such Transaction.
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| Extraordinary Events: | ||
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Consequences of
Merger Events:
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(a)
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Share-for-Share:
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Modified Calculation Agent Adjustment
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(b)
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Share-for-Other:
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Cancellation and Payment
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(c)
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Share-for-Combined:
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Component Adjustment
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| Tender Offer: | Applicable; provided that Section 12.1(d) of the Equity Definitions shall be amended by replacing “10%” in the third line thereof with “20%”. | |
| Consequences of | ||
| Tender Offers: |
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(a)
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Share-for-Share:
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Modified Calculation Agent Adjustment
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(b)
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Share-for-Other:
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Modified Calculation Agent Adjustment
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(c)
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Share-for-Combined:
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Modified Calculation Agent Adjustment
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Nationalization,
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Insolvency or Delisting:
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Cancellation and Payment; provided that in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it shall also constitute a Delisting if the
Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, the NYSE MKT, the NASDAQ Global Select Market or the NASDAQ Global Market (or their
respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any such exchange or quotation system, such exchange or quotation system shall be deemed to be the Exchange.
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Additional Disruption Events:
7
| (b) |
Failure to Deliver: | Applicable |
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(c)
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Insolvency Filing:
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Applicable
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(d)
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Loss of Stock Borrow:
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Applicable
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Maximum Stock Loan Rate:
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200 basis points per annum
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(e)
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Increased Cost of Hedging:
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Applicable solely with respect to a “Change in Law” described in clause (Y) of Section 12.9(a)(ii) of the Equity Definitions as set forth in the last sentence opposite the caption “Change in Law” above; provided that any determination by Dealer as to the occurrence of an Increased Cost of Hedging under any Transaction shall be made in a non-discriminatory commercially reasonable manner across all
accelerated share repurchase transactions similar to the Transactions with counterparties similar to Counterparty to which Dealer (or an affiliate thereof) is a party.
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(f)
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Increased Cost of Stock Borrow:
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Applicable
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25 basis points per annum
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Hedging Party:
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Determining Party:
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For all applicable events, Dealer.
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Hedging Adjustments:
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For the avoidance of doubt, whenever the Calculation Agent is called upon to make an adjustment pursuant to the terms of this Master Confirmation or the Equity Definitions to take into account the effect of
an event, the Calculation Agent shall make such adjustment by reference to the effect of such event on Dealer, assuming that Dealer maintains a commercially reasonable Hedge Position.
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Non-Reliance/Agreements and
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Acknowledgements Regarding
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Hedging Activities/Additional
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8
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Acknowledgements:
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Applicable
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Counterparty Delivery
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Instructions:
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To be provided by Counterparty.
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Dealer Payment Instructions:
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Bank: [_____]
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ABA: [_____]
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SWIFT (BIC): [_____]
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Acct. No: [_____]
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Acct. Name: [_____]
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Bank Code Value: [_____]
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Account for delivery of Shares
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to Dealer:
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United States
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Deutsche Bank Securities Inc.
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Sub Agent BIC: [_____]
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Inst/Broker ID: [_____]
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Agent ID: [_____]
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DTC Participant ID: [_____]
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Counterparty’s Contact Details
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for Purpose of Giving Notice:
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To be provided by Counterparty.
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Dealer’s Contact Details for
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Purpose of Giving Notice:
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Deutsche Bank AG, London Branch
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c/o Deutsche Bank Securities Inc.
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1 Columbus Circle
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New York, New York 10019
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Attention: Diana Nott
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Telephone No.: [_____]
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Email: [_____]
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and
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Attention: Joachim Sciard
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Telephone No.: [_____]
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Email: [_____]
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With a copy to: equity-linked.notifications@list.db.com
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2. Calculation Agent. Dealer. Whenever the Calculation Agent is required to act or to exercise judgment in any way with respect to any Transaction
hereunder, it will do so in good faith and in a commercially reasonable manner. Following the occurrence and during the continuation of an Event of Default pursuant to Section 5(a)(vii)
of the Agreement with respect to which Dealer is the Defaulting Party, Counterparty shall have the right to designate an independent, nationally recognized equity derivatives dealer to replace Dealer as Calculation Agent, and the parties shall work
in good faith to execute any appropriate documentation required by such replacement Calculation Agent. Following any determination, adjustment or calculation by the Calculation Agent, the Hedging Party or the
Determining Party hereunder, the Calculation Agent, the Hedging Party or the Determining Party, as the case may be, will within five Exchange Business Days of a request by Counterparty,
provide to Counterparty a report (in a commonly used file format for the storage and manipulation of financial data without disclosing any proprietary or confidential models or other information that is subject to contractual, legal or regulatory
obligations to not disclose such information) displaying in reasonable detail the basis for such determination, adjustment or calculation, as the case may be.
3. Additional Mutual Representations, Warranties and Covenants of Each Party. In addition to the representations, warranties and covenants in the Agreement, each party represents, warrants and
covenants to the other party that:
9
(a) Eligible Contract Participant. It is an “eligible contract participant”, as defined in the U.S. Commodity Exchange Act (as amended), and is entering into each Transaction
hereunder as principal (and not as agent or in any other capacity, fiduciary or otherwise) and not for the benefit of any third party.
(b) Accredited Investor. Each party acknowledges that the offer and sale of each Transaction to it is intended to be exempt from registration under the Securities Act of 1933, as
amended (the “Securities Act”), by virtue of Section 4(a)(2) thereof. Accordingly, each party represents and warrants to the other that (i) it has the financial ability to bear the economic risk of its
investment in each Transaction and is able to bear a total loss of its investment, (ii) it is an “accredited investor” as that term is defined under Regulation D under the Securities Act and (iii) the disposition of each Transaction is restricted
under this Master Confirmation, the Securities Act and state securities laws.
4. Additional Representations, Warranties and Covenants of Counterparty. In addition to the representations, warranties and covenants in the Agreement, Counterparty represents, warrants and covenants
to Dealer as of the Trade Date and the Prepayment Date for each Transaction:
(a) It is not entering into any Transaction (i) on the basis of, and is not aware of, any material non-public information regarding Counterparty or the Shares, (ii) in anticipation of, in
connection with, or to facilitate, a distribution of its securities, a self-tender offer or a third-party tender offer or (iii) 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) in violation of the Exchange Act. It agrees not to alter or deviate from the terms of this
Confirmation or enter into or alter a corresponding or hedging transaction or position with respect to the Shares (including, without limitation, with respect to any securities convertible or exchangeable into the Shares) during the term of this
Confirmation. Without limiting the generality of the foregoing, all reports and other documents filed by Issuer with the Securities and Exchange Commission pursuant to the Exchange Act when considered as a whole (with the more recent such reports
and documents deemed to amend inconsistent statements contained in any earlier such reports and documents) do not contain any untrue statement of a material fact or any omission of a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances in which they were made, not misleading.
(b) Each Transaction is duly authorized and is being entered into pursuant to a publicly disclosed Share buy-back program authorized by its Board of Directors prior to the Trade Date.
(c) Without limiting the generality of Section 13.1 of the Equity Definitions, Counterparty 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 any 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.
(d) The Shares are not, and Counterparty will not cause the Shares to be, subject to a “restricted period” (as defined in Regulation M promulgated under the Exchange Act) at any time
during any Regulation M Period (as defined below) for any Transaction unless Counterparty has provided written notice to Dealer of such restricted period not later than the Scheduled Trading Day immediately preceding the first day of such
“restricted period.” Counterparty acknowledges that any such notice may cause a Disrupted Day to occur pursuant to Section 6 below. Accordingly, Counterparty acknowledges that its delivery of such notice must comply with the standards set forth in
Section 7 below. “Regulation M Period” means, for any Transaction, (i) the Relevant Period (as defined below), (ii) the Settlement Valuation Period, if any, for such Transaction and (iii) the Seller
Termination Purchase Period (as defined below), if any, for such Transaction. “Relevant Period” means, for any Transaction, the period commencing on the Calculation Period
Start Date for such Transaction and ending on the Scheduled Termination Date for such Transaction or, if earlier, (x) the Termination Date for such Transaction, (y) the Early Termination Date for such Transaction or (z) if the Transaction
is cancelled pursuant to Article 12 of the Equity Definitions, a date determined by Dealer in its commercially reasonable discretion and communicated to Counterparty no later than the Exchange Business Day immediately following such date (or, in
the absence of such communication, the date that is five Exchange Business Days immediately following such date).
