Geoffrey B. Goldman, Esq.
Shearman & Sterling LLP 599 Lexington Avenue New York, NY 10022 United States Telephone: 1-212-848-4867 Facsimile: 1-646-848-4867 Email: geoffrey.goldman@shearman.com |
Maria Grazia Uglietti
De Agostini S.p.A. 15, Via Giovanni da Verrazano 28100 Novara Italy Telephone: +39-0321-424-321 Facsimile: +39-39-0321-424305 Email: MariaGrazia.Uglietti@deagostini.it |
1
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NAME OF REPORTING PERSONS
De Agostini S.p.A.
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a) o
(b) o
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS (See Instructions)
OO
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5
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
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o
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
The Republic of Italy
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
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7
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SOLE VOTING POWER
103,422,324(1)(2)
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8
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SHARED VOTING POWER
0(1)
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9
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SOLE DISPOSITIVE POWER
103,422,324(1)
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10
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SHARED DISPOSITIVE POWER
0(1)
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
103,422,324(1)(2)
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12
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)
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o
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
50.72% (2)
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14
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TYPE OF REPORTING PERSON (See Instructions)
CO
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Exhibit 6
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Form of Confirmation for Forward Transaction, between De Agostini and Credit Suisse International
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Exhibit 7
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Underwriting Agreement, dated as of May 22, 2018, among International Game Technology PLC, International Game Technology, De Agostini S.p.A., Credit Suisse International and Credit Suisse Securities (USA) LLC (incorporated by reference to Exhibit 1.1 to the Form 6-K, filed by International Game Technology PLC with the Securities and Exchange Commission on May 25, 2018)
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Date: May 25, 2018
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De Agostini S.p.A.
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By:
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/s/ Manolo Santilli | |
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Name: Manolo Santilli
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Title: Head of Administration, Finance and Reporting
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NAME AND POSITION WITH
DE AGOSTINI S.P.A. |
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PRINCIPAL EMPLOYMENT, EMPLOYER AND BUSINESS ADDRESS
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Marco Drago
Chairman
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Chairman and Director of De Agostini S.p.A.; Chairman and General Partner of B&D Holding di Marco Drago e C. S.a.p.a.; Deputy Chairman of Grupo Planeta De Agostini SL; Director of De Agostini Editore S.p.A.; Director of DeA Capital S.p.A.; Director of IGT PLC; Director of Atresmedia Corporación de Medios de Comunicación S.A.; Director of Crescita S.p.A.
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Marco Boroli
Deputy Chairman
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Deputy Chairman and Director of De Agostini S.p.A.; Director of B&D Finance S.p.A.; Director of De Agostini Editore S.p.A.; Director of DeA Capital S.p.A.
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Pietro Boroli
Deputy Chairman
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Deputy Chairman and Director of De Agostini S.p.A.; Chairman of De Agostini Publishing Italia S.p.A.; Chairman of De Agostini Publishing S.p.A.; Chairman of De Agostini Editore S.p.A.; Chairman of De Agostini Libri S.p.A.; Director of Grupo Planeta De Agostini SL; Deputy Chairman of DeA Planeta SL, Executive Deputy Chairman of Editorial Planeta De Agostini SA; Chairman of De Agostini Scuola S.p.A.; Director of DeA Planeta Libri S.r.l.; Director of Super! Broadcast S.r.l.; Director of De Agostini UK Limited; Director of Luigi Lavazza S.p.A.; Director of Rubinetterie Stella S.p.A.; Director of Venchi S.p.A.; Director of Eprice S.p.A.; Director of M-Dis Distribuzione Media S.p.A.
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Roberto Drago
Deputy Chairman
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Deputy Chairman and Director of De Agostini S.p.A.; General Partner of B&D Holding di Marco Drago e C. S.a.p.a.; Chairman and Managing Director of B&D Finance S.p.A.; Chairman of Camperio SIM S.p.A.; Chairman of DeA Factor S.p.A.; Chairman of AS5 S.r.l.; Director of Grupo Planeta De Agostini SL; Chairman of Fondazione De Agostini
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Renzo (Lorenzo) Pellicioli
Managing Director
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Managing Director and Director of De Agostini S.p.A.; General Partner of B&D Holding di Marco Drago e C. S.a.p.a.; Deputy Chairman and Director of IGT PLC; Sole Director of Investendo Due S.r.l.; Chairman of DeA Capital S.p.A.; Director of De Agostini Editore S.p.A.; Director of Supervisory Board of Banijay Group S.a.s.; Director of LDH S.a.s.; Director of Assicurazioni Generali S.p.A.
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Paolo Boroli
Director
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Director of De Agostini S.p.A.; Deputy Chairman and Director of De Agostini Editore S.p.A.
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Guido Corbetta
Director
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Director of De Agostini S.p.A.; Director of Feralpi Holding S.p.a.; Deputy Chairman of Falck Renewables S.p.a.; Independent Director of Tesmec S.p.a.; Chairman of Vitale Barberis Canonico S.p.a.; Director of Fimag S.p.a.; Director of Villa D’Este S.p.a.; Director of Fontana Finanziaria S.p.a.; Chairman of Equity Partners Investment Club S.r.l.; Member of Supervisory Board of SDF S.p.a.
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Paolo Tacchini
Director
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Director of De Agostini S.p.A.; Partner of Tacchini-Riboni-Belcredi Law Firm, 7, Rotonda Massimo D’Azeglio, 28100 Novara, Italy
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Alberto Toffoletto
Director
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Director of De Agostini S.p.A.; General Partner of B&D Holding di Marco Drago e C. S.a.p.a.; Partner of NCTM Law firm, 12, Via Agnello, 20121 Milan, Italy; Chairman of Crescita S.p.A.; Chairman of Crescita Holding; Director of Findim Finanziaria S.p.A.; Director of Effe 2005 – Gruppo Feltrinelli S.p.A.
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NAME AND POSITION WITH
DE AGOSTINI S.P.A. |
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PRINCIPAL EMPLOYMENT, EMPLOYER AND BUSINESS ADDRESS
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Marco Drago
Chairman
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Chairman and Director of De Agostini S.p.A.; Chairman and General Partner of B&D Holding di Marco Drago e C. S.a.p.a.; Deputy Chairman of Grupo Planeta De Agostini SL.; Director of De Agostini Editore S.p.A.; Director of DeA Capital S.p.A.; Director of IGT PLC; Director of Atresmedia Corporación de Medios de Comunicación S.A.; Director of Crescita S.p.A.
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Marco Boroli
Deputy Chairman
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Deputy Chairman; Director of B&D Finance S.p.A.; Director of De Agostini Editore S.p.A.; Director of DeA Capital S.p.A. |
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Pietro Boroli
Deputy Chairman
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Deputy Chairman and Director of De Agostini S.p.A.; Chairman of De Agostini Publishing Italia S.p.A.; Chairman of De Agostini Publishing S.p.A.; Chairman of De Agostini Editore S.p.A.; Chairman of De Agostini Libri S.p.A.; Director of Grupo Planeta De Agostini SL; Deputy Chairman of DeA Planeta SL, Executive Deputy Chairman of Editorial Planeta De Agostini SA.; Chairman of De Agostini Scuola S.p.A.; Director of DeA Planeta Libri S.r.l.; Director of Super! Broadcast S.r.l.; Director of De Agostini UK Limited; Director of Luigi Lavazza S.p.A.; Director of Rubinetterie Stella S.p.A.; Director of Venchi S.p.A.; Director of Eprice S.p.A.; Director of M-Dis Distribuzione Media S.p.A.
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Roberto Drago
Deputy Chairman
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Deputy Chairman and Director of De Agostini S.p.A.; General Partner of B&D Holding di Marco Drago e C. S.a.p.a.; Chairman and Managing Director of B&D Finance S.p.A.; Chairman of Camperio SIM S.p.A.; Chairman of DeA Factor S.p.A.; Chairman of AS5 S.r.l.; Director of Grupo Planeta De Agostini SL; Chairman of Fondazione De Agostini
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Renzo (Lorenzo) Pellicioli
Managing Director
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Managing Director and Director of De Agostini S.p.A.; General Partner of B&D Holding di Marco Drago e C. S.a.p.a.; Deputy Chairman and Director of IGT PLC; Sole Director of Investendo Due S.r.l.; Chairman of DeA Capital S.p.A.; Director of De Agostini Editore S.p.A.; Director of Supervisory Board of Banijay Group S.a.s.; Director of LDH S.a.s.; Director of Assicurazioni Generali S.p.A.
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Paolo Ceretti
General Manager
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General Manager of De Agostini S.p.A.; Managing Director of De Agostini Editore S.p.A.; Managing Director of DeA Capital S.p.A.; Director of Banijay Group S.a.s.; Director of DeA Communications S.A.; Director of DeA Capital Alternative Funds SGR S.p.A.; Managing Director of IDeAMI S.p.A.; Director of LDH S.a.s.
