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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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):
November 25, 2024
OLD NATIONAL BANCORP
(Exact name of Registrant as specified in its
charter)
Indiana
(State or other jurisdiction
of incorporation) |
001-15817
(Commission
File
Number) |
35-1539838
(IRS Employer
Identification No.) |
One Main Street |
|
Evansville, Indiana |
47708 |
(Address of Principal Executive Offices) |
(Zip Code) |
Registrant’s telephone number, including
area code: (773) 765-7675
(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:
¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
|
¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class | |
Trading Symbol | |
Name of each exchange on which registered |
Common stock, no par value | |
ONB | |
NASDAQ Global Select Market |
Depositary Shares, each representing a 1/40th interest in a share of Non-Cumulative Perpetual Preferred Stock, Series A | |
ONBPP | |
NASDAQ Global Select Market |
Depositary Shares, each representing a 1/40th interest in a
share of Non-Cumulative Perpetual Preferred Stock, Series C | |
ONBPO | |
NASDAQ Global Select Market |
Indicate by check mark whether the Registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (s230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of
1934 (s240.12b-2 of this chapter).
Emerging growth company ¨
If an emerging growth company, indicate by
check mark if the Registrant has elected not to use 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.
The disclosure regarding the Additional Forward
Sale Agreement (as defined below) under Item 8.01 of this Current Report on Form 8-K is incorporated herein by reference.
Item 8.01 Other Events.
As previously reported in a Current Report on Form 8-K
filed on November 25, 2024 with the Securities and Exchange Commission (the “Prior Form 8-K”), on November 25,
2024, Old National Bancorp (the “Company”) entered into (i) an underwriting agreement (the “Underwriting Agreement”)
with Citigroup Global Markets Inc., as representative for the underwriters named therein (collectively, the “Underwriters”)
and as forward seller (the “Forward Seller”), and Citibank, N.A., acting in its capacity as the forward purchaser (the “Forward
Purchaser”), relating to the registered public offering and sale of 19,047,619 shares of common stock, no par value per share, of
the Company (“Common Stock”), and (ii) a forward sale agreement (the “Forward Sale Agreement”) with the Forward
Purchaser relating to 19,047,619 shares of Common Stock. Pursuant to the Underwriting Agreement, the Underwriters were also granted a
30-day option to purchase up to an additional 2,857,143 shares of Common Stock.
On November 25, 2024, the Underwriters exercised
in full their option to purchase the additional 2,857,143 shares of Common Stock pursuant to the Underwriting Agreement and, in connection
therewith, the Company entered into an additional forward sale agreement (the “Additional Forward Sale Agreement”) with the
Forward Purchaser relating to 2,857,143 shares of Common Stock, on terms essentially similar to those contained in the Forward Sale Agreement.
The descriptions of the Underwriting Agreement,
the Forward Sale Agreement and the Additional Forward Sale Agreement set forth above do not purport to be complete and are qualified in
their respective entireties by reference to the terms and conditions of the Underwriting Agreement and the Forward Sale Agreement, which
are filed as Exhibits 1.1 and 10.4, respectively, to the Prior Form 8-K, and the Additional Forward Sale Agreement, which is filed
as Exhibit 10.1 hereto, and, in each case, incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
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.
Date: November 26, 2024
|
OLD NATIONAL BANCORP |
|
|
|
|
By: |
/s/ Nicholas J. Chulos |
|
|
Nicholas J. Chulos |
|
|
Executive Vice President, Chief Legal Officer and Corporate Secretary |
Exhibit 10.1
Forward Confirmation
Date: November 25, 2024
From: Citibank, N.A.
Ladies and Gentlemen:
The purpose of this letter agreement is to confirm
the terms and conditions of the Transaction entered into between Citibank, N.A. (“Dealer”) and Old National
Bancorp (the “Counterparty”) on the Trade Date specified below (the “Transaction”).
This letter agreement constitutes a “Confirmation” as referred to in the ISDA 2002 Master Agreement specified below.
The definitions and provisions contained in the
2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”), as published by the International Swaps
and Derivatives Association, Inc. (“ISDA”), are incorporated into this Confirmation. In the event of any
inconsistency between the Equity Definitions and this Confirmation, this Confirmation shall govern.
Each party is hereby advised, and each such party
acknowledges, that the other party has engaged in, or refrained from engaging in, substantial financial transactions and has taken other
material actions in reliance upon the parties’ entry into the Transaction to which this Confirmation relates on the terms and conditions
set forth below.
1. This Confirmation evidences a complete and
binding agreement between Dealer and Counterparty as to the terms of the Transaction to which this Confirmation relates. This Confirmation
shall supplement, form a part of, and be subject to an agreement in the form of the ISDA 2002 Master Agreement (the “Agreement”)
as if Dealer and Counterparty had executed an agreement in such form (without any Schedule but (i) with the elections set forth in
this Confirmation and (ii) with the election that the “Cross Default” provisions of Section 5(a)(vi) of the
Agreement will apply to Dealer as if (a) the phrase “, or becoming capable at such time of being declared,” were deleted
from Section 5(a)(vi)(1) of the Agreement; (b) the “Threshold Amount” with respect to Dealer were three percent
of the shareholders’ equity of Dealer’s ultimate parent; (c) the following language were added to the end of Section 5(a)(vi) of
the Agreement: “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 the party to make the payment when due; and (z) the payment is made within two Local Business Days of such party’s
receipt of written notice of its failure to pay.”; and (d) the term “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 a party’s banking business). In the event of any inconsistency between provisions of the Agreement and this Confirmation,
this Confirmation will prevail for the purpose of the Transaction to which this Confirmation relates. The parties hereby agree that, other
than the Transaction to which this Confirmation relates, no Transaction shall be governed by the Agreement. For purposes of the Equity
Definitions, the Transaction is a Share Forward Transaction.
2. The terms of the particular Transaction to
which this Confirmation relates are as follows:
General Terms: |
|
Trade Date: |
November 25, 2024 |
Effective Date: |
November 26, 2024, or such later date on which the conditions set forth in Paragraph 7(a) below have been satisfied. |
Seller: |
Counterparty |
Buyer: |
Dealer |
Shares: |
The common stock of Counterparty, no par value (Ticker Symbol: “ONB”) |
Number of Shares: |
Initially, 2,857,143 Shares (the “Initial Number of Shares”), subject to reduction (i) as provided in Paragraph 7 below and (ii) on each Settlement Date, by the number of Settlement Shares settled on such date. |
Initial Forward Price: |
USD 20.16 per Share |
Forward Price: |
(a)  On the Effective Date, the Initial Forward Price; and |
|
(b) on
each calendar day thereafter, (i) the Forward Price as of the immediately preceding calendar day multiplied by (ii) the
sum of 1 and the Daily Rate for such day; provided that, on each Forward Price Reduction Date, the Forward Price in effect on such
date shall be the Forward Price otherwise in effect on such date, minus the Forward Price Reduction Amount for such Forward Price
Reduction Date.