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(e) It is not “insolvent” (as such term is defined under Section 101(32) of the U.S. Bankruptcy Code (Title
11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares with a value equal to the Prepayment Amount in compliance with the laws of the jurisdiction
of Counterparty’s incorporation.
(f) It is not and, after giving effect to any Transaction, will not be, required to register as an “investment company” as such term is defined in the
Investment Company Act of 1940, as amended.
(g) It has not entered, and will not enter, into agreements similar to the Transactions described herein where any initial hedge period, calculation period,
relevant period, settlement valuation period or seller termination purchase period (each however defined) in such other transaction will overlap at any time (including as a result of extensions in such initial hedge period, calculation period,
relevant period, settlement valuation period or seller termination purchase period as provided in the relevant agreements) with any Relevant Period or, if applicable, any Settlement Valuation Period or any Seller Termination Purchase Period under
this Master Confirmation, except with the consent of Dealer or as provided in the Supplemental Confirmation for any Transaction. In the event that the initial hedge period, relevant period, calculation period, settlement valuation period or seller
termination purchase period in any other similar transaction overlaps with any Relevant Period or, if applicable, any Settlement Valuation Period or any Seller Termination Purchase Period under this Master Confirmation as a result of any
postponement of the Scheduled Termination Date or extension of the Settlement Valuation Period pursuant to “Valuation Disruption” above, Counterparty shall promptly amend such transaction to avoid any such overlap.
(h) It (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
50,000,000 as of the date hereof.
(i) It is not entering into the Transaction or making any election hereunder in anticipation of, in connection with, or to facilitate a distribution of the Shares (or any security
convertible into or exchangeable for Shares), a self-tender offer or a third-party tender offer or in connection with a future issuance of securities.
(j) There have been no purchases of Shares in Rule 10b-18 purchases of blocks pursuant to the once-a-week block exception contained in Rule 10b-18(b)(4) by or for Counterparty or any of its
affiliated purchasers during each of the four calendar weeks preceding a Trade Date and during the calendar week in which a Trade Date occurs (“Rule 10b-18 purchase”, “blocks” and “affiliated purchaser” each as defined in Rule 10b-18).
(k) No state or local (including non-U.S. jurisdictions) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other
requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares.
5. It shall constitute an Additional Termination Event with respect to which the Transaction is the sole Affected Transaction and Issuer is the sole Affected Party if, at any time on or prior to the final
Termination Date, the price per Share on the Exchange, as determined by the Calculation Agent, is at or below the Threshold Price (as specified in Schedule A).
6. Regulatory Disruption. In the event that Dealer concludes, in its commercially reasonable discretion based on advice of counsel, that it is appropriate or advisable with respect to any legal,
regulatory or self-regulatory requirements or related policies and procedures similarly applicable to transactions of the type of the Transaction contemplated hereby and consistently applied (whether or not such requirements, policies or procedures
are imposed by law or have been voluntarily adopted by Dealer) similarly applicable to accelerated share repurchase transactions, issuer share repurchase transactions, and other
transaction involving compliance with Rule 10b-18, Rule 10b-5, Regulations 13D-G and Regulations 14DE, each under the Exchange Act and consistently applied, for it to refrain from purchasing Shares or engaging in other market activity or to
purchase fewer than the number of Shares or to engage in fewer or smaller other market transactions than Dealer would otherwise purchase or engage in to maintain, establish or unwind a commercially reasonable hedge position on any Scheduled Trading
Day(s) during the Calculation Period or, if applicable, the Settlement Valuation Period, Dealer may by written notice to Counterparty elect to deem that a Market Disruption Event has occurred and will be continuing on such Scheduled Trading Day(s).
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7. 10b5-1 Plan. Counterparty represents, warrants and covenants to Dealer that:
(a) Counterparty is entering into this Master Confirmation and each Transaction hereunder in good faith, and shall act during the term of each Transaction in good faith, and not as part of
a plan or scheme to evade the prohibitions of Rule 10b5-1 under the Exchange Act (“Rule 10b5-1”) or
any other antifraud or anti-manipulation provisions of the federal or applicable state securities laws and that it has not entered into or altered and will not enter into or alter any corresponding or hedging transaction or position with respect to
the Shares. For the avoidance of doubt, the parties hereto acknowledge that entry into any Permitted OMR Transaction shall not fall within the ambit of the previous sentence. Counterparty acknowledges that it is the intent of the parties that each
Transaction entered into under this Master Confirmation comply with the requirements of paragraphs (c)(1)(i)(A) and (B) of Rule 10b5-1 and each Transaction entered into under this Master Confirmation shall be
interpreted to comply with the requirements of Rule 10b5-1(c) and Counterparty shall not take any action that results in a Transaction not so complying with such requirements.
(b) During the Calculation Period and, if applicable, the Settlement Valuation Period for any Transaction and in connection
with the delivery of any Alternative Delivery Units for any Transaction, Dealer (or its agent or affiliate) may effect transactions in Shares in connection with such Transaction. The timing of such transactions by Dealer, the price paid or
received per Share pursuant to such transactions and the manner in which such transactions are made, including, without limitation, whether such transactions are made on any securities exchange or privately, shall be within the sole judgment of
Dealer. Counterparty acknowledges and agrees that all such transactions shall be made in Dealer’s sole judgment and for Dealer’s own account.
(c) Counterparty will not seek to control or influence Dealer’s decision to effect market transactions or to make
any “purchases or sales” (within the meaning of Rule 10b5-1(c)(1)(i)(B)(3)) under any Transaction entered into under this Master Confirmation, including, without limitation, Dealer’s decision to enter
into any hedging transactions and neither Counterparty nor its officers or employees shall, directly or indirectly, communicate any information regarding Counterparty or the Shares to any employee of Dealer or its Affiliates, other than
employees identified by Dealer to Counterparty in writing as employees not responsible for executing market transactions in connection with the Transaction. Counterparty represents and warrants that it has
consulted with its own advisors as to the legal aspects of its adoption and implementation of this Master Confirmation and each Supplemental Confirmation under Rule 10b5-1.
(d) Counterparty acknowledges and agrees that any amendment, modification, waiver or termination of this Master Confirmation or the relevant Supplemental Confirmation must be effected in
accordance with the requirements for the amendment or termination of a “plan” as defined in Rule 10b5-1(c). Without limiting the generality of the foregoing, any such amendment, modification, waiver or termination shall be made in good faith and
not as part of a plan or scheme to evade the prohibitions of Rule 10b-5, and no such amendment, modification, waiver or termination shall be made at any time at which Counterparty is aware of any material non-public information regarding
Counterparty or the Shares.
(e) Counterparty acknowledges and agrees that the Initial Shares may be sold short to Counterparty for any Transaction and Dealer may purchase Shares in connection with a Transaction, which
Shares may be used to cover all or a portion of such short sale or may be delivered to Counterparty. Such purchases and any other market activity by Dealer will be conducted independently of Counterparty by Dealer as principal for its own account.
All of the actions to be taken by Dealer in connection with any Transaction shall be taken by Dealer independently and without any advance or subsequent consultation with Counterparty.
8. Purchases.
(a) Counterparty (or any “affiliated purchaser” as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) shall not, without the prior written
consent of Dealer, directly or indirectly purchase, offer to purchase, place any bid or limit order relating to a purchase of or commence any tender offer relating to any Shares or any security convertible into or exchangeable or exercisable for
Shares (including by means of a cash-settled or other derivative instrument or structured Share repurchase or listed contracts on the Shares) including, without limitation, any Rule 10b-18 purchases of blocks (as defined in Rule 10b-18) during any
Relevant Period or, if applicable, any Settlement Valuation Period or any Seller Termination Purchase Period.
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Notwithstanding the foregoing or anything herein to the contrary, (i) Counterparty may purchase Shares on any Scheduled Trading Day pursuant to a Rule 10b5-1 or Rule 10b-18 repurchase plan entered into with Dealer or
an affiliate of Dealer, so long as, on any Scheduled Trading Day, purchases under all such repurchase plans do not in the aggregate exceed 1% of the ADTV (as defined in Rule 10b-18(a)(1)) (any transaction described in this clause (i), a “Permitted OMR Transaction”), (ii) an agent independent of Counterparty may purchase Shares effected by or for an issuer plan of Issuer in accordance with the requirements of Section 10b-18(a)(13)(ii) under the
Exchange Act (with “issuer plan” and “agent independent of the Counterparty” each being used herein as defined in Rule 10b-18) and (iii) Counterparty or any “affiliated purchaser” (as defined in Rule 10b-18) may purchase Shares in (x) unsolicited
transactions or (y) privately negotiated (off-market) transactions, in each case, that are not expected to result in market purchases, in each case, without Dealer’s consent.