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NAME AND POSITION WITH
B&D HOLDING DI MARCO DRAGO E C. S.A.P.A. |
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PRINCIPAL EMPLOYMENT, EMPLOYER AND BUSINESS ADDRESS
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Marco Drago
Chairman and General Partner
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Chairman and Director of De Agostini S.p.A.; Chairman and General Partner of B&D Holding di Marco Drago e C. S.a.p.a.; Deputy Chairman of Grupo Planeta-De Agostini SL.; Director of De Agostini Editore S.p.A.; Director of DeA Capital S.p.A.; Director of IGT PLC; Director of Atresmedia Corporación de Medios de Comunicación S.A.; Director of Crescita S.p.A.
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Andrea Boroli
General Partner
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General Partner of B&D Holding di Marco Drago e C. S.a.p.a.; Director of B&D Finance S.p.A.; Sole Director of Partecipazioni Grafiche Italiane S.p.A.
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Alberto Boroli
General Partner
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General Partner of B&D Holding di Marco Drago e C. S.a.p.a.; Sole Director of Immobiliare OG S.r.l.; Deputy Chairman of Design & Artbook Made in Italy S.r.l.
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Roberto Drago
General Partner
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Deputy Chairman and Director of De Agostini S.p.A.; General Partner of B&D Holding di Marco Drago e C. S.a.p.a.; Chairman and Managing Director of B&D Finance S.p.A.; Chairman of Camperio SIM S.p.A.; Chairman of DeA Factor S.p.A.; Chairman of AS5 S.r.l.; Director of Grupo Planeta De Agostini SL; Chairman of Fondazione De Agostini
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Renzo (Lorenzo) Pellicioli
General Partner
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Managing Director and Director of De Agostini S.p.A.; General Partner of B&D Holding di Marco Drago e C. S.a.p.a.; Deputy Chairman and Director of IGT PLC; Sole Director of Investendo Due S.r.l.; Chairman of DeA Capital S.p.A.; Director of De Agostini Editore S.p.A.; Director of Supervisory Board of Banijay Group S.a.s.; Director of LDH S.a.s.; Director of Assicurazioni Generali S.p.A.
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Alberto Toffoletto
General Manager
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General Partner of B&D Holding di Marco Drago e C. S.a.p.a.; Director of De Agostini S.p.A.; Partner of NCTM Studio Legale Associato, via Agnello n. 12, 20121 Milan, Italy; Chairman of Crescita S.p.A.; Chairman of Crescita Holding; Director of Findim Finanziaria S.p.A.; Director of Effe 2005 – Gruppo Feltrinelli S.p.A.
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Drago Giorgio
General Partner
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General Partner of B&D Holding di Marco Drago e C. S.a.p.a., Deputy Chairman of De Agostini Editore S.p.A.
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NAME AND POSITION WITH
B&D HOLDING DI MARCO DRAGO E C. S.A.P.A. |
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PRINCIPAL EMPLOYMENT, EMPLOYER AND BUSINESS ADDRESS
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Marco Drago
Chairman and General Partner
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Chairman and Director of De Agostini S.p.A.; Chairman and General Partner of B&D Holding di Marco Drago e C. S.a.p.a.; Deputy Chairman of Grupo Planeta De Agostini SL.; Director of De Agostini Editore S.p.A.; Director of DeA Capital S.p.A.; Director of IGT PLC; Director of Atresmedia Corporación de Medios de Comunicación S.A.; Director of Crescita S.p.A.
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1. |
The terms of the particular Transaction to which this Confirmation relates are as follows:
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Trade Date:
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May 22, 2018
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Components:
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The Transaction will be divided into 4 individual tranches (each a “Tranche” and together the “Tranches”) and each Tranche will be divided into 20 individual components (each a “Component” and together the “Components”), as set forth in Appendix I hereto, in each case with the terms set forth in this Confirmation. The payments and deliveries to be made upon settlement of the Transaction pursuant to the Settlement Terms below will be determined separately for each Component of each Tranche as if such Component were a separate Transaction under the Agreement, but for all other purposes under the Agreement (including, without limitation, under Sections 5 and 6 of the Agreement), the Components for all Tranches, together, will be treated as one Transaction.
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Underwriting Agreement:
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The Underwriting Agreement dated May 22, 2018, among the Issuer, Counterparty, CS and Credit Suisse Securities (USA) LLC.
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Upfront Payment:
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Counterparty shall pay to CS the Upfront Payment Amount set forth in Appendix I hereto on the third Currency Business Day following the Trade Date.
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Shares:
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The Ordinary Shares, nominal value $0.10 per share, of International Game Technology PLC (NYSE: “IGT”) (the “Issuer”)
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Total Number of Shares:
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18,000,000
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Number of Shares:
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In respect of each Component, as set forth Appendix I hereto.
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Initial Share Price:
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As set forth in Appendix I hereto.
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Forward Floor Price:
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In respect of each Tranche, the product of (i) the Forward Floor Percentage set forth in Appendix I hereto for the relevant Tranche and (ii) the Initial Share Price.
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Forward Cap Price:
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In respect of each Tranche, the product of (i) the Forward Cap Percentage set forth in Appendix I hereto for the relevant Tranche and (ii) the Initial Share Price.
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Prepayment:
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Applicable to the extent provided in “Counterparty’s Election to Receive Prepayment Amount” below.
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Variable Obligation:
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Applicable
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Exchange:
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The New York Stock Exchange
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Related Exchange(s):
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All Exchanges
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Calculation Agent:
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CS; provided that, if an Event of Default pursuant to Section 5(a)(i) or 5(a)(vii) of the Agreement has occurred and is continuing with respect to CS, the Calculation Agent shall be a leading dealer in the United States over-the-counter equity derivative markets unaffiliated with either party and reasonably selected by Counterparty.
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Counterparty’s Election to Receive Prepayment Amount:
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If and only if paragraph (i) of the Collateral Requirement is satisfied, then Counterparty may, after such satisfaction, upon no less than five Currency Business Days’ prior written notice to CS, designate a Currency Business Day that is prior to the first Scheduled Valuation Date for Tranche 1 (the “Initial Valuation Date”), as set forth in Appendix I hereto (the designated Currency Business Day, the “Funding Date”), to receive from CS an amount in immediately available funds equal to the Prepayment Amount for such Funding Date; provided that CS shall not be obligated to pay the Prepayment Amount on the Funding Date unless, as of the Funding Date, (x) no Additional Termination Event and no Event of Default or Potential Event of Default with respect to Counterparty has occurred and is continuing and no Additional Disruption Event or other Extraordinary Event has occurred for which the consequences have not yet been implemented and (y) CS has received from Counterparty a certificate issued by the competent Companies Register and dated not earlier than five Scheduled Trading Days prior to the Funding Date stating that Counterparty is not subject to insolvency proceedings (such certificate, a “Companies Register Certificate”).
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Prepayment Amount:
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The sum over all Tranches of the product of (i) the Present Value of the Forward Floor Price for such Tranche as of the Funding Date multiplied by the Prepayment Percentage and (ii) the aggregate of the Number of Shares for all Components in such Tranche.
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Prepayment Percentage:
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As set forth in Appendix I.
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Present Value:
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For any amount as of any date, the present value of such amount as of such date calculated using a discount rate equal to the Swap Rate plus the Spread and assuming such amount were paid on the date that is one Settlement Cycle following the Valuation Date for the eleventh Component for the relevant Tranche.
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Swap Rate:
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As of any date, an interpolated rate for the relevant tenor specified in the definition of “Designated Maturity”, as determined by the Calculation Agent by reference to the mid-market U.S. dollar LIBOR swap curve as of such date as displayed on Bloomberg page “USSW” (or, if such page is not available or does not display such swap curve, such other source as the Calculation Agent determines).
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Designated Maturity:
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In respect of any calculation of the Present Value for a Tranche as of the Funding Date, the period of time from the Funding Date to the date that is one Settlement Cycle following the Valuation Date for the eleventh Component of such Tranche.
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Spread:
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As set forth in Appendix I hereto; provided that if the Funding Date has not yet occurred, CS may increase the Spread beginning on the 15-month anniversary of the Trade Date to reflect any material increase in the cost to CS of funding the Prepayment Amount as of the Funding Date including, without limitation, due to a change in internal funding costs as the result of a change in relevant market conditions from those prevailing on the Trade Date or a change in capital requirements applicable to CS or its affiliates from those in effect on the Trade Date, as certified by CS to Counterparty in reasonable detail.