Notwithstanding the foregoing, to the extent Counterparty
delivers Shares hereunder on or after a Forward Price Reduction Date and at or before the record date for an ordinary cash dividend with
an ex-dividend date corresponding to such Forward Price Reduction Date, the Calculation Agent shall adjust the Forward Price to the extent
it determines that such an adjustment is appropriate and necessary to preserve the economic intent of the parties by offsetting the economic
effect of the Dealer having received the benefit of both (i) the Forward Price Reduction Amount and (ii) the ordinary cash dividend
with an ex-dividend date corresponding to such Forward Price Reduction Amount (taking into account Dealer’s commercially reasonable
hedge positions in respect of the Transaction). |
Daily Rate: |
For any day, (i)(A) the Overnight Bank Rate for such day, minus (B) the Spread, divided by (ii) 365. |
Overnight Bank Rate: |
For any day, the rate set forth for such day opposite the caption “Overnight bank funding rate,” as such rate is displayed on Bloomberg Screen “OBFR01 <Index> <GO>”, or any successor page; provided that, if no rate appears for a particular day on such page, the rate for the immediately preceding day for which a rate does so appear shall be used for such day. |
Spread: |
75 basis points |
Prepayment: |
Not Applicable |
Variable Obligation: |
Not Applicable |
Forward Price Reduction Dates: |
As set forth on Schedule I |
Forward Price Reduction Amounts: |
For each Forward Price Reduction Date, the Forward Price Reduction Amount set forth opposite such date on Schedule I |
Exchange: |
NASDAQ Global Select Market |
Related Exchange(s): |
All Exchanges |
Clearance System: |
The Depository Trust Company |
Securities Act: |
Securities Act of 1933, as amended |
Exchange Act: |
Securities Exchange Act of 1934, as amended |
Market Disruption Event: |
Section 6.3(a) of the Equity Definitions is hereby amended by replacing the first sentence in its entirety with the following: “‘Market Disruption Event’ means in respect of a Share or an Index, the occurrence or existence of (i) a Trading Disruption, (ii) an Exchange Disruption, (iii) an Early Closure or (iv) a Regulatory Disruption, in each case that the Calculation Agent reasonably determines is material”. |
Early Closure: |
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. |
Regulatory Disruption: |
Any event that Dealer, based on the advice of counsel, reasonably determines makes it advisable with regard to any legal, regulatory or self-regulatory requirements or related policies and procedures that generally apply to transactions of a nature and kind similar to the Transaction and have been adopted in good faith by Dealer (whether or not such policies or procedures are imposed by law or have been voluntarily adopted by Dealer) for Dealer to refrain from or decrease any market activity in connection with the Transaction in order to establish, maintain or unwind a commercially reasonable hedge position. |
Settlement: |
|
Settlement Currency: |
USD (all amounts shall be converted to the Settlement Currency in good faith and in a commercially reasonable manner by the Calculation Agent) |
Settlement Date: |
Any Scheduled Trading Day following the Effective Date and up to and including the Final Date that is either: |
|
(a) designated by Counterparty as a “Settlement Date” by a written notice (a “Settlement Notice”) that satisfies the Settlement Notice Requirements, if applicable, and is delivered to Dealer (i) by 12:00 p.m., New York City time, on the day that is one Scheduled Trading Day prior to such Settlement Date, which may be the Final Date, if Physical Settlement applies, and (ii) no less than 75 Scheduled Trading Days prior to such Settlement Date, which may be the Final Date, if Cash Settlement or Net Share Settlement applies; provided that, if Dealer shall fully unwind a commercially reasonable hedge with respect to the portion of the Number of Shares to be settled during an Unwind Period by a date that is more than one Scheduled Trading Day prior to a Settlement Date specified above, Dealer may, by written notice to Counterparty, no fewer than one Scheduled Trading Day prior thereto, specify any Scheduled Trading Day prior to such original Settlement Date as the Settlement Date; or |
|
(b)  designated by Dealer as a Settlement Date pursuant to Paragraph 7(g) below; |
|
provided that the Final Date will be a Settlement Date if on such date the Number of Shares for which a Settlement Date has not already been designated is greater than zero, and provided, further, that, following the occurrence of at least five consecutive Disrupted Days during an Unwind Period and while such Disrupted Days are continuing, Dealer may designate any subsequent Scheduled Trading Day as the Settlement Date with respect to the portion of the Settlement Shares, if any, for which Dealer has determined an Unwind VWAP Price during such Unwind Period, it being understood that the Unwind Period with respect to the remainder of such Settlement Shares shall recommence on the next succeeding Exchange Business Day that is not a Disrupted Day in whole. |
Final Date: |
November 26, 2025 (or if such day is not a Scheduled Trading Day, the next following Scheduled Trading Day) |
Settlement Shares: |
(a) With respect to any Settlement Date other than the Final Date, the number of Shares designated as such by Counterparty in the relevant Settlement Notice or designated by Dealer pursuant to Paragraph 7(g) below, as applicable; provided that the Settlement Shares so designated shall, in the case of a designation by Counterparty, (i) not exceed the Number of Shares at that time and (ii) be at least equal to the lesser of 100,000 and the Number of Shares at that time, in each case with the Number of Shares determined taking into account pending Settlement Shares; and |
|
(b) with respect to the Settlement Date on the Final Date, a number of Shares equal to the Number of Shares at that time; |
|
in each case with the Number of Shares determined taking into account pending Settlement Shares. |
Settlement Method Election: |
Physical Settlement, Cash Settlement, or Net Share Settlement, at the election of Counterparty as set forth in a Settlement Notice that satisfies the Settlement Notice Requirements, if applicable; provided that Physical Settlement shall apply (i) if no Settlement Method is validly selected, (ii) with respect to any Settlement Shares in respect of which Dealer is unable, in good faith and in its commercially reasonable discretion, to unwind its commercially reasonable hedge by the end of the Unwind Period (taking into account the unwind of hedges related to each other forward or other equity derivative transaction (if any) entered into between Dealer and Counterparty (each, an “Additional Equity Derivative Transaction”)) (A) in a manner that, in the reasonable discretion of Dealer, based on advice of external counsel, is consistent with the requirements for qualifying for the safe harbor provided by Rule 10b-18 under the Exchange Act (“Rule 10b-18”) or (B) in its commercially reasonable judgment, due to the occurrence of five or more Disrupted Days or to the lack of sufficient liquidity in the Shares on any Exchange Business Day during the Unwind Period, (iii) to any Termination Settlement Date (as defined in Paragraph 7(g) below) and (iv) if the Final Date is a Settlement Date other than as the result of a valid Settlement Notice in respect of such Settlement Date; provided, further, that, if Physical Settlement applies under clause (ii) immediately above, Dealer shall provide written notice to Counterparty at least one Scheduled Trading Day prior to the applicable Settlement Date. |
Settlement Notice Requirements: |