Further, nothing herein shall (i) limit Counterparty’s ability, pursuant to its employee incentive plans, to re-acquire Shares in connection with the related equity transactions, (ii) limit Counterparty’s ability to
withhold shares to cover tax liabilities associated with such equity transactions or (iii) limit Counterparty’s ability to grant stock, restricted stock units and options to “affiliated purchasers” (as defined in Rule 10b-18) or the ability of such
affiliated purchasers to acquire such stock, restricted stock units or options, in connection with the Counterparty’s compensation policies for directors, officers and employees and in connection with such purchase Counterparty will be deemed to
represent to Dealer that such purchase does not constitute a “Rule 10b-18 Purchase” (as defined in Rule 10b-18).
(b) During the Relevant Period, any Settlement Valuation Period and any Seller Termination Purchase Period for any
Transaction, Dealer shall, or, in the case of purchases made by its affiliate, shall cause such affiliate to, use good faith, commercially reasonable efforts to effect any purchases of Shares made by Dealer or any of its affiliates in connection
with such Transaction entered into under this Master Confirmation (other than purchases made by Dealer or any affiliate thereof as part of its dynamic adjustment of its hedge of the options, including the duration option, embedded in such
Transaction) in a manner that, if such purchases were made by Counterparty, would meet the requirements of paragraphs (b)(1), (2), (3) and (4) of Rule 10b-18 (taking into account any applicable Securities and Exchange Commission or the staff of
the Securities and Exchange Commission no-action letters or interpretations as appropriate and subject to any delays between execution and reporting of a trade of the Shares on the applicable securities exchange or quotation system and other
circumstances reasonably beyond Dealer’s or such affiliate’s control). Notwithstanding the foregoing, Dealer shall not be responsible for any failure to comply with (i) paragraph (b)(1) of Rule 10b-18 to the extent that Counterparty has failed
to comply with Section 8(a) hereof or (ii) paragraph (b)(3) of Rule 10b-18 that would not have resulted if (i) a bid that was actually entered or deemed to be entered by or on behalf of Counterparty had instead been an “independent bid” for
purposes of paragraph (b)(3) of Rule 10b-18, or (ii) a transaction that was actually executed or deemed to be executed by or on behalf of Counterparty had instead been an “independent transaction” within the meaning of paragraph (b)(3) of Rule
10b-18.
9. Special Provisions for Merger Transactions. Notwithstanding anything to the contrary herein or in the Equity Definitions:
(a) Counterparty agrees that it:
(i) will not during the term of a Transaction make, or permit to be made (to the extent within Counterparty’s control and after using commercially reasonable efforts), any public
announcement (as defined in Rule 165(f) under the Securities Act) of any Merger Transaction (a “Public Announcement”) unless such Public Announcement is made prior to the opening or after the close of the
regular trading session on the Exchange for the Shares;
(ii) in respect of any Public Announcement that is within Counterparty’s control, shall promptly (but in any event prior to the next opening of the regular trading session on the Exchange)
notify Dealer following any such Public Announcement that such Public Announcement has been made; and
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(iii) shall promptly (but in any event prior to the next opening of the regular trading session on the Exchange) provide Dealer with written notice specifying (i)
Counterparty’s average daily Rule 10b-18 Purchases (as defined in Rule 10b-18) during the three full calendar months immediately preceding the date of any Public Announcement that were not effected through Dealer or its affiliates and (ii) the
number of Shares purchased pursuant to the proviso in Rule 10b-18(b)(4) under the Exchange Act for the three full calendar months preceding the date of such Public Announcement. Such written notice shall be deemed to be a certification by
Counterparty to Dealer that such information is true and correct. Counterparty understands that Dealer will use this information in calculating the trading volume for purposes of Rule 10b-18. In addition, Counterparty shall promptly notify Dealer
of the earlier to occur of the completion of the relevant Merger Transaction and the completion of the vote by target shareholders.
(b) Counterparty acknowledges that a Public Announcement or delivery of a notice with respect thereto may cause the terms of any Transaction to be adjusted. Accordingly, Counterparty
acknowledges that its delivery of such notice must comply with the standards set forth in Section 7 above.
(c) Upon the occurrence of any Public Announcement (whether made by Counterparty or a third party), the Calculation Agent shall in its good faith, commercially reasonable discretion make
adjustments to the terms of any Transaction, including, without limitation, the Scheduled Termination Date or the Forward Price Adjustment Amount, to account for the economic effect of the Public Announcement on the theoretical value of such
Transaction (including without limitation any change in volatility, stock loan rate or liquidity relevant to the Shares or to such Transaction), and/or suspend the Calculation Period and/or any Settlement Valuation Period.
“Merger Transaction” means any merger, acquisition or similar transaction involving a recapitalization as contemplated by Rule 10b-18(a)(13)(iv) under the
Exchange Act.
10. Special Provisions for Acquisition Transaction Announcements. (a) If an Acquisition Transaction Announcement occurs on or prior to the Settlement Date for any Transaction, then the Calculation
Agent shall make such adjustments to the exercise, settlement, payment or any other terms of such Transaction as the Calculation Agent determines appropriate in its good faith, commercially reasonable discretion (including, without limitation and
for the avoidance of doubt, adjustments that would allow the Number of Shares to be Delivered or Forward Cash Settlement Amount, as applicable, to be less than zero), at such time or at multiple times as the Calculation Agent determines appropriate
in its good faith, commercially reasonable discretion, to account for the economic effect on such Transaction of such event (including adjustments to account for changes in volatility, expected dividends, stock loan rate, value of any commercially
reasonable Hedge Positions in connection with such Transaction and liquidity relevant to the Shares or to such Transaction).
(b) “Acquisition Transaction Announcement” means (i) the announcement of an Acquisition Transaction by Counterparty or any of its subsidiaries or any
other person that is a party to such Acquisition Transaction, (ii) an announcement that Counterparty or any of its subsidiaries has entered into an agreement, a letter of intent or an understanding that is reasonably likely to result in an
Acquisition Transaction by Counterparty or any of its subsidiaries or any other party that is a party to such agreement or letter of intent, (iii) the announcement by Counterparty of the intention to solicit or enter into, or to explore strategic
alternatives or other similar undertaking that in the Calculation Agent’s good faith, commercially reasonable discretion may include, an Acquisition Transaction, (iv) any other announcement that in the commercially reasonable judgment of the
Calculation Agent is reasonably likely to result in an Acquisition Transaction (it being understood and agreed that in determining whether such announcement is reasonably likely to result in an Acquisition Transaction, the Calculation Agent may
take into consideration the effect of such announcement on the Shares) or (v) any announcement subsequent to an Acquisition Transaction Announcement relating to any material change or amendment to the subject matter of a prior Acquisition
Transaction Announcement by Issuer, any of its controlled subsidiaries, or any entity or an affiliate or agent of any entity that is (or is reasonably expected to become) party to the applicable Acquisition Transaction (any such entity, a “Valid Third-Party Entity”). The term “announcement” as used in the definition of Acquisition Transaction Announcement refers to any public statement and/or any announcement related to an Acquisition Transaction
made by Issuer or any controlled subsidiary thereof, or any Valid Third-Party Entity.