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Collateral Requirement:
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(i) Satisfaction (or waiver by CS, such waiver to be provided only in writing) of the following conditions: (a) the delivery by Counterparty to CS or its Custodian of a number of Shares equal to the Total Number of Shares, pursuant to an executed Security Agreement reasonably satisfactory to each of the parties and based on the form being negotiated by the parties as of the Trade Date (the “Security Agreement” and such Shares, the “Pledged Shares”), and delivery by Counterparty of a supplement to the Confirmation reasonably satisfactory to each of the parties and based on the form being negotiated by the parties as of the Trade Date (including the Pledge Appendix thereto, the “Supplement”), in each case, with such modifications agreed by the parties, it being understood that (1) such Security Agreement and this Confirmation, as supplemented by the Supplement, shall together provide CS with a first priority perfected security interest in such Pledged Shares and the proceeds thereof (to the extent provided thereunder); (2) such Pledged Shares shall, at the election of Counterparty, be either (A) in certificated form registered on the books of the Issuer (or its transfer agent) in the name of Counterparty, with appropriate stock transfer forms executed by Counterparty in blank delivered to CS or its Custodian and with arrangements to be set forth in the Supplement and/or the Pledge Date Issuer Acknowledgment (as defined below) for entry of such Pledged Shares into book-entry form through the Clearance System following an enforcement event with respect to Counterparty or other event agreed by the parties (including regarding any forms, opinions or other documentation required by the Clearance System or the Issuer) reasonably satisfactory to CS agreed upon or (B) delivered in book-entry form through the Clearance System and, in the case of (B), such Pledged Shares to be deposited in the Collateral Account of Counterparty with the Custodian; and (3) such Pledged Shares shall be free of all encumbrances and Transfer Restrictions (as defined in the Supplement), other than Permitted Transfer Restrictions; (b) delivery by the Issuer of an Issuer Acknowledgment Letter to the Security Agreement and Supplement (the “Pledge Date Issuer Acknowledgment”) in a form reasonably acceptable to each of the parties; (c) delivery of opinions of recognized counsel to Counterparty in form and substance reasonably satisfactory to CS, including with respect to any assumptions or qualifications, |
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(1) with respect to each of Italy, New York and England (the “Transaction Jurisdictions”), to the extent the law of such Transaction Jurisdiction is applicable, (i) regarding the due authorization, execution, delivery and enforceability of the Security Agreement and the Supplement; (ii) that the Security Agreement and the Supplement do not conflict with or violate the law of such Transaction Jurisdiction or Counterparty’s constitutional documents; (iii) that all necessary consents to and approvals for the foregoing have been obtained (or no such consents or approvals are necessary); (iv) regarding the validity and perfection of CS’s security interest in the Pledged Shares; (v) with respect to the Security Agreement and the Supplement, regarding the other topics covered in the opinions issued pursuant to Section 2(a)(ix) of this Confirmation; and (vi) that the Security Agreement and the Supplement do not conflict with any specified contractual restriction binding on or affecting the Counterparty or the Pledged Shares, (and, in each case, for the avoidance of doubt, such opinions will not address Gaming Laws); (2) with respect to each Specified Gaming Jurisdiction, that the pledge of the Pledged Shares by Counterparty and the performance of Counterparty’s obligations under the Agreement, this Confirmation (as supplemented by the Supplement) and the Security Agreement will not result in a violation of relevant Gaming Laws (as defined below) in such Specified Gaming Jurisdiction and all necessary consents and approvals on the part of Counterparty and Issuer have been obtained from the relevant Gaming Authorities in such Specified Gaming Jurisdiction, are in effect, and are being complied with; (3) with respect to each Specified Gaming Jurisdiction, that the exercise of rights and remedies pursuant to the Agreement, this Confirmation (as supplemented by the Supplement) and the Security Agreement, including any potential sale of the Pledged Shares by CS in a foreclosure or otherwise upon or following the occurrence of an Early Termination Date (whether following an Event of Default or otherwise) would not result in a violation of any Gaming Laws in such Specified Gaming Jurisdiction, nor would any consents or approvals from the Gaming Authorities in such Specified Gaming Jurisdictions be required for the exercise of such rights and remedies, provided, however, that such opinions may be subject to reasonable and customary assumptions and qualifications, and in particular the assumption that any foreclosure or other exercise of remedies by CS will be done in compliance with the section of the Supplement entitled “Matters Related to Enforcement” (the “Remedies Limitations”); and (d) amendment of the Articles of Association of Issuer in the form attached as Exhibit II hereto. For the avoidance of doubt, a Transaction Jurisdiction may also be a Specified Gaming Jurisdiction.
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(ii) If for any reason Counterparty has not satisfied the conditions set out in paragraph (i) prior to the one-year anniversary of the Trade Date (or such later date as the parties may agree), then by such date Counterparty shall satisfy the Collateral Requirement by Transfer of Eligible Collateral (as defined in Section 5 of this Confirmation) pursuant to the Annex and Section 5 of this Confirmation (or such other collateral and in such other amount as may be agreed by the parties) (any such collateral, “Alternative Collateral”). For the avoidance of doubt, Counterparty may, at its election, also satisfy the Collateral Requirement pursuant to this clause (ii) prior to the one-year anniversary of the Trade Date.
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(iii) At any time after providing Alternative Collateral, Counterparty may satisfy the requirements of paragraph (i) instead of paragraph (ii), in which case CS shall return and release such Alternative Collateral to Counterparty in accordance with the terms of the Annex.
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(iv) For the avoidance of doubt and notwithstanding anything to the contrary herein, Counterparty shall not be entitled to designate a Funding Date to receive the Prepayment Amount unless it has satisfied the conditions set out in paragraph (i).
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Specified Gaming Jurisdictions:
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As of the Trade Date, as set forth in Appendix II hereto. Counterparty represents and warrants that all jurisdictions that as of the Trade Date satisfy the Specified Gaming Jurisdiction Criteria are listed in Appendix II.
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As of any subsequent date of determination, any jurisdiction previously identified as a Specified Gaming Jurisdiction and any additional jurisdiction that as of such date satisfies the Specified Gaming Jurisdiction Criteria. “Specified Gaming Jurisdiction Criteria” has the meaning specified in Appendix II hereto.
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Permitted Transfer Restrictions:
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Transfer Restrictions with respect to the Pledged Shares (1) that are those contemplated by the Interpretive Letter (as defined below), (2) arising from the status of Counterparty as an “affiliate” of the Issuer but only to the extent CS (or its affiliates) has not completed its sale of the Total Number of Shares pursuant to the registration statement in accordance with the Underwriting Agreement or upon the return of any such Pledged Shares to Counterparty, and (3) arising under Gaming Laws that would limit CS’s ability to exercise rights and remedies if CS were to fail to comply with the Remedies Limitations.
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Custodian:
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Credit Suisse Securities (USA) LLC
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Valuation Date(s):
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As set forth in Appendix I hereto (or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day that is not already a Valuation Date for another Component).
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Disrupted Valuation Days:
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If any Valuation Date is a Disrupted Day, the Valuation Date shall be the first succeeding Scheduled Trading Day that is not a Disrupted Day and that is not and is not deemed to be a Valuation Date in respect of this Transaction; provided, however, that, if the Valuation Date has not occurred pursuant to the clause immediately preceding this proviso as of the Final Disruption Date for the Tranche of which such Component is a part, that Final Disruption Date shall be the Valuation Date (irrespective of whether such day is a Valuation Date in respect of this Transaction), and the Calculation Agent shall determine the VWAP Price for that Valuation Date by using its commercially reasonable estimate of the value of the Shares as of the Valuation Time on that Final Disruption Date.
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Notwithstanding the foregoing and anything to the contrary in the Equity Definitions, if a Market Disruption Event occurs on any Valuation Date, the Calculation Agent may determine that such Valuation Date is a Disrupted Day only in part, in which case the Calculation Agent shall (i) make adjustments to the number of Shares for the relevant Component for which such day shall be the Valuation Date and shall designate the Scheduled Trading Day determined in the manner described in the first paragraph of this “Disrupted Valuation Days” provision as the Valuation Date for the remaining Shares for such Component and (ii) determine the VWAP Price for such Disrupted Day based on transactions in the Shares on such Disrupted Day taking into account the nature and duration of such Market Disruption Event and the historical trading patterns, volume and price of the Shares. Section 6.6 of the Equity Definitions shall not apply to any Valuation Date.
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Final Disruption Date:
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In respect of each Tranche, as set forth in Appendix I hereto.
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Market Disruption Event:
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The first sentence of Section 6.3(a) of the Equity Definitions is hereby amended by deleting the words “during the one hour period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be” in the third, fourth and fifth lines thereof, and replacing the words “or (iii) an Early Closure” with “(iii) an Early Closure, or (iv) a Regulatory Disruption.”