Notwithstanding any other provision hereof, a Settlement Notice delivered by Counterparty that specifies Cash Settlement or Net Share Settlement will not be effective to establish a Settlement Date or require Cash Settlement or Net Share Settlement unless Counterparty delivers to Dealer with such Settlement Notice a representation, dated as of the date of such Settlement Notice and signed by Counterparty which may be part of such Settlement Notice, containing (x) the representations set forth in clause (i) under the heading “Additional Representations and Agreements of Counterparty” in Paragraph 7(e) below and (y) a representation from Counterparty that neither Counterparty nor any of its subsidiaries has applied, and shall not until after the first date on which no portion of the Transaction remains outstanding following any final exercise and settlement, cancellation or early termination of the Transaction, 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 receive any financial assistance or relief under any program or facility (collectively “Financial Assistance”) that (I) is established under applicable law (whether in existence as of the Trade Date or subsequently enacted, adopted or amended), including without limitation the CARES Act and the Federal Reserve Act, as amended, and (II) (X) requires under applicable law (or any regulation, guidance, interpretation or other pronouncement of a governmental authority with jurisdiction for such program or facility) as a condition of such Financial Assistance, that Counterparty comply with any requirement not to, or otherwise 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 Issuer, and that it has not, as of the date specified in the condition, made a capital distribution or will make a capital distribution, or (Y) where the terms of such election in respect of the Transaction would cause Counterparty under any circumstance to fail to satisfy any condition for application for or receipt or retention of the Financial Assistance (collectively “Restricted Financial Assistance”), other than any such applications for Restricted Financial Assistance that were (or would be) made (x) determined based on the advice of outside counsel of national standing that the terms of the Transaction would not cause Counterparty to fail to satisfy any condition for application for or receipt or retention of such Financial Assistance based on the terms of the program or facility as of the date of such advice or (y) after delivery to Dealer evidence or other guidance from a governmental authority with jurisdiction for such program or facility that such election in respect of the Transaction is permitted under such program or facility (either by specific reference to the Transaction or by general reference to transactions with the attributes of the Transaction in all relevant respects). |
Physical Settlement: |
If Physical Settlement is applicable, then Counterparty shall deliver to Dealer through the Clearance System a number of Shares equal to the Settlement Shares for such Settlement Date, and Dealer shall pay to Counterparty, by wire transfer of immediately available funds to an account designated by Counterparty, an amount equal to the Physical Settlement Amount for such Settlement Date, on a delivery versus payment basis. If, on any Settlement Date, the Shares to be delivered by Counterparty to Dealer hereunder are not so delivered (the “Deferred Shares”), and a Forward Price Reduction Date occurs during the period from, and including, such Settlement Date to, but excluding, the date such Shares are actually delivered to Dealer, then the portion of the Physical Settlement Amount payable by Dealer to Counterparty in respect of the Deferred Shares shall be reduced by an amount equal to the Forward Price Reduction Amount for such Forward Price Reduction Date, multiplied by the number of Deferred Shares (for the avoidance of doubt, subject to the last paragraph of the definition of Forward Price). |
Physical Settlement Amount: |
For any Settlement Date for which Physical Settlement is applicable, an amount in cash equal to the product of (a) the Forward Price in effect on the relevant Settlement Date multiplied by (b) the Settlement Shares for such Settlement Date. |
Cash Settlement: |
On any Settlement Date in respect of which Cash Settlement applies, if the Cash Settlement Amount is a positive number, Dealer will pay the Cash Settlement Amount to Counterparty. If the Cash Settlement Amount is a negative number, Counterparty will pay the absolute value of the Cash Settlement Amount to Dealer. Such amounts shall be paid on such Settlement Date by wire transfer of immediately available funds. |
Cash Settlement Amount: |
For any Settlement Date in respect of which Cash Settlement applies, an amount determined by the Calculation Agent equal to: |
|
(a) (i)(A) the average of the Forward Prices over the period beginning on, and including, the date that is one Settlement Cycle following the first day of the applicable Unwind Period and ending on, and including, such Settlement Date (calculated assuming no reduction to the Forward Price for any Forward Price Reduction Date that occurs during such Unwind Period, which is accounted for in clause (b) below), minus a commercially reasonable commission related to Dealer’s purchase of Shares in connection with the unwind of its commercially reasonable hedge position (not to exceed USD 0.02 per Share), to repurchase each Settlement Share, minus (B) the average of the 10b-18 VWAPs on each Exchange Business Day during such Unwind Period (the “Unwind VWAP Price”), multiplied by (ii) the Settlement Shares for such Settlement Date; minus |
|
(b) the product of (i) the Forward Price Reduction Amount for any Forward Price Reduction Date that occurs during such Unwind Period and (ii) the number of Settlement Shares for such Settlement Date with respect to which Dealer has not unwound its hedge (assuming Dealer has a commercially reasonable hedge position and unwinds its hedge position in a commercially reasonable manner), including the settlement of such unwinds, as of such Forward Price Reduction Date. |
Net Share Settlement: |
On any Settlement Date in respect of which Net Share Settlement applies, if the Cash Settlement Amount is a (i) positive number, Dealer shall deliver a number of Shares to Counterparty equal to the Net Share Settlement Shares, or (ii) negative number, Counterparty shall deliver a number of Shares to Dealer equal to the Net Share Settlement Shares; provided that, if Dealer determines in its reasonable judgment that it would be required to deliver Net Share Settlement Shares to Counterparty, Dealer may elect to deliver a portion of such Net Share Settlement Shares on one or more dates prior to the applicable Settlement Date upon one Scheduled Trading Day’s prior notice to Counterparty. |
Net Share Settlement Shares: |
With respect to a Settlement Date, the absolute value of the Cash Settlement Amount divided by the Unwind VWAP Price, with the number of Shares rounded up in the event such calculation results in a fractional number. |
10b-18 VWAP: |
For any Exchange Business Day, the 10b-18 Volume Weighted Average Price per Share as reported in the composite transactions for United States exchanges and quotation systems 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 time (or 15 minutes following the end of any extension of the regular trading session) on such Exchange Business Day, on Bloomberg page “ONB <Equity> AQR SEC” (or any successor thereto), or if such price is not so reported on such Exchange Business Day for any reason or is, in the Calculation Agent’s reasonable determination, erroneous, such 10b-18 VWAP shall be as reasonably determined by the Calculation Agent. For purposes of calculating the 10b-18 VWAP for such Exchange Business Day, the Calculation Agent will use reasonable efforts to include only those trades that are reported during the period of time during which Counterparty could purchase its own shares under Rule 10b-18(b)(2) and are effected pursuant to the conditions of Rule 10b-18(b)(3), each under the Exchange Act (such trades, “Rule 10b-18 eligible transactions”). |
Cash Settlement Valuation Disruption: |
The Calculation Agent shall determine for any Disrupted Day during an Unwind Period whether (i) such Disrupted Day is a Disrupted Day in full, in which case the 10b-18 VWAP for such Disrupted Day shall not be included in the calculation of the Cash Settlement Amount, or (ii) such Disrupted Day is a Disrupted Day only in part, in which case the 10b-18 VWAP for such Disrupted Day shall be determined by the Calculation Agent based on Rule 10b-18 eligible transactions in the Shares on such Disrupted Day, taking into account the nature and duration of the relevant Market Disruption Event, and the weightings of the 10b-18 VWAP and the Forward Prices for each day during an Unwind Period shall be adjusted in a commercially reasonable manner by the Calculation Agent for purposes of determining the Cash Settlement Amount to account for the occurrence of such partially Disrupted Day, with such adjustments based on the duration of any Market Disruption Event and recent volume, historical trading patterns and prices of the Shares. |
Unwind Period: |
The period from and including the first Exchange Business Day following the date Counterparty validly elects Cash Settlement or Net Share Settlement in respect of a Settlement Date through the Scheduled Trading Day immediately preceding such Settlement Date subject to Paragraph 7(g) below. Dealer shall notify Counterparty of the expected last date of the Unwind Period (which expectation shall not be binding upon Dealer) promptly following Dealer’s receipt of a Settlement Notice specifying Cash Settlement or Net Share Settlement. |
Failure to Deliver: |
Not Applicable. |
Share Cap: |
Notwithstanding any other provision of this Confirmation, in no event will Counterparty be required to deliver to Dealer on any Settlement Date, whether pursuant to Physical Settlement, Net Share Settlement or any Private Placement Settlement, a number of Shares in excess of (i) two times the Initial Number of Shares, subject to adjustment from time to time in accordance with the provisions of this Confirmation or the Equity Definitions, minus (ii) the aggregate number of Shares delivered by Counterparty to Dealer hereunder prior to such Settlement Date. |