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(c) “Acquisition Transaction” means (i) any Merger Event (for purposes of this definition the definition of Merger Event shall be read with the
references therein to “100%” being replaced by “30%” and to “50%” by “75%” and without reference to the clause beginning immediately following the definition of Reverse Merger therein to the end of such definition), Tender Offer or Merger
Transaction or any other transaction involving the merger of Counterparty with or into any third party, (ii) the sale or transfer of all or substantially all of the assets of Counterparty, (iii) a recapitalization, reclassification, binding share
exchange or other similar transaction with respect to Counterparty, (iv) any acquisition, lease, exchange, transfer, disposition (including by way of spin-off or distribution) of assets or liabilities (including any capital stock or other ownership
interests in subsidiaries) or other similar event by Counterparty or any of its subsidiaries where the aggregate consideration transferable or receivable by or to Counterparty or its subsidiaries exceeds 30% of the market capitalization of
Counterparty and (v) any transaction with respect to which Counterparty or its board of directors has a legal obligation to make a recommendation to its shareholders in respect of such transaction (whether pursuant to Rule 14e-2 under the Exchange
Act or otherwise).
| 11. |
Acknowledgments. (a) The parties hereto intend for:
|
(i) each Transaction to be a “securities contract” as defined in Section 741(7) of the Bankruptcy Code with respect to which each payment and delivery hereunder or in
connection herewith is a “termination value,” “payment amount,” “offset or net out” or “other transfer obligation” within the meaning of Section 362(b) of the Bankruptcy Code and a “settlement payment,” within the meaning of Section 546(e) of the
Bankruptcy Code and a “forward contract” as defined in Section 101(25) of the Bankruptcy Code, and Dealer is entitled to the protections afforded by, among other sections, Sections 362(b)(6), 362(b) (17), 362(b)(27), 362(o), 546(e), 546(j),
548(d)(2), 555, 556, 560 and 561 of the Bankruptcy Code;
(ii) this Master Agreement is a “swap agreement,” as such term is defined in Section 101(53B) of the Bankruptcy Code, with respect to which each payment and delivery
hereunder or in connection herewith is a “transfer” within the meaning of Section 546(g) of the Bankruptcy Code and a “master netting agreement” as defined in Section 101(38A) of the Bankruptcy Code;
(iii) Dealer is a “financial institution,” “financial participant” and “swap participant” within the meaning of Sections 101(22), 101(22A) and 101(53C) of the Bankruptcy;
(iv) a party’s right to liquidate, terminate or accelerate any Transaction, net out or offset termination values or payment amounts, and to exercise any other remedies
upon the occurrence of any Event of Default or Termination Event under the Agreement with respect to the other party or any Extraordinary Event that results in the termination or cancellation of any Transaction to constitute a “contractual right”
(as defined in the Bankruptcy Code) to cause the liquidation, termination or acceleration of or the offset or net out termination values under or in connection with a “securities contract” and a “swap agreement”; and
(v) all payments for, under or in connection with each Transaction, all payments for the Shares (including, for the avoidance of doubt, payment of the Prepayment Amount)
and the transfer of such Shares to constitute “settlement payments” and “transfers” (as defined in the Bankruptcy Code).
(b) Counterparty acknowledges and agrees that:
(i) during the term of any Transaction, 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 establish, adjust or unwind its hedge position with respect to such Transaction;
(ii) Dealer and its affiliates may also be active in the market for the Shares and derivatives linked to the Shares other than in connection with hedging activities in relation to any
Transaction, including acting as agent or as principal and for its own account or on behalf of customers;
(iii) Dealer shall make its own determination as to whether, when or in what manner any hedging or market activities in Counterparty’s securities 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 Forward Price and the VWAP Price;
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(iv) any market activities of Dealer and its affiliates with respect to the Shares may affect the market price and volatility of the Shares, as well as the Forward Price, VWAP Price and
Settlement Price, each in a manner that may be adverse to Counterparty; and
(vi) each Transaction is a derivatives transaction in which it has granted Dealer an option; Dealer may purchase Shares for its own account at an average price that may
be greater than, or less than, the price paid by Counterparty under the terms of the related Transaction.
12. Credit Support Documents. The parties hereto acknowledge that no Transaction hereunder is secured by any collateral that would otherwise secure the obligations of either Counterparty or Dealer
pursuant to the Agreement.
13. No Netting or Set-off. Obligations under any Transaction shall not be netted, recouped or set off (including pursuant to Section 6 of the Agreement) against any other
obligations of the parties, whether arising under the Agreement, this Master Confirmation or any Supplemental Confirmation, or under any other agreement between the parties hereto, by operation of law or otherwise, and no other obligations of the
parties shall be netted, recouped or set off (including pursuant to Section 6 of the Agreement) against obligations under any Transaction, whether arising under the Agreement, this Master Confirmation or any Supplemental Confirmation, or under any
other agreement between the parties hereto, by operation of law or otherwise, and each party hereby waives any such right of setoff, netting or recoupment.
14. Delivery of Shares. Notwithstanding anything to the contrary herein, Dealer may, by prior notice to Counterparty, satisfy its obligation to deliver any Shares or other securities on any date due
(an “Original Delivery Date”) by making separate deliveries of Shares or such securities, as the case may be, at more than one time on or prior to such Original Delivery Date, so long as the aggregate number
of Shares and other securities so delivered on or prior to such Original Delivery Date is equal to the number required to be delivered on such Original Delivery Date.
15. Early Termination. In the event that (i) an Early Termination Date (whether as a result of an Event of Default or a Termination Event)
occurs or is designated with respect to any Transaction or (ii) any 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 all holders of Shares consists solely of cash, (ii) a Merger Event or Tender Offer that is within Counterparty’s control, or (iii) an Event of Default in which Counterparty is the Defaulting Party or a Termination Event
in which Counterparty is the Affected Party other than an Event of Default of the type described in Section 5(a)(iii), (v), (vi), (vii) or (viii) of the Agreement or a Termination Event of the type described in Section 5(b) of the Agreement, in
each case that resulted from an event or events outside Counterparty’s control), if either party would owe any amount to the other party pursuant to Section 6(d)(ii) of the Agreement or any Cancellation Amount pursuant to Article 12 of the Equity
Definitions (any such amount, a “Payment Amount”), then, in lieu of any payment of such Payment Amount, unless Counterparty makes an election to the contrary no later than the Exchange Business Day
immediately following the Early Termination Date or the Exchange Business Day immediately following the date on which such Transaction is terminated or cancelled, Counterparty or Dealer, as the case may be, shall deliver to the other party a number
of Shares (or, in the case of a Nationalization, Insolvency or Merger Event, a number of units, each comprising the number or amount of the securities or property that a hypothetical holder of one Share would receive
in such Nationalization, Insolvency or Merger Event, as the case may be (each such unit, an “Alternative Delivery Unit”)), with a value equal to the Payment Amount, as determined by the Calculation Agent over a commercially reasonable period of time (and the parties agree that, in making such determination of value, the Calculation Agent may take into account a number of factors, including the market price of the Shares
or Alternative Delivery Units on the Early Termination Date or the date of early cancellation or termination, as the case may be, and, if such delivery is made by Dealer, the prices at which Dealer purchases Shares or Alternative Delivery Units in
a commercially reasonable manner to unwind a commercially reasonable hedge position to fulfill its delivery obligations under this Section 15); provided that in determining the composition of any
Alternative Delivery Unit, if the relevant Nationalization, Insolvency or Merger Event involves a choice of consideration to be received by holders, such holder shall be deemed to have elected to receive the maximum possible amount of cash; provided further that Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Sections 9 and 10(b) of the Exchange Act, and the rules and regulations promulgated
thereunder, in connection with any election by Counterparty that the provisions of this Section 15 providing for the delivery of Shares or Alternative Delivery Units, as the case may be, shall not apply. If such delivery is made by Counterparty,
paragraphs 2 through 7 of Annex A shall apply as if such delivery were a settlement of the Transaction to which Net Share Settlement applied, the Cash Settlement Payment Date were the Early Termination Date or the
date of early cancellation or termination, as the case may be, and the Forward Cash Settlement Amount were zero (0) minus the Payment Amount owed by Counterparty. For the
avoidance of doubt, if Counterparty validly elects for the provisions of this Section 15 relating to the delivery of Shares or Alternative Delivery Units, as the case may be, not to apply to any Payment Amount, the provisions of Article 12 of the Equity Definitions, or the provisions of Section 6(d)(ii) of the Agreement, as the case may be, shall apply. If delivery of Shares or Alternative Delivery Units, as the case may
be, is to be made by Dealer pursuant to this Section 15, the period during which Dealer purchases Shares or Alternative Delivery Units to fulfill its delivery obligations under this Section 15 shall be referred to as the “Seller Termination Purchase Period”.
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16. Calculations and Payment Date upon Early Termination. The parties acknowledge and agree that in calculating (a) the Close-Out Amount pursuant to Section 6 of the Agreement and
(b) the amount due upon cancellation or termination of any Transaction (whether in whole or in part) pursuant to Article 12 of the Equity Definitions as a result of an Extraordinary Event, Dealer may in a commercially and reasonable manner (but
need not) determine such amount based on (i) expected losses or gains assuming a commercially reasonable (including, without limitation, with regard to reasonable legal and regulatory guidelines) risk bid were used to
determine loss or gain or (ii) the price at which one or more market participants would offer to sell to the Seller a block of Shares equal in number to the Seller’s commercially reasonable hedge position in relation to such Transaction.