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Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the term “Scheduled Closing Time” in the fourth line thereof.
|
||
Any Scheduled Trading Day on which, as of the date hereof, the Exchange is scheduled to close prior to its normal close of trading shall be deemed not to be a Scheduled Trading Day; if a closure of the Exchange prior to its normal close of trading on any Scheduled Trading Day is scheduled following the date hereof, then such Scheduled Trading Day shall be deemed to be a Disrupted Day in full.
|
||
Regulatory Disruption:
|
Any event that CS, in its reasonable judgment based on the advice of counsel, determines makes it advisable with regard to any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by CS), for CS to refrain from or decrease any market activity in connection with the Transaction. CS shall notify Counterparty as soon as reasonably practicable that a Regulatory Disruption has occurred and the Valuation Dates affected by it.
|
|
Disrupted Day:
|
The definition of “Disrupted Day” in Section 6.4 of the Equity Definitions shall be amended by adding the following sentence after the first sentence: “A Scheduled Trading Day on which a Related Exchange fails to open during its regular trading session will not be a Disrupted Day if the Calculation Agent determines that such failure will not have a material adverse impact on CS’s ability to unwind any hedging transactions related to the Transaction.”
|
Settlement Method Election:
|
Applicable on a Tranche-by-Tranche basis; provided that Section 7.1 of the Equity Definitions is modified by inserting the phrase “, Modified Physical Settlement” after “Cash Settlement” in the sixth line thereof; provided further that Counterparty shall not be entitled to elect Physical Settlement or Modified Physical Settlement prior to the satisfaction of the Physical Settlement Conditions; provided further that if, (1) in the reasonable judgment of CS, Counterparty would not be able to deliver the Number of Shares to be Delivered with respect to which the Representation and Agreement set forth in Section 9.11 of the Equity Definitions would be true and satisfied as of 4:00 p.m. New York City time on the Settlement Method Election Date as if (x) such date were a Settlement Date and (y) Physical Settlement or Modified Physical Settlement were applicable or (2) Counterparty shall not have delivered to CS a Companies Register Certificate with respect to Counterparty dated not earlier than five Scheduled Trading Days prior to the Settlement Method Election Date, then CS shall have the right, but not the obligation, to elect that Counterparty be deemed to have elected Cash Settlement, notwithstanding any actual or deemed election by Counterparty to the contrary.
|
|
Electing Party:
|
Counterparty
|
|
Settlement Method Election Date:
|
The date that is 10 Scheduled Trading Days immediately prior to the first Scheduled Valuation Date for the relevant Tranche.
|
|
Default Settlement Method:
|
Cash Settlement
|
|
Physical Settlement Conditions:
|
Satisfaction (or waiver by CS, such waiver to be provided only in writing) of the following conditions on or prior to the Settlement Method Election Date: (i) a number of Shares equal to the aggregate Number of Shares for such Tranche (which may be the Pledged Shares) shall have been delivered in book-entry form through the Clearance System to the Collateral Account (or if not the Pledged Shares, to another account of Counterparty at CS or its Custodian), (ii) delivery of opinions of recognized counsel to Counterparty, in form and substance reasonably satisfactory to CS, including with respect to any assumptions or qualifications, (1) with respect to each Transaction Jurisdiction, to the extent the law of such Transaction Jurisdiction is applicable, that the physical settlement of the Transaction (including the return of Shares to securities lenders as contemplated by the Interpretive Letter) will not result in a violation of any applicable law in such Transaction Jurisdiction, and all necessary consents and approvals on the part of Counterparty and Issuer have been obtained (and for the avoidance of doubt, such opinions will not address Gaming Laws); and (2) with respect to each Specified Gaming Jurisdiction, that the physical settlement of the Transaction (including the return of Shares to securities lenders as contemplated by the Interpretive Letter) will not result in a violation of any Gaming Laws in such Specified Gaming Jurisdiction, and all necessary consents and approvals on the part of Counterparty and Issuer have been obtained from the relevant Gaming Authorities in such Specified Gaming Jurisdiction, are in effect and are being complied with; and (iii) delivery by the Issuer of an Issuer Acknowledgment Letter with respect to Physical Settlement or Modified Physical Settlement of the Transaction in a form reasonably acceptable to each of the parties (with such modifications as the parties may agree). For the avoidance of doubt, to the extent Counterparty delivers Shares pursuant to clause (i) above in excess of the relevant Number of Shares to be Delivered, such excess shall be returned to Counterparty in accordance with the terms hereof and of the Security Agreement and Supplement, as applicable.
|
|
Settlement Price:
|
For each Component, the VWAP Price for the applicable Valuation Date.
|
|
Settlement Currency:
|
USD
|
|
Cash Settlement:
|
If the Funding Date has occurred, the following provisions shall apply in lieu of the provisions set forth in Section 8.4(b) of the Equity Definitions. If the aggregate of the Forward Cash Settlement Amounts for all Components for the relevant Tranche minus the aggregate of the Preliminary Forward Cash Settlement Amounts paid by Counterparty to CS for the relevant Tranche minus the aggregate of the Holdback Amounts for all Components for the relevant Tranche (the result of such calculation, the “Cash Settlement True-Up”) is positive, Counterparty shall pay to CS the Cash Settlement True-Up on the Cash Settlement Payment Date. If the Cash Settlement True-Up is negative, CS shall pay Counterparty the absolute value of the Cash Settlement True-Up on the applicable Cash Settlement Payment Date.
|
|
If the Funding Date has not occurred, Section 8.4(a) of the Equity Definitions shall apply.
|
||
Holdback Amount:
|
In respect of a Component, an amount equal to the product of (i) 100% minus the Prepayment Percentage for the relevant Tranche, (ii) the Forward Floor Price for the relevant Tranche and (iii) the Number of Shares for such Component.
|
|
Preliminary Forward Cash Settlement Payment Date:
|
If the Funding Date has occurred, the 4th Scheduled Trading Day immediately preceding the first Scheduled Valuation Date for the relevant Tranche.
|
|
Preliminary Forward Cash Settlement Amount:
|
If the Funding Date has occurred, an amount equal to the aggregate over all Components in the relevant Tranche of 105% of the Forward Cash Settlement Amount that would apply if the Valuation Date for each such Component were the Scheduled Trading Day immediately preceding the Preliminary Forward Cash Settlement Payment Date, provided that, if on any day following the Preliminary Forward Cash Settlement Payment Date and on or preceding the final Valuation Date for such Tranche, the Preliminary Forward Cash Settlement Amount, if it were calculated as of such day (such amount, the “Supplemental Preliminary Forward Cash Settlement Amount”), is greater than the sum of the Preliminary Forward Cash Settlement Amount and any Excess Amounts (as defined below) previously paid by Counterparty to CS (the “Previously Paid Amounts”), Counterparty shall, within two Currency Business Days of CS’s request, pay an amount equal to the excess (an “Excess Amount”) of the Supplemental Preliminary Forward Cash Settlement Amount over the Previously Paid Amounts; provided, further that CS may not request an Excess Amount more often than one time in any calendar week period and CS may not request an Excess Amount unless it is at least 2% of the Previously Paid Amounts.
|
|
VWAP Price:
|
On any day, the Rule 10b-18 dollar volume-weighted average price per Share for the regular trading session on the Exchange (without regard to pre-open or after-hours trading outside of such regular trading session for such day) on such day as published on Bloomberg Page “IGT <Equity> AQR SEC” or any successor page thereto, or if such price is not so reported on such day or is manifestly erroneous for any reason, as reasonably determined by the Calculation Agent.
|
|
Physical Settlement:
|
Section 9.2 of the Equity Definitions shall apply; provided that clause (a)(iii) thereof is hereby amended by adding “Buyer will pay to Seller the relevant Holdback Amount and” after the word “then”.
|
|
Modified Physical Settlement:
|
If Modified Physical Settlement is applicable, then, notwithstanding anything to the contrary in this Confirmation or the Equity Definitions, on the relevant Settlement Date, Buyer will pay to Seller an amount equal to the Modified Forward Price multiplied by the Number of Shares and Seller will deliver to Buyer the Number of Shares and will pay to Buyer the Fractional Share Amount, if any. If “Prepayment” is applicable, Buyer will also pay to Seller the relevant Holdback Amount on the relevant Settlement Date.