Adjustments: |
|
Method of Adjustment: |
Calculation Agent Adjustment. Section 11.2(e) of the Equity Definitions is hereby amended by deleting clauses (iii) and (v) thereof. For the avoidance of doubt, the declaration or payment of a cash dividend will not constitute a Potential Adjustment Event. |
Additional Adjustment: |
If the actual cost to Dealer (or an affiliate of Dealer), over any 10 consecutive Scheduled Trading Day period, of borrowing a number of Shares equal to the Number of Shares to hedge in a commercially reasonable manner its exposure to the Transaction exceeds a weighted average rate equal to 50 basis points per annum, the Calculation Agent shall reduce the Forward Price to compensate Dealer for the amount by which such cost exceeded a weighted average rate equal to 50 basis points per annum during such period. The Calculation Agent shall notify Counterparty prior to making any such adjustment to the Forward Price. |
Extraordinary Events: |
In lieu of the applicable provisions contained in Article 12 of the Equity Definitions, the consequences of any Extraordinary Event (including, for the avoidance of doubt, any Merger Event, Tender Offer, Nationalization, Insolvency, Delisting, or Change in Law) shall be as specified in Paragraphs 7(f) and 7(g) below, respectively. Notwithstanding anything to the contrary herein or in the Equity Definitions, no Additional Disruption Event will be applicable except to the extent expressly referenced in Paragraph 7(f)(iv) below. The definition of “Tender Offer” in Section 12.1(d) of the Equity Definitions is hereby amended by replacing “10%” with “15%.” |
Non-Reliance: |
Applicable |
Agreements and Acknowledgments: |
|
Regarding Hedging Activities: |
Applicable |
Additional Acknowledgments: |
Applicable |
Transfer: |
Notwithstanding anything to the contrary herein or in the Agreement, Dealer may assign, transfer and set over all rights, title and interest, obligations, powers, privileges and remedies of Dealer under the Transaction, in whole or in part, to (A) an affiliate of Dealer, whose obligations hereunder are fully and unconditionally guaranteed by Dealer or its ultimate parent entity, or (B) any other affiliate of Dealer or its ultimate parent entity with a long-term issuer rating equal to or better than the credit rating of Dealer or its ultimate parent entity at the time of transfer without the consent of Counterparty; provided that, (i) at the time of such assignment, transfer or set over, Counterparty would not, as a result of such assignment, transfer or set over, reasonably be expected at any time (A) to be required to pay (including a payment in kind) to Dealer or such assignee, transferee or other recipient of rights, title and interest, obligations, powers, privileges and remedies an amount in respect of an Indemnifiable Tax greater than the amount Counterparty would have been required to pay to Dealer in the absence of such assignment, transfer or set over, or (B) to receive a payment (including a payment in kind) after such assignment, transfer or set over that is less than the amount Counterparty would have received from Dealer in the absence of such assignment, transfer or set over, (ii) prior to such assignment, transfer or set over, Dealer shall have caused the assignee, transferee or other recipient of rights, title and interest, obligations, powers, privileges and remedies to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Counterparty to permit Counterparty to determine that the assignment, transfer or set over complies with the requirements of clause (i) in this Paragraph, (iii) such assignment, transfer or set over will not cause a deemed exchange for Counterparty of the Transaction under Section 1001 of the Code (as defined below) and (iv) at all times, Dealer or any assignee, transferee or other recipient of rights, title and interest, obligations, powers, privileges and remedies shall be eligible to provide a U.S. Internal Revenue Service Form W-9 or W-8ECI, or any successor thereto, with respect to any payments or deliveries under the Agreement. |
Hedging Party: |
For all applicable Extraordinary Events, Dealer. |
3. Calculation Agent: |
Dealer whose judgments, determinations and calculations shall be made in good faith and in a commercially reasonable manner; provided that, following the occurrence and during the continuance of an Event of Default of the type described in Section 5(a)(vii) of the Agreement with respect to which Dealer is the sole Defaulting Party, if the Calculation Agent fails to timely make any calculation, adjustment or determination required to be made by the Calculation Agent hereunder or to perform any obligation of the Calculation Agent hereunder and such failure continues for five Exchange Business Days following notice to the Calculation Agent by Counterparty of such failure, Counterparty shall have the right to designate a nationally recognized third-party dealer in over-the-counter corporate equity derivatives to act, during the period commencing on the date such Event of Default occurred and ending on the Early Termination Date with respect to such Event of Default, as the Calculation Agent. Following any determination, adjustment or calculation by the Calculation Agent hereunder, upon a written request by Counterparty, the Calculation Agent shall promptly (but in any event within five Scheduled Trading Days) provide to Counterparty by email to the email address provided by Counterparty in such request a report (in a commonly used file format for the storage and manipulation of financial data) displaying in reasonable detail the basis for such determination, adjustment or calculation (including any assumptions used in making such determination, adjustment or calculation), it being understood that the Calculation Agent shall not be obligated to disclose any proprietary or confidential models or other proprietary or confidential information used by it for such determination, adjustment or calculation. |
4. Account Details: |
|
(a) Account for delivery of Shares to Dealer: |
To be advised |
(b) Account for delivery of Shares to Counterparty: |
To be furnished |
(c) Account for payments to Counterparty: |
To be advised under separate cover or telephone confirmed prior to each Settlement Date |
(d)  Account for payments to Dealer: |
To be advised |
5. Offices:
The Office of Counterparty for the Transaction
is: Inapplicable, Counterparty is not a Multibranch Party
The Office of Dealer for the Transaction
is: New York
6. Notices: For purposes of this Confirmation:
(a) Address for notices or communications
to Counterparty:
Old National Bancorp
One Main Street
Evansville, Indiana, 47708
Attention: John Moran
Telephone: 812-461-9209
Email: John.Moran@oldnational.com
With a copy to:
Old National Bancorp
One Main Street
Evansville, Indiana, 47708
Attention: Nick Chulos
Telephone: 773-765-7499
Email: Nick.Chulos@oldnational.com
(b) Address for notices or communications
to Dealer:
Citibank, N.A.
388 Greenwich Street
New York, New York 10013
Attention: Theodore Finkelstein and Bianca Gotuaco
Email: theodore.finkelstein@citi.com; bianca.gotuaco@citi.com;
eq.us.corporates.middle.office@citi.com; eq.us.ses.notifications@citi.com
7. Other Provisions:
(a) Conditions
to Effectiveness. The effectiveness of this Confirmation on the Effective Date shall be subject to the satisfaction or waiver by Dealer
of the following conditions: (i) the condition that the representations and warranties of Counterparty contained in the Underwriting
Agreement dated November 25, 2024 between Counterparty, Dealer and the other parties thereto (the “Underwriting Agreement”)
and any certificate delivered pursuant thereto by Counterparty are true and correct on such date as if made as of such date, (ii) the
condition that Counterparty has performed all of the obligations required to be performed by it under the Underwriting Agreement on or
prior to such date, (iii) all of the applicable conditions set forth in Section 5 of the Underwriting Agreement, (iv) the
condition that the Underwriting Agreement shall not be terminated pursuant to Section 9 or 10 of the Underwriting Agreement and (v) the
condition, as determined by Dealer, that neither of the following has occurred: (A) Dealer or its affiliate is unable through commercially
reasonable efforts to borrow and deliver for sale a number of Shares equal to the Initial Number of Shares in connection with establishing
its hedge position or (B) in Dealer’s commercially reasonable judgment either it is impracticable to do so or Dealer or its
affiliate would incur a stock loan cost of more than a rate equal to 200 basis points per annum to do so (in either of which events this
Confirmation shall be effective but the Number of Shares for the Transaction shall be the number of Shares Dealer (or its affiliate) is
required to deliver in accordance with the Underwriting Agreement).