Notwithstanding anything to the contrary in Section 6(d)(ii) of the Agreement or Article 12 of the Equity Definitions, all amounts calculated as being due in respect of an Early Termination Date under Section 6(e) of the Agreement or upon
cancellation or termination of the relevant Transaction under Article 12 of the Equity Definitions will be payable on the day that notice of the amount payable is effective; provided
that if Counterparty elects to receive or deliver Shares or Alternative Delivery Units in accordance with Section 15, such Shares or Alternative Delivery Units shall be delivered on a date selected by the Calculation Agent
as promptly as practicable thereafter.
17. Maximum Share Delivery. Notwithstanding anything to the contrary in this Master Confirmation, in no event shall Dealer be
required to deliver any Shares, or any Alternative Delivery Units, in respect of any Transaction in excess of the Maximum Number of Shares set forth in the Supplemental Confirmation for such Transaction. Notwithstanding any other provision of this
Master Confirmation or any Supplemental Confirmation, in no event shall the Maximum Number of Shares for any Transaction be increased, whether in connection with any adjustment to such Transaction or otherwise.
18. Termination Price. Notwithstanding anything to the contrary in Section 6 of the Agreement, if a Termination Price is specified in any Supplemental Confirmation, then if the closing price per Share
on the Exchange for any three consecutive Exchange Business Days is below such Termination Price, Dealer may elect no later than such third consecutive Exchange Business Day that an Additional Termination Event shall
have occurred with Counterparty as the sole Affected Party and the Transaction to which such Supplemental Confirmation relates as the Affected Transaction.
19. [Reserved.]
20. Delivery of Cash. For the avoidance of doubt, nothing in this Master Confirmation shall be interpreted as requiring Counterparty to deliver cash in respect of the settlement of the Transactions
contemplated by this Master Confirmation following payment by Counterparty of the relevant Prepayment Amount, except in circumstances where the required cash settlement thereof is permitted for classification of the contract as equity by ASC
815-40, Derivatives and Hedging – Contracts in Entity’s Own Equity, as in effect on the relevant Trade Date (including, without limitation, where Counterparty so elects to deliver cash or fails timely to
elect to deliver Shares or Alternative Delivery Units in respect of the settlement of such Transactions).
21. [Reserved.]
22. Claim in Bankruptcy. Dealer acknowledges and agrees that neither this Master Confirmation nor any Supplemental Confirmation is intended to convey to it rights with respect to the Transactions that
are senior to the claims of common stockholders in any United States bankruptcy proceedings of Counterparty; provided that nothing herein shall limit or shall be deemed to limit Dealer’s right to pursue
remedies in the event of a breach by Counterparty of its obligations and agreements with respect to any Transaction; provided further that nothing herein shall limit or shall be deemed to limit Dealer’s
rights in respect of any transactions other than any Transaction.
17
23. Communications; Non-confidentiality. Counterparty shall not, directly or indirectly, communicate any material non-public information relating to
Counterparty or the Shares (including, without limitation, any notices of a Public Announcement) to any employee of Dealer, other than any designee confirmed in writing by Dealer. Dealer and Counterparty hereby acknowledge and agree that, subject
to the immediately preceding sentence, each is authorized to disclose every aspect of this Master Confirmation, any Supplemental Confirmation and the transactions contemplated hereby and thereby to any and all persons, without limitation of any
kind, and there are no express or implied agreements, arrangements or understandings to the contrary.
24. Governing Law. The Agreement, this Master Confirmation, each Supplemental Confirmation and all matters arising in connection with the Agreement, this Master Confirmation and each Supplemental
Confirmation shall be governed by, and construed and enforced in accordance with, the laws of the State of New York (without reference to its choice of laws doctrine other than Title 14 of Article 5 of the New York General Obligations Law).
| 25. |
Tax.
|
(a) Dealer represents that (A) each Transaction entered into by (I) Deutsche Bank AG, New York Branch and (II) Deutsche Bank AG, London Branch or Deutsche Bank Frankfurt, each acting as
intermediary for Deutsche Bank AG, New York Branch through an office or discretionary agent in the United States, will be treated, solely for U.S. federal income tax purposes, as entered into by a corporation that is a “U.S. person” (as that term
is defined in Section 7701(a)(30) of the Code and used in U.S. Treasury Regulations Section 1.1441- 4(a)(3)(ii)) for U.S. federal income tax purposes; and (B) it is exempt from information reporting on IRS Form 1099 (within the meaning of U.S.
Treasury Regulations Sections 1.6041-3(p) and 1.6049-4(c)) and backup withholding.
(b) Dealer agrees to deliver to Counterparty a valid, accurate and complete U.S. Internal Revenue Service Form W-8IMY (or any successor form) from Deutsche Bank AG London Branch and
withholding statement with attached valid, accurate and complete U.S. Internal Revenue Service Form W-9 (or any successor form) from Deutsche Bank AG, New York Branch (A) upon execution of this Master Confirmation, (B) promptly upon reasonable
demand by Counterparty and (C) promptly upon learning that any Form W-9 (or any successor thereto) previously provided by Dealer has become obsolete, invalid or incorrect.
(c) Counterparty represents to Dealer that it is a domestic corporation for U.S. federal income tax purposes.
(d) Counterparty agrees to deliver to Dealer a valid, accurate and complete U.S. Internal Revenue Service Form W-9 (or any successor form) (A) upon execution of this Master 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 Counterparty has become obsolete, invalid or incorrect.
(e) “Indemnifiable Tax” as defined in Section 14 of the Agreement shall not include (i) any U.S. federal withholding tax imposed or collected pursuant to Sections 1471 through 1474 of the
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”) or
(ii) any tax imposed on amounts treated as dividends from sources within the United States under Section 871(m) of the Code (or the United States Treasury Regulations or other guidance issued thereunder) (a “Section
871(m) Withholding Tax”). For the avoidance of doubt, a FATCA Withholding Tax and a Section 871(m) 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.
| 26. |
Offices.
|
(a) The Office of Dealer for each Transaction is: London.
18
(b) The Office of Counterparty for each Transaction is: Orlando.
27. Waiver of Jury Trial. EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE AGREEMENT, THIS MASTER CONFIRMATION, ANY SUPPLEMENTAL CONFIRMATION, ANY TRANSACTION HEREUNDER AND/OR ALL MATTERS ARISING IN CONNECTION WITH THE AGREEMENT, THIS MASTER CONFIRMATION, ANY
SUPPLEMENTAL CONFIRMATION AND/OR ANY TRANSACTION HEREUNDER.
28. Submission to Jurisdiction. THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED IN THE BOROUGH OF
MANHATTAN, IN THE CITY OF NEW YORK, IN ANY SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THE AGREEMENT, THIS MASTER CONFIRMATION, ANY SUPPLEMENTAL CONFIRMATION AND/OR ANY TRANSACTION HEREUNDER.
29. Counterparts. This Master Confirmation may be executed in any number of counterparts, all of which shall constitute one and the same instrument, and any party hereto may execute this
Master Confirmation by signing and delivering one or more counterparts.
30. Designation by Dealer; Transfer. Notwithstanding any other provision in this Master Confirmation to the contrary requiring or allowing Dealer to purchase, sell, receive or deliver any Shares or
other securities to or from Counterparty, Dealer may designate any of its U.S. affiliates to purchase, sell, receive or deliver such Shares or other securities and otherwise to perform Dealer obligations in respect of any Transaction hereunder and
any such designee may assume such obligations. Dealer shall be discharged of its obligations to Counterparty only to the extent of any such performance. Notwithstanding anything to the contrary herein or in the Agreement, Dealer may assign and/or
transfer all rights, title and interest, powers, privileges and remedies of Dealer under any Transaction, in whole or in part, to Deutsche Bank AG, Frankfurt Branch or any other branch or Affiliate of Dealer, without the prior written consent of
Counterparty; provided that such transfer and/or assignment shall be permitted only so long as (i) an Event of Default or Termination Event will not occur as a result of such transfer and assignment and
(ii) as a result of such transfer and assignment, Counterparty will not (x) be required to pay or deliver to the transferee on any payment date or delivery date an amount (including, without limitation, under Section 2(d)(i)(4) of the Agreement) or
a number of Shares, as applicable, greater than the amount or the number of Shares, respectively, that Counterparty would have been required to pay or deliver to Dealer in the absence of such transfer and assignment or (y) receive from the
transferee on any payment date or delivery date an amount (including, without limitation, under Section 2(d)(i)(4) of the Agreement) or a number of Shares, as applicable, lesser than the amount or the number of Shares, respectively, that Dealer
would have been required to pay or deliver, as the case may be, to Counterparty in the absence of such transfer and assignment.