|
|
Modified Forward Price:
|
For purposes of Modified Physical Settlement:
|
|
(a) if “Prepayment” is applicable:
|
||
(i) if the Settlement Price is less than or equal to the Forward Cap Price but greater than the Forward Floor Price, such Settlement Price minus the Forward Floor Price;
|
||
(ii) if the Settlement Price is greater than the Forward Cap Price, the Forward Cap Price minus the Forward Floor Price; and
|
||
(iii) if the Settlement Price is less than or equal to the Forward Floor Price, zero; and
|
||
(b) if “Prepayment” is not applicable:
|
||
(i) if the Settlement Price is less than or equal to the Forward Cap Price but greater than the Forward Floor Price, such Settlement Price;
|
||
(ii) if the Settlement Price is greater than the Forward Cap Price, the Forward Cap Price; and
|
||
(iii) if the Settlement Price is less than or equal to the Forward Floor Price, the Forward Floor Price
|
||
Automatic Physical Settlement:
|
If (i) Cash Settlement is applicable to such Tranche and Counterparty has not by 5:00 p.m., New York City time on any Preliminary Forward Cash Settlement Payment Date delivered the relevant Preliminary Forward Cash Settlement Amount or has not paid when due any Excess Amount, and (ii) (x) the Physical Settlement Conditions have been satisfied (or CS reasonably determines that CS is permitted to take delivery of, and exercise remedies in respect of, the Shares pursuant to this Confirmation (as supplemented by the Supplement) and the Security Agreement under relevant Gaming Laws) and (y) the collateral then held under the Security Agreement or the Annex by or on behalf of CS includes a number of Shares with respect to which the provisions of Representation and Agreement set forth in Section 9.11 of the Equity Definitions are true and satisfied (or, at the absolute discretion of CS, Shares with respect to which such provisions of Representation and Agreement are not true or satisfied) at least equal to the Number of Shares to be Delivered for all Components of such Tranche (or portion thereof, as determined by CS), then, if CS so elects, (a) Counterparty shall be deemed to have elected Physical Settlement with respect to that Tranche (or portion thereof, as determined by CS), notwithstanding any election or deemed election by Counterparty to the contrary and (b) the delivery required by Section 9.2 of the Equity Definitions shall be effected, in whole or in part, as the case may be, by delivery from the Collateral Account to CS of a number of Shares equal to the Number of Shares to be Delivered for some or all Components of such Tranche (as determined by CS) on such Settlement Date. If CS elects Automatic Physical Settlement in respect of Counterparty’s failure to make a payment described in clause (i) of the first sentence of “Automatic Physical Settlement”, CS shall not have the right to designate an Early Termination Date solely by reason of such failure. For the avoidance of doubt, the parties agree that, notwithstanding the foregoing, if Counterparty elects Cash Settlement or is deemed to have elected Cash Settlement and does not deliver a Preliminary Forward Cash Settlement Amount, any Excess Amount or any positive Cash Settlement True-Up, Counterparty shall be required to compensate CS for any losses incurred by CS and/or any affiliate of CS as a result of such failure to deliver, including without limitation market losses incurred in connection with any decline in the value of the Shares subsequent to a relevant Valuation Date.
|
|
Cash Settlement Payment Date:
|
For all Components of a Tranche, the date that is three Currency Business Days following the final Valuation Date for such Tranche.
|
|
Settlement Date:
|
For each Component of a Tranche, the date that is one Settlement Cycle following the Valuation Date for such Component.
|
|
Obligations with Respect to Excess Cash Dividends:
|
If there occurs an Excess Cash Dividend, then Counterparty shall make a cash payment to CS on the Currency Business Day on which such Excess Cash Dividend is paid by the Issuer to holders of Shares (whether or not after the final Cash Settlement Payment Date or Settlement Date) of an amount equal to the product of (i) the Hedge Ratio as of the close of the regular trading session on the Exchange on the Exchange Business Day immediately preceding the ex-dividend date for such Excess Cash Dividend and (ii) the amount of such Excess Cash Dividend, as determined by the Calculation Agent. No other adjustment to the Transaction shall be made in respect of an Excess Cash Dividend.
|
|
Hedge Ratio:
|
On any day, a number of Shares that CS and/or its affiliates theoretically would be short in order to hedge the equity price risk of the Transaction as of the close of the regular trading session on the Exchange on such day, as determined by the Calculation Agent.
|
|
Excess Cash Dividend:
|
That portion, if any, of the per Share amount of any Ordinary Cash Dividend that, together with the amount of all previous Ordinary Cash Dividends, if any, for which the ex-dividend date occurs within the same Dividend Period, exceeds the Contractual Dividend Amount for such Dividend Period, as determined by the Calculation Agent.
|
|
Ordinary Cash Dividends:
|
Any cash Relevant Dividend that does not exceed the Quarterly Dividend Amount set forth in Appendix I hereto; provided that the parties agree that a cash Relevant Dividend in excess of such amount per calendar quarter or a cash Relevant Dividend with an ex-dividend date in the same calendar quarter as a previous Ordinary Cash Dividend to the extent the aggregate amount of such Relevant Dividends in the same calendar quarter exceed the Quarterly Dividend Amount shall be an Extraordinary Dividend and not an Ordinary Cash Dividend.
|
|
Relevant Dividend:
|
Any dividend or distribution on the Shares for which the ex-dividend date occurs from and including the Trade Date to and including the final Valuation Date.
|
|
Contractual Dividend Amount:
|
USD 0.00 per Share (subject to adjustment (but not below zero) by the Calculation Agent in accordance with Calculation Agent Adjustment to account for any Potential Adjustment Event, and subject to adjustment to account for any change to the frequency of payment of the Issuer’s regular dividend).
|
|
Dividend Period:
|
The period from, but excluding, the Trade Date to, and including, the final Valuation Date.
|
|
Obligations with Respect to Extraordinary Dividends:
|
Subject to the paragraph immediately below, if there occurs an Extraordinary Dividend, then Counterparty shall make a payment or delivery, as the case may be, to CS on the Currency Business Day (or Clearance System Business Day, as applicable) on which such Extraordinary Dividend is paid or delivered by the Issuer to holders of Shares (whether or not after the final Cash Settlement Payment Date or Settlement Date) of an amount of the same type of cash or other property so paid or delivered by the Issuer equal to the product of (i) the Hedge Ratio as of the close of the regular trading session on the Exchange on the Exchange Business Day immediately preceding the ex-dividend date for such Extraordinary Dividend and (ii) the amount of such cash or property that would be received by a holder of one Share in such Extraordinary Dividend, as determined by the Calculation Agent (such amount to be paid or delivered by Counterparty, the “Extraordinary Dividend Amount”). For the avoidance of doubt, the parties acknowledge and agree that, in addition to the payment or delivery by Counterparty to CS in respect of an Extraordinary Dividend, the Calculation Agent may adjust the Transaction pursuant to the Method of Adjustment for Share Adjustments (as modified under this Confirmation), but in so doing shall take into account the foregoing payment or delivery.
|
|
Notwithstanding anything to the contrary in the preceding paragraph, in the case of an Extraordinary Dividend with a value per Share that exceeds five percent of the closing price per Share on the Scheduled Trading Day prior to the announcement thereof, if a Funding Date has occurred, Counterparty shall make a payment to CS no later than two Currency Business Days prior to the record date for such Extraordinary Dividend, (x) in the case of a cash Extraordinary Dividend, of the Extraordinary Dividend Amount or (y) in the case of a non-cash Extraordinary Dividend, of an amount in cash equal to the value of the Extraordinary Dividend Amount, as determined by the Calculation Agent (the “Extraordinary Dividend Equivalent Amount”), provided that, in the case of this clause (y), Counterparty shall deliver to CS such non-cash Extraordinary Dividend on the Currency Business Day that such non-cash Extraordinary Dividend is delivered by the Issuer to holders of Shares and, upon receipt of such non-cash Extraordinary Dividend and CS shall return the corresponding Extraordinary Dividend Equivalent Amount.
|
||
Extraordinary Dividend:
|
Any Relevant Dividend that is not of a type described in clause (i) or subclause (A) or (B) of clause (ii) of Section 11.2(e) of the Equity Definitions, is not a distribution of Spin-off Shares (as defined below) and is not an Ordinary Cash Dividend, including without limitation any Relevant Dividend that is (i) a dividend or distribution declared on the Shares at a time at which the Issuer has not previously declared or paid dividends or distributions on such Shares for the prior four quarterly periods, (ii) a payment or distribution by the Issuer to holders of Shares that the Issuer announces will be an “extraordinary” or “special” dividend or distribution, (iii) a payment by the Issuer to holders of Shares out of the Issuer’s capital and surplus, (iv) a dividend or distribution paid within the same quarterly period as any prior dividend or distribution or (v) any other “special” dividend or distribution on the Shares that is, by its terms or declared intent, outside the normal course of operations or normal dividend policies or practices of the Issuer.
|
Potential Adjustment Events:
|
If an event occurs that constitutes both a Potential Adjustment Event under Section 11.2(e)(ii)(C) of the Equity Definitions and a Spin-off as described below, it shall be treated hereunder as a Spin-off and not as a Potential Adjustment Event.