(b) Underwriting
Agreement Representations, Warranties and Covenants. On the Trade Date and on each date on which Dealer or its affiliates makes a
sale pursuant to a prospectus in connection with a hedge of the Transaction, Counterparty repeats and reaffirms as of such date all of
the representations and warranties contained in the Underwriting Agreement. Counterparty hereby agrees to comply with its covenants contained
in the Underwriting Agreement as if such covenants were made in favor of Dealer.
(c) Interpretive
Letter. Counterparty agrees and acknowledges that the Transaction is being entered into in accordance with the October 9, 2003
interpretive letter from the staff of the Securities and Exchange Commission to Goldman, Sachs & Co. (the “Interpretive
Letter”) and agrees to take all actions, and to omit to take any actions, reasonably requested by Dealer for the Transaction
to comply with the Interpretive Letter. Without limiting the foregoing, Counterparty agrees that neither it nor any “affiliated
purchaser” (as defined in Regulation M (“Regulation M”) under the Exchange Act) will, directly
or indirectly, bid for, purchase or attempt to induce any person to bid for or purchase, the Shares or securities that are convertible
into, or exchangeable or exercisable for, Shares during any “restricted period” as such term is defined in Regulation M.
In addition, Counterparty represents that it is eligible to conduct a primary offering of Shares on Form S-3, the offering contemplated
by the Underwriting Agreement complies with Rule 415 under the Securities Act, and the Shares are “actively traded” as
defined in Rule 101(c)(1) of Regulation M.
(d) Agreements
and Acknowledgments Regarding Shares.
(i) Counterparty
agrees and acknowledges that, in respect of any Shares delivered to Dealer hereunder, such Shares shall be newly issued (unless mutually
agreed otherwise by the parties) and, upon such delivery, duly and validly authorized, issued and outstanding, fully paid and nonassessable,
free of any lien, charge, claim or other encumbrance and not subject to any preemptive or similar rights and shall, upon such issuance,
be accepted for listing or quotation on the Exchange.
(ii) Counterparty
agrees and acknowledges that Dealer (or an affiliate of Dealer) will hedge its exposure to the Transaction by selling Shares borrowed
from third party securities lenders or other Shares pursuant to a registration statement, and that, pursuant to the terms of the Interpretive
Letter, the Shares up to the Initial Number of Shares delivered, pledged or loaned by Counterparty to Dealer (or an affiliate of Dealer)
in connection with the Transaction may be used by Dealer (or an affiliate of Dealer) to return to securities lenders without further registration
or other restrictions under the Securities Act, in the hands of those securities lenders, irrespective of whether such securities loan
is effected by Dealer or an affiliate of Dealer. Accordingly, subject to Paragraph 7(h) below, Counterparty agrees that the
Shares that it delivers to Dealer (or an affiliate of Dealer) pursuant to this Confirmation on or prior to the final Settlement Date will
not bear a restrictive legend and that such Shares will be deposited in, and the delivery thereof shall be effected through the facilities
of, the Clearance System.
(iii) Counterparty
agrees and acknowledges that it has reserved and will keep available at all times, free from preemptive or similar rights and free from
any lien, charge, claim or other encumbrance, authorized but unissued Shares at least equal to the Share Cap, solely for the purpose of
settlement under the Transaction.
(iv) Unless the
provisions set forth below under “Private Placement Procedures” are applicable, Dealer agrees to use any Shares delivered
by Counterparty hereunder on any Settlement Date to return to securities lenders to close out open securities loans created by Dealer
or an affiliate of Dealer in the course of Dealer’s or such affiliate’s hedging activities related to Dealer’s exposure
under the Transaction.
(v) In connection
with bids and purchases of Shares in connection with any Cash Settlement or Net Share Settlement of the Transaction, Dealer shall use
its good faith efforts to conduct its activities, or cause its affiliates to conduct their activities, in a manner consistent with the
requirements of the safe harbor provided by Rule 10b-18, as if such provisions were applicable to such purchases and any analogous
purchases under any Additional Equity Derivative Transaction, taking into account any applicable Securities and Exchange Commission no
action letters, as appropriate, and subject to any delays between the execution and reporting of a trade of the Shares on the Exchange
and other circumstances beyond Dealer’s control; provided that without limiting the generality of this paragraph (v), Dealer
shall not be responsible for any failure to comply with Rule 10b-18(b)(3) under the Exchange Act to the extent any transaction
that was executed (or deemed to be executed) by or on behalf of Counterparty or an “affiliated purchaser” (as defined under
Rule 10b-18) pursuant to a separate agreement is not deemed to be an “independent bid” or an “independent transaction”
for purposes of Rule 10b-18(b)(3) under the Exchange Act.
(e) Additional
Representations and Agreements of Counterparty. Counterparty represents, warrants and agrees as follows:
(i) Counterparty
represents to Dealer on the Trade Date and on any date that Counterparty notifies Dealer that Cash Settlement or Net Share Settlement
applies to the Transaction, that (A) Counterparty is not aware of any material nonpublic information regarding Counterparty or the
Shares, (B) each of its filings under the Securities Act, the Exchange Act or other applicable securities laws that are required
to be filed have been filed and that, as of the date of this representation, when considered as a whole (with the more recent such filings
deemed to amend inconsistent statements contained in any earlier such filings), there is no misstatement of material fact contained therein
or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances
under which they were made, not misleading, and (C) Counterparty is not entering into this Confirmation nor making any election hereunder
to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for Shares) or to raise
or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for Shares) or otherwise
in violation of the Exchange Act. In addition to any other requirement set forth herein, Counterparty agrees not to designate, or to appropriately
rescind or modify a prior designation of, any Settlement Date with respect to which Cash Settlement or Net Share Settlement applies if
it is notified by Dealer that, in the reasonable determination of Dealer, based on advice of external counsel, such settlement or Dealer’s
related market activity in respect of such date would result in a violation of any applicable federal or state law or regulation, including
the U.S. federal securities laws.
(ii) It is the
intent of Dealer and Counterparty that following any election of Cash Settlement or Net Share Settlement by Counterparty, the purchase
of Shares by Dealer during any Unwind Period shall comply with the requirements of Rule 10b5-l(c)(l)(i)(B) under the Exchange
Act and that this Confirmation shall be interpreted to comply with the requirements of Rule 10b5-l(c) under the Exchange Act.
Counterparty acknowledges that (i) during any Unwind Period Counterparty shall not have, and shall not attempt to exercise, any influence
over how, when or whether to effect purchases of Shares by Dealer (or its agent or affiliate) in connection with this Confirmation and
(ii) Counterparty is entering into the Agreement and this Confirmation in good faith and not as part of a plan or scheme to evade
compliance with federal securities laws including, without limitation, Rule 10b-5 under the Exchange Act. In addition, Counterparty
agrees to act in good faith with respect to this Confirmation and the Agreement.
(iii) Counterparty
shall, at least one day prior to the first day of any Unwind Period, notify Dealer of the total number of Shares, purchased 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 the first day of the Unwind Period and during the calendar
week in which the first day of the Unwind Period occurs (“Rule 10b-18 purchase”, “blocks”
and “affiliated purchaser” each being used as defined in Rule 10b-18).