31. Resolution Stay Protocol. Subject to the below, the provisions set out in the Attachment to the ISDA 2015 Universal Resolution Stay Protocol as published by the International Swaps and
Derivatives Association on 4 November 2015 (“Protocol”), and any additional Country Annex that has been published from time to time and to which Counterparty has adhered are, mutadis mutandis, incorporated by reference, into the Agreement as though such provisions and definitions were set out in full herein, with any such conforming changes as are necessary to deal with what would otherwise be
inappropriate or incorrect cross-references. References in the Protocol:
(a) the “Adhering Party” shall be deemed to be references to the parties to the Agreement;
(b) the “Adherence Letter” shall be deemed to be references to the Agreement;
(c) the “Implementation Date” shall be deemed to be references to the date of the Agreement; and
(d) the Agreement shall be deemed a “Covered Agreement.”
32. 2013 EMIR Portfolio Reconciliation, Dispute Resolution and Disclosure Protocol. The parties agree that the terms of the 2013 EMIR Portfolio
Reconciliation, Dispute Resolution and Disclosure Protocol published by ISDA on July 19, 2013 (“Protocol”) apply to the Agreement as if the parties had adhered to the Protocol without amendment. In respect
of the Attachment to the Protocol, (i) the definition of “Adherence Letter” shall be deemed to be deleted and references to “Adherence Letter” shall be deemed to be to this Section 32 (and references to “such party’s Adherence Letter” and “its
Adherence Letter” shall be read accordingly), (ii) references to “adheres to the Protocol” shall be deemed to be “enters into the Agreement”, (iii) references to “Protocol Covered Agreement” shall be deemed to be references to the Agreement (and
each “Protocol Covered Agreement” shall be read accordingly), and (iv) references to “Implementation Date” shall be deemed to be references to the date of the Agreement. For the purposes of this Section 32:
19
(i) Dealer is a Portfolio Data Sending Entity and Counterparty is a Portfolio Data Receiving Entity.
(ii) Dealer and Counterparty may use a Third Party Service Provider, and each of Dealer and Counterparty consents to such use including the communication of the relevant
data in relation to Dealer and Counterparty to such Third Party Service Provider for the purposes of the reconciliation services provided by such entity.
(iii) The Local Business Days for such purposes in relation to Dealer are New York and in relation to Counterparty are New York.
(iv) The provisions in this paragraph shall survive the termination of this Transaction.
(v) The following are the applicable email addresses.
|
Portfolio Data:
|
Dealer: collateral.disputes@db.com
|
|
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Counterparty: [_____]
|
||
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Notice of discrepancy:
|
Dealer: collateral.disputes@db.com
|
|
|
Counterparty: [_____]
|
||
|
Dispute Notice:
|
Dealer: collateral.disputes@db.com
|
|
|
Counterparty: [_____]
|
33. NFC Representation Protocol. The parties agree that the provisions set out in the Attachment to the ISDA 2013 EMIR NFC Representation Protocol published by ISDA on March 8, 2013 (the “NFC Representation Protocol”) shall apply to the Agreement as if each party were an Adhering Party under the terms of the NFC Representation Protocol. In respect of the Attachment to the Protocol, (i) the
definition of “Adherence Letter” shall be deemed to be deleted and references to “Adherence Letter” shall be deemed to be to this Section 33 (and references to “the relevant Adherence Letter” and “its Adherence Letter” shall be read accordingly),
(ii) references to “adheres to the Protocol” shall be deemed to be “enters into the Agreement”, (iii) references to “Covered Master Agreement” shall be deemed to be references to the Agreement (and each “Covered Master Agreement” shall be read
accordingly), and (iv) references to “Implementation Date” shall be deemed to be references to the date of the Agreement. Counterparty confirms that it enters into the Agreement as a party making the NFC Representation (as such term is defined in
the NFC Representation Protocol). Counterparty shall promptly notify Dealer of any change to its status as a party making the NFC Representation.
34. Transaction Reporting – Consent for Disclosure of Information. Notwithstanding anything to the contrary herein or in the Agreement or any non-disclosure, confidentiality or other agreements
entered into between the parties from time to time, each party hereby consents to the Disclosure of information (the “Reporting Consent”):
(i) to the extent required by, or necessary in order to comply with, any applicable law, rule or regulation which mandates Disclosure of transaction and similar
information or to the extent required by, or necessary in order to comply with, any order, request or directive regarding Disclosure of transaction and similar information issued by any relevant authority or body or agency (“Reporting Requirements”); or
20
(ii) to and between the other party’s head office, branches or affiliates; to any person, agent, third party or entity who provides services to such other party or
its head office, branches or affiliates; to a Market; or to any trade data repository or any systems or services operated by any trade repository or Market, in each case, in connection with such Reporting Requirements.
“Disclosure” means disclosure, reporting, retention, or any action similar or analogous to any of the aforementioned.
“Market” means any exchange, regulated market, clearing house, central clearing counterparty or multilateral trading facility.
Disclosures made pursuant to this Reporting Consent may include, without limitation, Disclosure of information relating to disputes over transactions between the parties, a party’s identity, and certain
transaction and pricing data and may result in such information becoming available to the public or recipients in a jurisdiction which may have a different level of protection for personal data from that of the relevant party’s home
jurisdiction.
This Reporting Consent shall be deemed to constitute an agreement between the parties with respect to Disclosure in general and shall survive the termination of this Master Confirmation. No amendment to or
termination of this Reporting Consent shall be effective unless such amendment or termination is made in writing between the parties and specifically refers to this Reporting Consent.
35. Contractual Recognition of Stay in Resolution. Each party
(i) acknowledges and accepts that the Agreement may be subject to the exercise of powers by the Relevant Resolution Authority to suspend or restrict rights and
obligations arising from such Agreement under Articles 33a, 69, 70 and 71 of BRRD as transposed by the Relevant National Law and that the conditions set out in Article 68 of BRRD as transposed by the Relevant National Law will apply;
(ii) acknowledges and accepts that the parties are bound by the effect of an application of (a) the suspension of any payment or delivery obligation in accordance
with Article 33a of BRRD as transposed by the Relevant National Law; (b) the suspension of any payment or delivery obligation in accordance with Article 69 of BRRD as transposed by the Relevant National Law; (c) the restriction of enforcement
of any security interest in accordance with Article 70 of BRRD as transposed by the Relevant National Law; and (d) the suspension of any termination right under the Agreement in accordance with Article 71 of BRRD as transposed by the Relevant
National Law;
(iii) acknowledges and accepts that the parties are bound by the provisions of Article 68 of BRRD as transposed by the Relevant National Law; and
(iv) acknowledges and accepts that the contractual recognition terms in this Part I are exhaustive on the matters described herein to the exclusion of any other
agreements, arrangements or understandings between the parties relating to the subject matter of the Agreement.
References to the Stay Powers as transposed under each Relevant National Law are contained in the EU Stay Law Table.
For the purposes of the above provision, where the relevant BRRD Party is Party A, the Covered Member State shall be Germany; and where the relevant BRRD Party is Party B, the Covered Member State shall be Not
Applicable.
“BRRD” means Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, as amended by Directive
2019/879/EU.
“BRRD Party” means any party to the Agreement that is subject to a Stay Recognition Requirement.
“Covered Member State” means a member state of the European Economic Area that is included in the EU Stay Law Table.
21
“EU Stay Law Table” means the document described as such, as then in effect, and published by the International Swaps and Derivatives Association, Inc. (or any successor
person) from time to time at https://www.isda.org/book/eu-stay-law-annex/.
“Relevant National Law” means, in relation to a Covered Member State, the laws, regulations, rules or requirements implementing BRRD (or pursuant to which BRRD is
directly applicable) as described in the EU Stay Law Table from time to time that are applicable to the relevant BRRD Party.
“Relevant Resolution Authority” means the resolution authority with the ability to exercise the Stay Powers as transposed in the Relevant National Law in relation to the
relevant BRRD Party.