|
|
Method of Adjustment:
|
Calculation Agent Adjustment.
|
|
Spin-off:
|
If there occurs a distribution of New Shares (the “Spin-off Shares”) of an issuer other than the Issuer (the “Spin-off Issuer”) to holders of the Shares (the “Original Shares”), then the Calculation Agent shall adjust the Transaction in accordance with the “Fission Method” provision below. Solely for purposes of this paragraph, “New Shares” means ordinary or common shares of the Spin-off Issuer that are, or that as of the ex-dividend date of such Spin-off are, publicly quoted, traded or listed on either the New York Stock Exchange or The NASDAQ Global Select Market (or their respective successors).
|
|
Fission Method:
|
The Calculation Agent shall adjust the terms of the Transaction such that, as of the ex-dividend date for such Spin-off, the Transaction shall be considered two separate Transactions, each with terms identical to the original Transaction (the “Original Transaction”), except that: (i) the “Shares” for the Original Transaction (the “Original Shares Transaction”) shall be the Original Shares and the “Shares” for the other transaction (the “Spin-off Shares Transaction”) shall be the Spin-off Shares, (ii) the Number of Shares for each Component of the Original Shares Transaction shall remain unchanged from the Number of Shares for each Component of the Original Transaction, (iii) the Number of Shares for each Component of the Spin-off Shares Transaction shall equal the product of (A) the Number of Shares for the relevant Component of the Original Transaction (as in effect immediately prior to the ex-dividend date for such Spin-off) and (B) the number of Spin-off Shares that a holder of one share of Original Shares would have owned or been entitled to receive in connection with such Spin-off (provided, that the Calculation Agent may add Components and make adjustments to the Number of Shares for any Component of the Spin-off Shares Transaction in order to account for expected liquidity with respect to the Spin-off Shares),
|
|
|
and (iv) the Forward Floor Price and the Forward Cap Price for each of the Original Shares Transaction and the Spin-off Shares Transaction shall be adjusted by the Calculation Agent to reflect the relative market values per share and dividend practices of the Original Shares and the Spin-off Shares immediately following the ex-dividend date for such Spin-off, as determined by the Calculation Agent such that the sum of the Forward Floor Prices and Forward Cap Prices, respectively, of the Original Shares Transaction and the Spin-off Shares Transaction will equal the Forward Floor Price and Forward Cap Price, respectively, of the Original Transaction; provided, however, that the Calculation Agent may make additional adjustments to the Forward Floor Price and the Forward Cap Price for each of the Original Shares Transaction and the Spin-off Shares Transaction to account for changes in the theoretical fair value of the Transaction as if Calculation Agent Adjustment for Share Adjustments (as modified under this Confirmation) applied (including, without limitation, adjustments to account for changes in volatility, expected dividends, stock loan rate or liquidity relevant to the Original Shares, the Spin-off Shares, the Original Shares Transaction or to the Spin-off Shares Transaction). Following the application of this Fission Method provision, this Confirmation shall apply in all respects (except as provided above) to both the Original Shares Transaction and the Spin-off Shares Transaction as if each were a separate Transaction under the Agreement.
|
|
|
|
Consequences of Merger Events:
|
||
Share-for-Share:
|
Modified Calculation Agent Adjustment
|
|
Share-for-Other:
|
Cancellation and Payment
|
|
Share-for-Combined:
|
Component Adjustment
|
|
Tender Offer:
|
Applicable; provided, however, that the definition of “Tender Offer”, “Tender Offer Date” and “Announcement Date” in Section 12.1 of the Equity Definitions are each amended by adding after the words “voting shares” the words “, voting power or Shares”.
|
|
Consequences of Tender Offers:
|
||
Share-for-Share:
|
Modified Calculation Agent Adjustment
|
|
Share-for-Other:
|
Modified Calculation Agent Adjustment
|
|
Share-for-Combined:
|
Modified Calculation Agent Adjustment
|
|
Composition of Combined Consideration:
|
Not Applicable: provided that, notwithstanding Sections 12.1 and 12.5(b) of the Equity Definitions, to the extent that the composition of the consideration for the relevant Shares pursuant to a Tender Offer or Merger Event could be determined by a holder of the Shares, the Calculation Agent will determine such composition.
|
|
Announcement Event:
|
(i) The public announcement by any entity of (x) any transaction or event that, if completed, would constitute a Merger Event or Tender Offer, (y) any acquisition or disposition or combination thereof by the Issuer or any of its subsidiaries where the aggregate consideration exceeds USD 1.25 billion (an “Acquisition Transaction”) or (z) the intention to enter into a Merger Event or Tender Offer or an Acquisition Transaction, (ii) the public announcement by Issuer of an intention to solicit or enter into, or to explore strategic alternatives or other similar undertakings, that the Calculation Agent determines is reasonably likely to result in a Merger Event, a Tender Offer or an Acquisition Transaction or (iii) any subsequent public announcement by any entity of a withdrawal, discontinuation, termination or other change to a transaction or intention that is the subject of an announcement of the type described in clause (i) or (ii) of this sentence, as determined, in each case, by the Calculation Agent (whether such announcement is made by the Issuer or a third party). For purposes of this definition of “Announcement Event,” the remainder of the definition of “Merger Event” in Section 12.1(b) of the Equity Definitions following the definition of “Reverse Merger” therein and starting with “, in each case” shall be disregarded.
|
|
Consequences of Announcement Events:
|
Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions, but solely for purposes of accounting for the economic effect of changes in the volatility or liquidity of the Shares during the period from the date of the Announcement Event to the Merger Date, Tender Offer Date or date of the Acquisition Transaction (or, if earlier, the relevant Valuation Date) on the theoretical value of the Transaction; provided that references to “Tender Offer” shall be replaced by references to “Announcement Event” and references to “Tender Offer Date” shall be replaced by references to “date of such Announcement Event” and the Calculation Agent may make (i) one such adjustment following the Announcement Event and (ii) one further such adjustment on the earliest to occur of (x) the date on which the transaction or intention described in such Announcement Event (as modified herein) is withdrawn, discontinued or terminated, (y) the relevant Valuation Date and (z) any Early Termination Date (whether following an Event of Default or otherwise) or other date of cancellation or termination in respect of the Transaction (the “Announcement Event Adjustment Date”); provided, further that any adjustment made on the Announcement Event Adjustment Date will be made only to reflect the cumulative economic effect of such changes in volatility or liquidity on the Transaction of the Announcement Event and will be made without duplication of, and will not be duplicated in, any other adjustment or cancellation valuation made pursuant to this Confirmation, the Equity Definitions or the Agreement. An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, to which Article 12 of the Equity Definitions is applicable.
|
|
New Shares:
|
In the definition of New Shares in Section 12.1(i) of the Equity Definitions, the text in clause (i) thereof shall be deleted in its entirety and replaced with “publicly quoted, traded or listed on either the New York Stock Exchange or The NASDAQ Global Select Market (or their respective successors)”.
|
|
Nationalization, Insolvency or Delisting:
|
Cancellation and Payment; provided, however, 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 for the Shares is located in the United States and such Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange or The NASDAQ Global Select Market (or their respective successors); if such Shares are immediately re-listed, re-traded or re-quoted on any such exchange or quotation system, such exchange or quotation system shall be deemed to be the Exchange for such Shares.
|
|
Additional Disruption Events:
|
||
Change in Law:
|
Applicable; provided that Section 12.9(a)(ii) is hereby amended by (w) replacing the phrase “the interpretation” in the third line thereof with the phrase “, or announcement or statement of, the interpretation (whether or not formally published),” (x) adding the words “or any Hedge Positions” after the word “Shares” in the clause (X) thereof, (y) immediately following the word “Transaction” in Section 12.9(a)(ii)(X) of the Equity Definitions, adding the phrase “in the manner contemplated by the Hedging Party on the Trade Date” and (z) adding the words “, or holding, acquiring or disposing of Shares or any Hedge Positions relating,” after the word “obligations” in clause (Y) thereof provided, further, that the parties agree that for purposes of Section 12.9(a)(ii) of the Equity Definitions, “any applicable law or regulation” includes the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (as may be amended or supplemented from time to time), any rules and regulations promulgated thereunder, any similar law or regulation and any adoption or promulgation of new regulations authorized or mandated by existing statute, and the consequences specified in Section 12.9(b)(i) of the Equity Definitions shall apply to any Change in Law arising from any such act, rule or regulation.