(iv) During any
Unwind Period, Counterparty shall (i) notify Dealer prior to the opening of trading in the Shares on any day on which Counterparty
makes, or reasonably expects in advance of the opening to be made, any public announcement (as defined in Rule 165(f) under
the Securities Act) of any merger, acquisition, or similar transaction involving a recapitalization relating to Counterparty (other than
any such transaction in which the consideration consists solely of cash and there is no valuation period), (ii) promptly notify Dealer
following any such announcement that such announcement has been made, and (iii) promptly deliver to Dealer following the making of
any such announcement information indicating (A) Counterparty’s average daily Rule 10b-18 purchases (as defined in Rule 10b-18)
during the three full calendar months preceding the date of the announcement of such transaction and (B) Counterparty’s block
purchases (as defined in Rule 10b-18) effected pursuant to Rule 10b-18(b)(4) during the three full calendar months preceding
the date of the announcement of such transaction. In addition, Counterparty shall promptly notify Dealer of the earlier to occur of the
completion of such transaction and the completion of the vote by target shareholders.
(v) Neither Counterparty
nor any of its affiliated purchasers (within the meaning of Rule 10b-18) shall take or refrain from taking any action (including,
without limitation, any direct purchases by Counterparty or any of its affiliates, or any purchases by a party to a derivative transaction
with Counterparty or any of its affiliates), either under this Confirmation, under an agreement with another party or otherwise, that
Counterparty reasonably believes to cause any purchases of Shares by Dealer or any of its affiliates in connection with any Cash Settlement
or Net Share Settlement of the Transaction not to meet the requirements of the safe harbor provided by Rule 10b-18 determined as
if all such foregoing purchases were made by Counterparty.
(vi) Counterparty
will not engage in any “distribution” (as defined in Regulation M), other than a distribution meeting, in each case,
the requirements of an exception set forth in each of Rules 101(b) and 102(b) of Regulation M that would cause a “restricted
period” (as defined in Regulation M) to occur during any Unwind Period.
(vii) Counterparty
is not, and after giving effect to the transactions contemplated hereby will not be, required to register as an “investment company”
as such term is defined in the Investment Company Act of 1940, as amended.
(viii) Counterparty
is not insolvent, nor will Counterparty be rendered insolvent as a result of the Transaction or its performance of the terms hereof.
(ix) Without
limiting the generality of Section 13.1 of the Equity Definitions, Counterparty acknowledges that Dealer is not making any representations
or warranties or taking any position or expressing any view with respect to the treatment of the Transaction under any accounting standards
including ASC Topic 260, Earnings Per Share, ASC Topic 815, Derivatives and Hedging, or ASC Topic 480, Distinguishing
Liabilities from Equity and ASC 815-40, Derivatives and Hedging – Contracts in Entity’s Own Equity (or any successor
issue statements).
(x) Counterparty
understands that no obligations of Dealer to it hereunder will be entitled to the benefit of deposit insurance and that such obligations
will not be guaranteed by any affiliate of Dealer or any governmental agency.
(xi) To Counterparty’s
actual knowledge, no federal, 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,
other than Sections 13 and 16 under the Exchange Act; provided that Counterparty makes no representation or warranty regarding
any such requirement that is applicable generally to the ownership of equity securities by Dealer or its affiliates solely as a result
of their being a financial institution or broker-dealer.
(xii) No filing
with, or approval, authorization, consent, license, registration, qualification, order or decree of, any court or governmental authority
or agency, domestic or foreign, is necessary or required for the execution, delivery and performance by Counterparty of this Confirmation
and the consummation of the Transaction (including, without limitation, the issuance and delivery of Shares on any Settlement Date) except
(i) such as have been obtained under the Securities Act and (ii) as may be required to be obtained under state securities laws.
(xiii) Counterparty
(i) has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of entering
into the Transaction; (ii) has consulted with its own legal, financial, accounting and tax advisors in connection with the Transaction;
and (iii) is entering into the Transaction for a bona fide business purpose.
(xiv) Counterparty
will, by the next succeeding Scheduled Trading Day notify Dealer upon obtaining knowledge of the occurrence of any event that would constitute
an Event of Default, a Potential Event of Default or a Potential Adjustment Event.
(xv) Counterparty
(i) is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment
strategies involving a security or securities; (ii) 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 (iii) has total assets of at least
USD 50 million as of the date hereof.
(f) Acceleration
Events. Each of the following events shall constitute an “Acceleration Event”:
(i) Stock
Borrow Event. Dealer (or an affiliate of Dealer) (A) is not after using good faith commercially reasonable efforts able to hedge
its exposure under the Transaction because insufficient Shares are made available for borrowing by securities lenders or (B) would
incur a cost to borrow (or to maintain a borrow of) Shares to hedge its exposure under the Transaction that is greater than a rate equal
to 200 basis points per annum (each, a “Stock Borrow Event”);
(ii) Dividends
and Other Distributions. On any day occurring after the Trade Date, Counterparty declares a distribution, issue or dividend to existing
holders of the Shares of (A) any cash dividend (other than an Extraordinary Dividend) to the extent all cash dividends having an
ex-dividend date during the period from, and including, any Forward Price Reduction Date (with the Trade Date being a Forward Price Reduction
Date for purposes of this Paragraph 7(e)(ii) only) to, but excluding, the next subsequent Forward Price Reduction Date exceeds,
on a per Share basis, the Forward Price Reduction Amount set forth opposite the first date of any such period on Schedule I, (B) any
Extraordinary Dividend, (C) any share capital or other securities of another issuer acquired or owned (directly or indirectly) by
Counterparty as a result of a spin-off or other similar transaction or (D) any other type of securities (other than Shares), rights
or warrants or other assets, in any case for payment (cash or other consideration) at less than the prevailing market price, as determined
in a commercially reasonable manner by Dealer; “Extraordinary Dividend” means any dividend or distribution (that
is not an ordinary cash dividend) declared by the Issuer with respect to the Shares that is (1) 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, (2) a payment or distribution by the Issuer to holders of Shares that the Issuer announces will be an “extraordinary”
or “special” dividend or distribution, (3) a payment by the Issuer to holders of Shares out of the Issuer’s capital
and surplus or (4) 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;
(iii) ISDA
Termination. Dealer has the right to designate an Early Termination Date pursuant to Section 6 of the Agreement, in which case,
except as otherwise specified herein and except as a result of an Event of Default under Section 5(a)(i) of the Agreement, the
provisions of Paragraph 7(g) below shall apply in lieu of the consequences specified in Section 6 of the Agreement;
(iv) Other
ISDA Events. An Announcement Date occurs in respect of any Merger Event, Tender Offer, Nationalization, Insolvency, Delisting
or the occurrence of any Hedging Disruption or Change in Law; provided that, in case of a Delisting, in addition to the provisions
of Section 12.6(a)(iii) of the Equity Definitions, it will also constitute a Delisting if the Exchange is located in the United
States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ Global
Select Market or The NASDAQ Global Market (or their respective successors); provided, further, that (i) the definition of
“Change in Law” provided in Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (A) replacing
the phrase “the interpretation” in the third line thereof with the phrase “or announcement or statement of the formal
or informal interpretation” and (B) immediately following the word “Transaction” in clause (X) thereof, adding
the phrase “in the manner reasonably contemplated by Dealer on the Trade Date:” (ii) any determination as to whether
(A) the adoption of or any change in any applicable law or regulation (including, without limitation, any tax law) or (B) the
promulgation of or any change in or announcement or statement of the formal or informal interpretation by any court, tribunal or regulatory
authority with competent jurisdiction of any applicable law or regulation (including any action taken by a taxing authority), in each
case, constitutes a “Change in Law” shall be made without regard to Section 739 of the Wall Street Transparency and
Accountability Act of 2010 (the “WSTAA”) or any similar provision in any legislation enacted on or after the
Trade Date; and (iii) any Change in Law that results in an actual cost to Dealer to borrow (or maintain a borrow of) Shares to hedge
its exposure under the Transaction that is equal to or less than 200 basis points per annum shall not constitute a “materially
increased cost” for purposes of clause (Y) of the definition of “Change in Law” as a result of such cost.