“Stay Powers” means the powers under Articles 33a, 69, 70 and 71 of BRRD and the conditions under Article 68 of BRRD.
“Stay Recognition Requirement” means the requirements set forth under Article 71a of BRRD as transposed by the Relevant National Law.”
36. Method of Delivery. Whenever delivery of funds or other assets is required hereunder by or to Counterparty, such delivery shall be effected through Deutsche Bank Securities Inc. In addition,
all notices, demands and communications of any kind relating to any Transaction between Dealer and Counterparty shall be transmitted exclusively through Deutsche Bank Securities Inc.
37. 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 Master Confirmation, any Supplemental Confirmation or the Agreement, as applicable, arising from a termination event, force majeure, illegality, increased costs, regulatory change or similar event under this Master
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, or Illegality (as defined in the Agreement)).
38. CARES Act. Counterparty represents and warrants that it has not applied, and throughout the term of any Transaction shall not apply, for a loan, loan
guarantee, direct loan (as that term is defined in the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”)) or other investment, or to receive any financial assistance or relief
(howsoever defined) under any program or facility that (a) is established under applicable law (whether in existence as of the Trade Date for such Transaction or subsequently enacted, adopted or amended), including without limitation the
CARES Act and the Federal Reserve Act, as amended, and (b) requires under applicable law (or any regulation, guidance, interpretation or other pronouncement thereunder), as a condition of such loan, loan guarantee, direct loan (as that term
is defined in the CARES Act), investment, financial assistance or relief, that Counterparty agree, attest, certify or warrant that it has not, as of the date specified in such condition, repurchased, or will not repurchase, any equity
security of Counterparty, and that it has not, as of the date specified in such condition, made a capital distribution or will not make a capital distribution (collectively “Restricted Financial Assistance”);
provided that Counterparty may apply for Restricted Financial Assistance if Counterparty either (a) determines based on the advice of outside counsel of national standing that the terms of such
Transaction would not cause Counterparty to fail to satisfy any condition for application for or receipt or retention of such Restricted Financial Assistance based on the terms of the program or facility as of the date of such advice or (b)
delivers to Dealer evidence or other guidance from a governmental authority with jurisdiction for such program or facility that such Transaction is permitted under such program or facility (either by specific reference to such Transaction or
by general reference to transactions with the attributes of such Transaction in all relevant respects). Counterparty further represents and warrants that the Prepayment Amount for any Transaction is not being paid, in whole or in part,
directly or indirectly, with funds received under or pursuant to any program or facility, including the U.S. Small Business Administration’s “Paycheck Protection Program”, that (a) is established under applicable law (whether in existence as
of the Trade Date for such Transaction or subsequently enacted, adopted or amended), including without limitation the CARES Act and the Federal Reserve Act, as amended, and (b) requires under such applicable law (or any regulation, guidance,
interpretation or other pronouncement of a governmental authority with jurisdiction for such program or facility) that such funds be used for specified or enumerated purposes that do not include the purchase of Shares pursuant to any
Transaction (either by specific reference thereto or by general reference to transactions with the attributes thereof in all relevant respects).
22
Please confirm that the foregoing correctly sets forth the terms of our agreement by executing this Master Confirmation and returning it to us.
Dealer is authorised for the conduct of certain activities by the Prudential Regulation Authority. It is subject to limited regulation by the Financial Conduct Authority and by the
Prudential Regulation Authority.
| Very truly yours, | |||
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DEUTSCHE BANK AG, LONDON BRANCH
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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DEUTSCHE BANK SECURITIES INC.,
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|||
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acting solely as Agent in connection with the Transaction
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|||
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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Agreed and Accepted By:
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ISSUER
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By:
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Name:
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Title:
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23
FORM OF SUPPLEMENTAL CONFIRMATION
Deutsche Bank 
Deutsche Bank AG, London Branch
21 Moorfields, London EC2Y 9DB
Telephone: 44 20 7545 8000
c/o Deutsche Bank Securities Inc.
1 Columbus Circle
New York, NY 10019
Telephone: 212-250-2500
Internal Reference: [●]
|
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[________], 20[__] |
| To: |
Hilton Grand Vacations Inc.
|
5323 Millenia Lakes Boulevard
Orlando, Florida 32839
Attn: [_____]
Email: [_____]
|
Re:
|
Supplemental Confirmation—Uncollared Accelerated Share Repurchase
|
The purpose of this Supplemental Confirmation is to confirm the terms and conditions of the Transaction entered into between Deutsche Bank AG, London Branch (“Dealer”), with Deutsche Bank Securities Inc. acting as agent (“Agent”), and [issuer] (“Counterparty”) (together, the “Contracting Parties”) on the Trade Date specified below. This Supplemental Confirmation is a binding contract between Dealer and Counterparty as of the relevant Trade Date for the Transaction referenced
below.
1. This Supplemental Confirmation supplements, forms part of, and is subject to the Master Confirmation dated as of [date] (the “Master Confirmation”) between the Contracting Parties, as amended and supplemented from time to time. All provisions contained in the Master Confirmation govern this Supplemental Confirmation except as expressly modified
below.
2. The terms of the Transaction to which this Supplemental Confirmation relates are as follows:
|
Trade Date:
|
[●]
|
|
Forward Price Adjustment Amount:
|
USD [●]
|
|
[Threshold Price:
|
USD [●]]1
|
|
Calculation Period Start Date:
|
[●]
|
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Scheduled Termination Date:
|
[●]
|
1 Closing stock price on, or immediately preceding, Trade Date divided by 2.
24
|
First Acceleration Date:
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[●]
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Prepayment Amount:
|
USD [●]
|
|
Prepayment Date:
|
[●]
|
|
Initial Shares:
|
[●] Shares; provided that if, in connection with the Transaction, Dealer
is unable, after using commercially reasonable efforts, to borrow or otherwise acquire a number of Shares equal to the Initial Shares for delivery to Counterparty on the Initial Share Delivery Date, the Initial Shares delivered on the
Initial Share Delivery Date shall be reduced to such number of Shares that Dealer is able to so borrow or otherwise acquire, and thereafter Dealer shall continue to use commercially reasonable efforts to borrow or otherwise acquire a
number of Shares, at a stock borrow cost no greater than the Initial Stock Loan Rate, equal to the shortfall in the Initial Share Delivery and to deliver such additional Shares as soon as reasonably practicable. All Shares delivered
to Issuer in respect of the Transaction pursuant to this paragraph shall be the “Initial Shares” for purposes of “Settlement Amount.”
|
|
Initial Share Delivery Date:
|
[●]
|
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Ordinary Dividend Amount:
|
For any calendar quarter, USD [●]
|
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Scheduled Ex-Dividend Date(s):
|
[●]
|
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Termination Price:
|
USD [●] per Share
|
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Maximum Number of Shares:
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[●]
|
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Reserved Shares:
|
[●]
|
3. Counterparty represents and warrants to Dealer that neither it nor any “affiliated purchaser” (as defined in Rule 10b-18 under the Exchange Act) has made any purchases of blocks pursuant to the
proviso in Rule 10b-18(b)(4) under the Exchange Act during either (i) the four full calendar weeks immediately preceding the Trade Date or (ii) during the calendar week in which the Trade Date occurs.
4. This Supplemental Confirmation may be executed in any number of counterparts, all of which shall constitute one and the same instrument, and any party hereto may execute this Supplemental Confirmation
by signing and delivering one or more counterparts.
25
Please confirm that the foregoing correctly sets forth the terms of our agreement by executing this Supplemental Confirmation and returning it to us.
Dealer is authorised for the conduct of certain activities by the Prudential Regulation Authority. It is subject to limited regulation by the Financial Conduct Authority and by the
Prudential Regulation Authority.
|
Very truly yours,
|
|||
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DEUTSCHE BANK AG, LONDON BRANCH
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By:
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Name:
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Title:
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By:
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Name:
|
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Title:
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DEUTSCHE BANK SECURITIES INC.,
|
|||
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acting solely as Agent in connection with the Transaction
|
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By:
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Name:
|
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Title:
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By:
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Name:
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Title:
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Agreed and Accepted By:
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ISSUER
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||
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By:
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||
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Name:
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||
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Title:
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26
ANNEX A
COUNTERPARTY SETTLEMENT PROVISIONS
1. The following Counterparty Settlement Provisions shall apply to the extent indicated under the Master Confirmation:
AA-1
2. Net Share Settlement shall be made by delivery on the Cash Settlement Payment Date of a number of Shares satisfying the conditions set forth in paragraph 3 below (the “Registered Settlement Shares”), or a number of Shares not satisfying such conditions (the “Unregistered Settlement Shares”), in either case with a value equal to the
absolute value of the Forward Cash Settlement Amount (which value shall, in the case of Unregistered Settlement Shares, take into account a commercially reasonable illiquidity discount), in each case as determined by the Calculation Agent.