|
|
Failure to Deliver:
|
Not Applicable
|
|
Insolvency Filing:
|
Applicable
|
|
Hedging Disruption:
|
Applicable
|
|
Hedging Party:
|
CS
|
|
Increased Cost of Hedging:
|
Not Applicable
|
|
Loss of Stock Borrow:
|
Applicable
|
|
Maximum Stock Loan Rate:
|
As set forth in Appendix I hereto
|
|
Hedging Party:
|
CS
|
|
Increased Cost of Stock Borrow:
|
Applicable
|
|
Initial Stock Loan Rate:
|
As set forth in Appendix I hereto
|
|
Hedging Party:
|
CS
|
|
Free Float Reduction Event:
|
A reduction in the Free Float of the Shares, such that the Total Number of Shares exceeds 30% of the Free Float. Upon the occurrence of a Free Float Reduction Event, the Hedging Party may elect, while such Free Float Reduction Event is continuing and upon notice to the Non-Hedging Party, to terminate that portion of the Transaction necessary to eliminate the continuance of the Free Float Reduction Event, as determined by the Hedging Party, in which event, the Determining Party will then determine the Cancellation Amount payable by one party to the other in respect of such terminated portion of the Transaction. For purposes of the Free Float Reduction Event: (i) “Free Float” means the total number of outstanding Shares issued and outstanding minus the total number of Shares directly or indirectly owned by Insiders (including Shares underlying any synthetic long positions via cash- or physically-settled derivative contracts); and (ii) “Insider” means (1) the Issuer (but in determining the number of Shares directly or indirectly owned by the Issuer, excluding any Shares held as treasury shares), (2) any person or entity who holds a seat on the Issuer’s board of directors, (3) Counterparty and its affiliates, (4) any other holder of more than 10% of the outstanding Shares that is neither a registered investment company under the Investment Company Act of 1940, as amended, nor engaged primarily in the business of making investments in securities, or (5) any person or entity that has publicly announced an intention to take any of the actions referenced in clauses (b) through (j) of Item 4 of Schedule 13D.
|
|
Hedging Party:
|
CS
|
|
Determining Party:
|
For all Extraordinary Events and Additional Disruption Events, CS
|
|
Non-Reliance:
|
Applicable
|
|
Agreements and Acknowledgments Regarding Hedging Activities:
|
Applicable
|
|
Additional Acknowledgments:
|
Applicable
|
|
Suspension Day:
|
Any day (i) on which for any reason, the prospectus contemplated by the Underwriting Agreement ceases to satisfy the requirements of the Underwriting Agreement, (ii) on which CS has not received the deliverables contemplated by Section 4 (Certain Agreements of the Issuer, CS and the Counterparty) of the Underwriting Agreement or with respect to which the Issuer has not satisfied its obligations under Section 4 (Certain Agreements of the Issuer, CS and the Counterparty) of the Underwriting Agreement, in each case in form and substance satisfactory to CS, (iii) on which CS reasonably believes, based on advice of counsel, that there is a material risk the registration statement contains a material misstatement or omission or (iv) during an Interruption Period (as defined in the Underwriting Agreement).
|
|
Determinations:
|
All calculations, adjustments and determinations made by the Calculation Agent, Hedging Party or Determining Party, as the case may be, shall be made in good faith and in a commercially reasonable manner. Upon the occurrence of an event that would permit CS to make a calculation, adjustment and/or determination hereunder in its capacity as the Calculation Agent, Hedging Party or Determining Party or pursuant to Section 2(c)(ii) or (iii) of this Confirmation, prior to making such calculation, adjustment or determination, provided that no Event of Default has occurred and is continuing with respect to Counterparty and, unless CS notifies Counterparty that the proposed calculation, adjustment or determination will not affect CS’s hedging activity relating to the Shares or the Issuer, Counterparty has provided a written certification that it is not aware of any material nonpublic information concerning the Shares, or the business, operations or prospects of the Issuer, CS shall use reasonable efforts to consult with Counterparty regarding such calculation, adjustment or determination. The foregoing shall not limit the rights of CS to make at any time, or delay CS in making at any time, such calculation, adjustment or determination. Upon request of Counterparty, CS shall, as promptly as practicable, provide Counterparty a report displaying in reasonable detail the basis for such calculation, adjustment or determination (including assumptions used therein), provided that CS shall not be obligated to disclose any proprietary or confidential information.
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Optional Early Unwind:
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Counterparty may request to terminate any Tranche of this Transaction (in whole or in part and specifying whether such request is to terminate such Tranche or Tranches with consideration to be delivered in cash or, to the extent the termination consideration would be payable by Counterparty to CS, book-entry Shares) on any Scheduled Trading Day prior to the first scheduled Valuation Date for such Tranche, in which case CS shall use reasonable efforts to provide Counterparty with a good faith firm quotation for the termination consideration to be delivered in cash or book-entry Shares, as applicable (or methodology for determining such termination consideration, including with respect to CS’s ability to unwind any hedging transactions related to the Transaction, taking into account any book-entry Shares that CS would receive from Counterparty as consideration for such Optional Early Unwind of such Tranche (or the relevant portion thereof)), and the time period for which such quotation will remain firm, it being understood that CS may condition such quotation on execution of documentation in form and substance satisfactory to CS containing such representations and agreements as CS shall determine appropriate in the circumstances.
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2. |
Certain Conditions and Adjustments.
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3. |
Other Provisions:
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(a) |
a “termination right” as defined in section 70C(10) of the Banking Act 2009;
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(b) |
a “default event provision” as defined in section 48Z(1) of the Banking Act 2009 that would apply as a consequence of:
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(A) |
a Crisis Prevention Measure, Crisis Management Measure or Recognised Third-Country Resolution Action; or
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(B) |
the occurrence of any event directly linked to the application of such a measure or action.
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(i) |
the definition of “Adherence Letter” shall be deemed to be deleted and references to “Adherence Letter” shall be deemed to be to references to this section 3(x) (and references to “such party’s Adherence Letter” and “its Adherence Letter” shall be read accordingly).
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(ii) |
References to “adheres to the Protocol” shall be deemed to be references to “enters into this Agreement”.
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(iii) |
References to “Protocol Covered Agreement” shall be deemed to be references to this Agreement (and each reference to “Protocol Covered Agreement” shall be read accordingly).
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(iv) |
References to “Implementation Date” shall be deemed to be references to the date of this Agreement. For the purposes of this section.
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(v)
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The definition of “Protocol” shall be deemed to be deleted.
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(vi) |
CS shall be a Portfolio Data Sending Entity and Counterparty shall be a Portfolio Data Receiving Entity.
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(vii) |
CS and Counterparty may use a Third Party Service Provider, and each of CS and Counterparty consents to such use including the communication of the relevant data in relation to CS and Counterparty to such Third Party Service Provider for the purposes of the reconciliation services provided by such entity.
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(viii) |
The Local Business Days for such purposes in relation to CS is New York, New York, USA and in relation to Counterparty is Novara, Italy.
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(ix) |
Notwithstanding Section 6 below, and unless otherwise agreed between the parties in writing, the following items shall be delivered to the applicable party at the email addresses specified below:
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PortfolioData:
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CS: portfolio.recon@credit-suisse.com
Counterparty: manolo.santilli@deagostini.it;
alberto.barucci@deagostini.it
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Notice of discrepancy:
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CS: portfolio.recon@credit-suisse.com
Counterparty: manolo.santilli@deagostini.it;
alberto.barucci@deagostini.it |
Dispute Notice:
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CS: portfolio.recon@credit-suisse.com
Counterparty: manolo.santilli@deagostini.it;
alberto.barucci@deagostini.it |
(i) |
Counterparty represents (the “NFC Representation”) on each date and at each time on which it enters into a Transaction (which representation will be deemed to be repeated by Counterparty at all times while such Transaction remains outstanding) that:
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(A) |
it is a non-financial counterparty (as such term is defined in Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories (“EMIR”)); and
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(B) |
it is not subject to a clearing obligation pursuant to EMIR in respect of such Transaction. For the purposes of this sub-paragraph (B) it is assumed that the Transaction is of a type that has been declared to be subject to the clearing obligation in accordance with Article 5 of EMIR and is subject to the clearing obligation in accordance with Article 4 of EMIR (whether or not in fact this is the case), and that any transitional provisions in EMIR are ignored.
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(ii) |
Counterparty will notify CS (by email to Clearing_status_notices@credit-suisse.com) if limb (B) of the NFC Representation is no longer accurate and true in respect of it promptly upon learning of such change and, unless and until Counterparty so notifies CS, CS will assume that the NFC Representation is accurate and true in respect of Counterparty.
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(iii) |
If the representation in this section 3(y) proves to have been incorrect or misleading in any material respect when made (or deemed repeated) this will not constitute an Event of Default or Termination Event under this Agreement.
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4. |
Amendments and Elections with respect to the Agreement.