(v) Ownership
Event. On any day, the Share Amount for such day exceeds the Post-Effective Limit for such day (if any applies) (each, an “Ownership
Event”). For purposes of this clause (v), the “Share Amount” as of any day is the number
of Shares that Dealer and any person whose ownership position would be aggregated with that of Dealer (Dealer or any such person, a “Dealer
Person”) under any law, rule, regulation or regulatory order or Counterparty’s constituent document that for any
reason is, or after the Trade Date becomes, applicable to ownership of Shares (“Applicable Provisions”), owns,
beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership of under
the Applicable Provisions, as determined by Dealer in its reasonable discretion. The “Post-Effective Limit”
means (x) the minimum number of Shares that would give rise to reporting or registration obligations (except for any filing requirements
on Form 13F, Schedule 13D or Schedule 13G under the Exchange Act, in each case, as in effect on the Trade Date) or other
requirements (including obtaining prior approval from any person or entity) of a Dealer Person, or would result in an adverse effect
on a Dealer Person, under the Applicable Provisions, as determined by Dealer in its reasonable discretion, minus (y) 1.0%
of the number of Shares outstanding.
(g) Termination
Settlement. Upon the occurrence of any Acceleration Event, Dealer shall have the right to designate, upon at least one Scheduled
Trading Day’s notice, any Scheduled Trading Day following such occurrence to be a Settlement Date hereunder (a “Termination
Settlement Date”) to which Physical Settlement shall apply, and to select the number of Settlement Shares relating to such
Termination Settlement Date; provided that (i) in the case of an Acceleration Event arising out of an Ownership Event, the
number of Settlement Shares so designated by Dealer shall not exceed the number of Shares necessary to reduce the Share Amount to reasonably
below the Post-Effective Limit and (ii) in the case of an Acceleration Event arising out of a Stock Borrow Event, the number of
Settlement Shares so designated by Dealer shall not exceed the number of Shares as to which such Stock Borrow Event exists. If, upon
designation of a Termination Settlement Date by Dealer pursuant to the preceding sentence, Counterparty fails to deliver the Settlement
Shares relating to such Termination Settlement Date when due or otherwise fails to perform obligations within its control in respect
of the Transaction, it shall be an Event of Default with respect to Counterparty and Section 6 of the Agreement shall apply. If
an Acceleration Event occurs during an Unwind Period relating to a number of Settlement Shares to which Cash Settlement or Net Share
Settlement applies, then on the Termination Settlement Date relating to such Acceleration Event, notwithstanding any election to the
contrary by Counterparty, Cash Settlement or Net Share Settlement shall apply to the portion of the Settlement Shares relating to such
Unwind Period as to which Dealer has unwound its hedge and Physical Settlement shall apply in respect of (x) the remainder (if any)
of such Settlement Shares and (y) the Settlement Shares designated by Dealer in respect of such Termination Settlement Date. If
an Acceleration Event occurs after Counterparty has designated a Settlement Date to which Physical Settlement applies but before the
relevant Settlement Shares have been delivered to Dealer (unless delivery of such Shares has already been initiated by Counterparty and
such delivery is not subject to delay), then Dealer shall have the right to cancel such Settlement Date and designate a Termination Settlement
Date in respect of such Shares pursuant to the first sentence hereof. Notwithstanding the foregoing, in the case of a Nationalization
or Merger Event, if at the time of the related Settlement Date the Shares have changed into cash or any other property or the right to
receive cash or any other property, the Calculation Agent shall adjust the nature of the Shares as it determines appropriate to account
for such change such that the nature of the Shares is consistent with what shareholders receive in such event. For the avoidance of doubt,
if Dealer designates a Termination Settlement Date as a result of an Acceleration Event caused by an excess dividend of the type described
in Paragraph 7(f)(ii) above, no adjustments(s) shall be made to the terms of this contract to account for the amount of such
excess dividend.
(h) Private
Placement Procedures. If Counterparty is unable to comply with the provisions of Paragraph 7(d)(ii) above because of a change
in law or a change in the policy of the Securities and Exchange Commission or its staff, or Dealer otherwise determines that in its reasonable
opinion any Shares to be delivered to Dealer by Counterparty may not be freely returned by Dealer or its affiliates to securities lenders
as described under such sub-paragraph (ii) or otherwise constitute “restricted securities” as defined in Rule 144
under the Securities Act, then delivery of any such Shares (the “Restricted Shares”) shall be effected as provided
below, unless waived by Dealer.
(i) If Counterparty
delivers the Restricted Shares pursuant to this clause (i) (a “Private Placement Settlement”), then
delivery of Restricted Shares by Counterparty shall be effected in accordance with private placement procedures customary for private
placements of equity securities of substantially similar size with respect to such Restricted Shares reasonably acceptable to Dealer;
provided that Counterparty may not elect a Private Placement Settlement if, on the date of its election, it has taken, or caused
to be taken, any action that would make unavailable either the exemption pursuant to Section 4(a)(2) of the Securities Act
for the sale by Counterparty to Dealer (or any affiliate designated by Dealer) of the Restricted Shares or the exemption pursuant to
Section 4(a)(1) or Section 4(a)(3) of the Securities Act for resales of the Restricted Shares by Dealer (or any such
affiliate of Dealer), and if Counterparty fails to deliver the Restricted Shares when due or otherwise fails to perform obligations within
its control in respect of a Private Placement Settlement, it shall be an Event of Default with respect to Counterparty and Section 6
of the Agreement shall apply. The Private Placement Settlement of such Restricted Shares shall include customary representations, covenants,
blue sky and other governmental filings and/or registrations, indemnities to Dealer, due diligence rights (for Dealer or any designated
buyer of the Restricted Shares by Dealer), opinions and certificates, and such other documentation as is customary for private placement
agreements of equity securities of a substantially similar size, all reasonably acceptable to Dealer. In the case of a Private Placement
Settlement, Dealer shall, in its good faith discretion, adjust the amount of Restricted Shares to be delivered to Dealer hereunder to
reflect the fact that such Restricted Shares may not be freely returned to securities lenders by Dealer and may only be saleable by Dealer
at a discount to reflect the lack of liquidity in Restricted Shares. Notwithstanding the Agreement or this Confirmation, the date of
delivery of such Restricted Shares shall be the Clearance System Business Day following notice by Dealer to Counterparty of the number
of Restricted Shares to be delivered pursuant to this clause (i). For the avoidance of doubt, delivery of Restricted Shares shall
be due as set forth in the previous sentence and not be due on the date that would otherwise be applicable.