3. Counterparty may only deliver Registered Settlement Shares pursuant to paragraph 2 above if:
(a) a registration statement covering public resale of the Registered Settlement Shares by Dealer (the “Registration Statement”) shall have been
filed with the Securities and Exchange Commission under the Securities Act and been declared or otherwise become effective on or prior to the date of delivery, and no stop order shall be in effect with respect to the Registration Statement; a
printed prospectus relating to the Registered Settlement Shares (including any prospectus supplement thereto, the “Prospectus”) shall have been delivered to Dealer, in such quantities as Dealer shall
reasonably have requested, on or prior to the date of delivery;
(b) the form and content of the Registration Statement and the Prospectus (including, without limitation, any sections describing the plan of distribution) shall be reasonably
satisfactory to Dealer;
(c) as of or prior to the date of delivery, Dealer and its agents shall have been afforded a reasonable opportunity to conduct a due diligence investigation with respect to
Counterparty customary in scope for underwritten offerings of equity securities by issuers of comparable size to Counterparty and in the same industry as Counterparty and the results of such investigation are satisfactory to Dealer, in its
good faith discretion; and
(d) as of the date of delivery, an agreement (the “Underwriting Agreement”) shall have been entered into with Dealer in connection with the
public resale of the Registered Settlement Shares by Dealer substantially similar to underwriting agreements customary for underwritten offerings of equity securities by issuers of comparable size to Counterparty and in the same industry as
Counterparty, in form and substance reasonably satisfactory to Dealer, which Underwriting Agreement shall include, without limitation, provisions substantially similar to those contained in such underwriting agreements relating, without
limitation, to the indemnification of, and contribution in connection with the liability of, Dealer and its affiliates and the provision of customary opinions, accountants’ comfort letters and lawyers’ negative assurance letters.
4. If Counterparty delivers Unregistered Settlement Shares pursuant to paragraph 2 above:
(a) all Unregistered Settlement Shares shall be delivered to Dealer (or any affiliate of Dealer designated by Dealer) pursuant to the exemption from the registration requirements of
the Securities Act provided by Section 4(a)(2) thereof;
(b) as of or prior to the date of delivery, Dealer and any potential purchaser of any such shares from Dealer (or any affiliate of Dealer designated by Dealer) identified by Dealer
shall be afforded a commercially reasonable opportunity to conduct a due diligence investigation with respect to Counterparty customary in scope for private placements of equity securities by issuers of comparable size to Counterparty and in
the same industry as Counterparty (including, without limitation, the right to have made available to them for inspection all financial and other records, pertinent corporate documents and other information reasonably requested by them);
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(c) as of the date of delivery, Counterparty shall enter into an agreement (a “Private Placement Agreement”) with Dealer (or any affiliate of
Dealer designated by Dealer) in connection with the private placement of such shares by Counterparty to Dealer (or any such affiliate) and the private resale of such shares by Dealer (or any such affiliate), substantially similar to private
placement purchase agreements customary for private placements of equity securities by issuers of comparable size to Counterparty and in the same industry as Counterparty, in form and substance reasonably satisfactory to Dealer, which Private
Placement Agreement shall include, without limitation, provisions substantially similar to those contained in such private placement purchase agreements relating, without limitation, to the indemnification of, and contribution in connection
with the liability of, Dealer and its affiliates and the provision of customary opinions, accountants’ comfort letters and lawyers’ negative assurance letters and shall provide for the payment by Counterparty of all reasonable, out-of-pocket
fees and expenses of Dealer (and any such affiliate) in connection with such resale, including all fees and expenses of outside counsel for Dealer, and shall contain representations, warranties, covenants and agreements of Counterparty
reasonably necessary or advisable to establish and maintain the availability of an exemption from the registration requirements of the Securities Act for such resales; and
(d) in connection with the private placement of such shares by Counterparty to Dealer (or any such affiliate) and the private resale of such shares by Dealer (or any such affiliate),
Counterparty shall, if so requested by Dealer, prepare, in cooperation with Dealer, a private placement memorandum in form and substance reasonably satisfactory to Dealer.
5. Dealer, itself or through an affiliate (the “Selling Agent”) or any underwriter(s), will sell in a commercially reasonable manner all, or
such lesser portion as may be required hereunder, of the Registered Settlement Shares or Unregistered Settlement Shares and any Makewhole Shares (as defined below) (together, the “Settlement Shares”)
delivered by Counterparty to Dealer pursuant to paragraph 6 below as promptly as reasonably practicable commencing on the Cash Settlement Payment Date and continuing until the date on which the aggregate Net Proceeds (as such term is defined
below) of such sales is equal to the absolute value of the Forward Cash Settlement Amount (such date, the “Final Resale Date”). If the proceeds of any sale(s) made by Dealer, the Selling Agent or any
underwriter(s), net of any fees and commissions (including, without limitation, underwriting or placement fees) customary for similar transactions under the circumstances at the time of the offering, together with carrying charges and
expenses incurred in connection with the offer and sale of the Shares (including, but without limitation to, the covering of any over-allotment or short position (syndicate or otherwise)) (the “Net Proceeds”)
exceed the absolute value of the Forward Cash Settlement Amount, Dealer will refund, in USD or shares at the election of the Counterparty, such excess to Buyer on the date that is two (2) Currency Business Days following the Final Resale
Date, and, if any portion of the Settlement Shares remains unsold, Dealer shall return to Buyer on that date such unsold Shares.
6. If the Calculation Agent determines that the Net Proceeds received from the sale of the Registered Settlement Shares or Unregistered Settlement Shares or any Makewhole Shares, if
any, pursuant to this paragraph 6 are less than the absolute value of the Forward Cash Settlement Amount (the amount in USD by which the Net Proceeds are less than the absolute value of the Forward Cash Settlement Amount being the “Shortfall” and the date on which such determination is made, the “Deficiency Determination Date”), Counterparty shall on the Exchange Business Day next succeeding the
Deficiency Determination Date (the “Makewhole Notice Date”) deliver to Dealer, through the Selling Agent, a notice of Counterparty’s election that Counterparty shall either (i) pay an amount in cash
equal to the Shortfall on the day that is one (1) Currency Business Day after the Makewhole Notice Date, or (ii) deliver additional Shares. If Counterparty elects to deliver to Dealer additional Shares, then Counterparty shall deliver
additional Shares in compliance with the terms and conditions of paragraph 3 or paragraph 4 above, as the case may be (the “Makewhole Shares”), on the first Clearance System Business Day that is also an
Exchange Business Day following the Makewhole Notice Date in such number as the Calculation Agent determines would have a market value on that Exchange Business Day equal to the Shortfall. Such Makewhole Shares shall be sold by Dealer in
accordance with the provisions above; provided that if the sum of the Net Proceeds from the sale of the originally delivered Shares and the Net Proceeds from the sale of any Makewhole Shares is less
than the absolute value of the Forward Cash Settlement Amount then Counterparty shall, at its election, either make such cash payment or deliver to Dealer further Makewhole Shares until such Shortfall has been reduced to zero.
7. Notwithstanding the foregoing, in no event shall the aggregate number of Settlement Shares for any Transaction be greater than the Reserved Shares for such Transaction minus the amount of any Shares actually delivered by Counterparty under any other Transaction(s) under this Master Confirmation (the result of such calculation, the “Capped
Number”). Counterparty represents and warrants (which shall be deemed to be repeated on each day that a Transaction is outstanding) that the Capped Number is equal to or less than the number of Shares determined according to the
following formula:
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A – B
| Where |
A = the number of authorized but unissued shares of Counterparty that are not reserved for future issuance on the date of the determination of the Capped Number; and
|
B = the maximum number of Shares required to be delivered to third parties if Counterparty elected Net Share Settlement of all transactions in the Shares (other than
Transactions in the Shares under this Master Confirmation) with all third parties that are then currently outstanding and unexercised.
“Reserved Shares” for any Transaction shall be as set forth in the Supplemental Confirmation for such Transaction.
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