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(i) |
a copy of the quarterly unaudited financial statements (management accounts) for Counterparty for the most recently ended financial quarter promptly following preparation but no later than 90 calendar days after the end of the relevant financial quarter; and
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(ii) |
a copy of the annual report containing audited or certified combined financial statements for Counterparty for the most recently ended financial year promptly following preparation but no later than 180 calendar days after the end of the relevant fiscal year.
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5. |
Modifications to Paragraph 13 of the Annex
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(i)
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Delivery Amount, Return Amount and Credit Support Amount.
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(A) |
“Delivery Amount” has the meaning specified in Paragraph 3(a).
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(B) |
“Return Amount” has the meaning specified in Paragraph 3(b).
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(C) |
“Credit Support Amount” means, in respect of Counterparty, (x)(I) on the Trade Date, the Independent Amount applicable to Counterparty and (II) on any other Valuation Date prior to the earlier of (A) satisfaction of clause (i) of the Collateral Requirement and (B) the one-year anniversary of the Trade Date, the sum of (a) the Independent Amount and (b):
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(1) |
unless Paragraph 13(b)(i)(C)(2), (3) or (4) apply, if the Price Differential on any Valuation Date is less than USD 1.00, this clause (b) shall be equal to USD 0.00;
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(2) |
if the Price Differential is greater than USD 1.00 on any Valuation Date, then on such Valuation Date and each subsequent Valuation Date until either the Price Differential is greater than USD 2.00 or is less than or equal to USD 0.00, this clause (b) shall equal to the product of (i) USD 1.00 and (ii) the aggregate Number of Shares for all outstanding Components;
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(3) |
if the Price Differential is greater than USD 2.00 on any Valuation Date, then on such Valuation Date and each subsequent Valuation Date until either the Price Differential is greater than USD 3.00 or is less than USD 1.00, this clause (b) shall be equal to the product of (i) USD 2.00 and (ii) the aggregate Number of Shares for all outstanding Components; or
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(4) |
if the Price Differential is greater than USD 3.00 on any Valuation Date, then on such Valuation Date and each subsequent Valuation Date until the Price Differential is less than USD 2.00, this clause (b) shall be equal to the product of (i) USD 3.00 and (ii) the aggregate Number of Shares for all outstanding Components;
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(ii) |
Eligible Collateral. The following items will qualify as “Eligible Collateral” as of any date for the party specified:
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CS
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Counterparty
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Valuation
Percentage
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||
Cash
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[ ]
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[X]
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100%
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Shares meeting the requirements in clause (i) of Collateral Requirement (but only with respect to the number of Shares to be pledged under the Annex); provided that, for the avoidance of doubt, clause (i) of the Collateral Requirement shall only be satisfied upon the satisfaction of the conditions of such clause with respect to a number of Shares equal to the Total Number of Shares.
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[ ]
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[X]
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100%
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Shares of Assicurazioni Generali S.p.A. in book-entry form delivered through the Clearance System not to exceed 20.2 million shares (subject to adjustment for any Potential Adjustment Events affecting the issuer thereof) (“Generali Shares”); provided that Generali Shares shall constitute Eligible Collateral only if CS, Counterparty and Custodian shall have executed an account control agreement (“Account Control Agreement”) reasonably satisfactory to each of the parties and based on the form being negotiated by the parties as of the Trade Date.
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[ ]
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[X]
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70%, subject to reasonable adjustment by CS from time to time to account for changes in the volatility, liquidity or expected liquidity of such Eligible Collateral.
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(iii) |
Other Eligible Support. None.
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(iv) |
Thresholds.
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(B) |
“Threshold” means with respect to CS: Not applicable
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(C) |
“Minimum Transfer Amount” means with respect to CS and Counterparty: USD 500,000.
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(D) |
Rounding. The Delivery Amount and the Return Amount will be rounded up and down respectively to the nearest integral multiple of USD 10,000.
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(i) |
“Valuation Agent” means CS for all purposes.
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(ii) |
“Valuation Date” means, solely for purposes of the Annex, each Local Business Day which, if treated as a Valuation Date, would result in a Delivery Amount or Return Amount.
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(iii) |
“Valuation Time” means the close of business in New York City on the Exchange Business Day immediately preceding the Valuation Date or date of calculation, as applicable; provided that the calculations of Value and Exposure will be made as of approximately the same time on the same date.
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(iv) |
“Notification Time” means 10:00 a.m., New York time, on a Local Business Day.
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(i) |
Subject to Paragraphs 13(d)(ii), for purposes of the Annex the following events will each be a “Specified Condition” for the party specified (that party being the Affected Party if the event occurs with respect to that party).
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Counterparty
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Illegality
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[X]
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Tax Event
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[ ]
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Tax Event Upon Merger
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[ ]
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Credit Event Upon Merger
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[X]
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Additional Termination Event(s)
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[X]
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(i) |
Eligibility to Hold Posted Collateral; Custodians.
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(ii) |
Use of Posted Collateral. The provisions of Paragraph 6(c) will apply to CS; provided that Paragraph 6(c) will not apply to CS with respect to Posted Collateral in the form of Shares or Generali Shares.
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(i) |
Interest Rate. The “Interest Rate”, for any day, will be the rate equal to the USD Federal Funds Effective Rate, as reported on the Bloomberg Page “FEDL01” (or if such rate is unavailable or is manifestly incorrect, as reasonably determined by CS).
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(ii) |
Transfer of Interest Amount. The Transfer of the Interest Amount will be made on the second Local Business Day following the end of each calendar month, to the extent that a Delivery Amount would not be created or increased by that transfer in which event such Interest Amount will be retained by the Secured Party, and on any Local Business Day on which all Posted Collateral in the form of Cash is Transferred to the Pledgor pursuant to Paragraph 3(b).
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(iii) |
Alternative to Interest Amount. The provisions of Paragraph 6(d)(ii) will apply and for the purposes of calculating the Interest Amount the amount of interest calculated for each day of the Interest Period shall be compounded daily.
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(iv) |
Distributions. Paragraph 6(d)(i) shall be amended by replacing “it will Transfer to the Pledgor not later than the following Local Business Day” with “the Secured Party will Transfer to the Pledgor not later than the third Local Business Day following receipt or deemed receipt, as applicable, of “ in the second and third lines thereof.
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(i) |
shall be given to or made at the following address:
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Address: |
7033 Louis Stephens Drive
PO Box 110047 Research Triangle Park, NC 27709 |
Telephone No.: |
(919) 994-4820
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Facsimile No.: |
(917) 326-8626
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E-mail: |
americas.collateralmgt@credit-suisse.com
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Attention: |
Collateral Management Americas
|
Address: |
Via G. da Verrazano 15
28100 Novara Italy |
Telephone No. : |
+39 0321 424 658
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Facsimile No.: |
+39 0321 424 530
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E-mail: |
manolo.santilli@deagostini.it
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Attention: |
Manolo Santilli
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(ii) |
shall (unless otherwise stated in the Annex) be deemed to be effective at the time such notice is actually received unless such notice is received on a day which is not a Local Business Day or after the Notification Time on any Local Business Day in which event such notice shall be deemed to be effective on the next succeeding Local Business Day.
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CS:
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To be notified to Counterparty by CS at the time of the request for the Transfer.
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Counterparty:
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To be notified to CS by Counterparty at the time of the request for the Transfer.
|
(i) |
Additional Definitions
|
(i) |
Eligible Collateral or Posted Collateral that is:
|
(ii) |
Events of Default
|
(iii) |
Covenants of the Pledgor
|
(iv) |
No Counterclaim
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(v) |
Agreement as to Single Secured Party and Pledgor.
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(vi) |
Transfer of Collateral
|
(vii) |
Security Interest
|
(viii) |
Exercise of Voting Rights
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(ix) |
Rights and Remedies
|
6. |
Notice and Account Details.
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To: |
Credit Suisse International
c/o Credit Suisse Securities (USA) LLC Eleven Madison Avenue New York, NY 10010 Attn: Stephen Gray Tel: (212) 538-2616 E-mail: Stephen.gray@credit-suisse.com Attn: William Brett Tel: (212) 325-0676 Fax: (212) 325-8036 E-mail: List.elo-equ-der@credit-suisse.com |
To: |
De Agostini S.p.A.
Via G. da Verrazano 15 28100 Novara Italy Attention: Manolo Santilli Telephone: +39 0321 424 658 Facsimile: +39 0321 424 530 E-mail: manolo.santilli@deagostini.it |
7. |
Offices.
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Yours faithfully,
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Credit Suisse International is authorized by the Prudential Regulation Authority and regulated by the Financial Conduct Authority and Prudential Regulation Authority and has entered into this transaction as principal.
|
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CREDIT SUISSE INTERNATIONAL
|
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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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