(ii) If Counterparty
delivers any Restricted Shares in respect of the Transaction, Counterparty agrees that (A) such Shares may be transferred by and
among Dealer and its affiliates and (B) after the minimum “holding period” within the meaning of Rule 144(d) under
the Securities Act has elapsed, Counterparty shall promptly remove, or cause the transfer agent for the Shares to remove, any legends
referring to any transfer restrictions from such Shares upon delivery by Dealer (or such affiliate of Dealer) to Counterparty or such
transfer agent of any seller’s and broker’s representation letters customarily delivered by Dealer or its affiliates in connection
with resales of restricted securities pursuant to Rule 144 under the Securities Act, each without any further requirement for the
delivery of any certificate, consent, agreement, opinion of counsel, notice or any other document, any transfer tax stamps or payment
of any other amount or any other action by Dealer (or such affiliate of Dealer).
(i) Indemnity.
Counterparty agrees to indemnify Dealer and its affiliates and their respective directors, officers, employees, agents and controlling
persons (Dealer and each such affiliate or person being an “Indemnified Party”) from and against any and all
losses, claims, damages and liabilities, joint and several, incurred by or asserted against such Indemnified Party arising out of, in
connection with, or relating to, any breach of any covenant or representation made by Counterparty in this Confirmation or the Agreement
and will reimburse any Indemnified Party for all reasonable expenses (including reasonable legal fees and expenses) as they are incurred
in connection with the investigation of, preparation for, or defense of any pending or threatened claim or any action or proceeding arising
therefrom, whether or not such Indemnified Party is a party thereto, except to the extent determined in a final and nonappealable judgment
by a court of competent jurisdiction to have resulted from Dealer’s gross negligence, fraud, bad faith and/or willful misconduct
or from a breach of any representation or covenant of Dealer contained in this Confirmation or the Agreement. The foregoing provisions
shall survive any termination or completion of the Transaction.
(j) Waiver
of Trial by Jury. COUNTERPARTY AND DEALER HEREBY IRREVOCABLY WAIVE (ON ITS OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, ON BEHALF OF ITS STOCKHOLDERS) ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT,
TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE TRANSACTION OR THE ACTIONS OF DEALER OR ITS AFFILIATES IN THE NEGOTIATION, PERFORMANCE
OR ENFORCEMENT HEREOF.
(k) Governing
Law/Jurisdiction. This Confirmation and the Agreement, and any claim, controversy or dispute arising under or related to this Confirmation
or the Agreement, shall be governed by the laws of the State of New York without reference to the conflict of laws provisions thereof.
The parties hereto irrevocably submit to the exclusive jurisdiction of the courts of the State of New York and the United States Court
for the Southern District of New York in connection with all matters relating hereto and waive any objection to the laying of venue in,
and any claim of inconvenient forum with respect to, these courts.
(l) Designation
by Dealer. Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing Dealer to purchase, sell,
receive or deliver any Shares or other securities to or from Counterparty, Dealer may designate any of its affiliates to purchase, sell,
receive or deliver such Shares or other securities and otherwise to perform Dealer’s obligations in respect of the Transaction
and any such designee may assume such obligations. Dealer shall be discharged of its obligations to Counterparty only to the extent of
any such performance.
(m) Insolvency
Filing. Notwithstanding anything to the contrary herein, in the Agreement or in the Equity Definitions, upon any Insolvency Filing
or other proceeding under the Bankruptcy Code in respect of the Issuer, the Transaction shall automatically terminate on the date thereof
without further liability of either party to this Confirmation to the other party (except for any liability in respect of any breach
of representation or covenant by a party under this Confirmation prior to the date of such Insolvency Filing or other proceeding), it
being understood that the Transaction is a contract for the issuance of Shares by the Issuer.
(n) Disclosure.
Effective from the date of commencement of discussions concerning the Transaction, each of Dealer and Counterparty and each of their
employees, representatives, or other agents may disclose to any and all persons, without limitation of any kind, the tax treatment and
tax structure of the Transaction and all materials of any kind (including opinions or other tax analyses) relating to such tax treatment
and tax structure.
(o) Right
to Extend. Dealer may postpone any Settlement Date with respect to which Cash Settlement or Net Share Settlement applies or any other
date of valuation or delivery with respect to which Cash Settlement or Net Share Settlement applies, with respect to some or all of the
relevant Settlement Shares, if Dealer determines, based on advice of external counsel, that such extension is reasonably necessary or
appropriate to enable Dealer to effect purchases of Shares in connection with its commercially reasonable hedging activity hereunder
in a manner that would, if Dealer were Counterparty or an affiliated purchaser of Counterparty, be in compliance with applicable legal
and regulatory requirements.
(p) Counterparty
Share Repurchases. Counterparty agrees not to repurchase, directly or indirectly, any Shares if, immediately following such purchase,
the Outstanding Share Percentage would be equal to or greater than 8.9%. The “Outstanding
Share Percentage” as of any day is the fraction (1) the numerator of which is the aggregate of the Number of Shares
for the Transaction and the “Number of Shares” under each Additional Equity Derivative Transaction that is a share forward
transaction and (2) the denominator of which is the number of Shares outstanding on such day.
(q) Limit
on Beneficial Ownership. Notwithstanding any other provisions hereof, Dealer shall not have an “interest” in Shares hereunder,
Dealer shall not have the right to acquire Shares hereunder and Dealer shall not be entitled to take delivery of any Shares hereunder
(in each case, whether in connection with the purchase of Shares on any Settlement Date or any Termination Settlement Date, any Private
Placement Settlement or otherwise) to the extent (but only to the extent) that, after such receipt of any Shares hereunder, (i) the
Share Amount would exceed the Post-Effective Limit, (ii) Dealer and its affiliates would directly or indirectly own or control,
for purposes of the Bank Holding Company Act of 1956, as amended (the “BHCA”), in excess of 4.0% of the outstanding
Shares, (iii) Dealer and each person subject to aggregation of Shares with Dealer under Section 13 or Section 16 of the
Exchange Act and the rules promulgated thereunder (including all persons who may form a “group” within the meaning of
Rule 13d-5(b)(1) under the Exchange Act) (collectively, the “Dealer Group”) would directly or indirectly
beneficially own (as such term is defined for purposes of Section 13 or Section 16 of the Exchange Act and the rules promulgated
thereunder) in excess of 4.9% of the then outstanding Shares (the “Threshold Number of Shares”) or (iv) Dealer
would hold or beneficially own 5.0% or more of the number of Shares of Counterparty’s outstanding common stock or 5.0% or more
of Counterparty’s outstanding voting power (the “Exchange Limit”). Any purported delivery hereunder shall
be void and have no effect to the extent (but only to the extent) that, after such delivery, (i) the Share Amount would exceed the
Post-Effective Limit, (ii) Dealer and its affiliates would directly or indirectly own or control, for purposes of the BHCA, in excess
of 4.0% of the outstanding Shares, (iii) the Dealer Group would directly or indirectly so beneficially own in excess of the Threshold
Number of Shares or (iv) Dealer would directly or indirectly hold or beneficially own in excess of the Exchange Limit. If any delivery
owed to Dealer hereunder is not made, in whole or in part, as a result of this provision, Counterparty’s obligation to make such
delivery shall not be extinguished and Counterparty shall make such delivery as promptly as practicable after, but in no event later
than one Scheduled Trading Day after, Dealer gives notice to Counterparty that, after such delivery, (i) the Share Amount would
not exceed the Post-Effective Limit, (ii) Dealer and its affiliates would not directly or indirectly own or control for the purposes
of the BHCA in excess of 4.0% of the outstanding Shares, (iii) the Dealer Group would not directly or indirectly so beneficially
own in excess of the Threshold Number of Shares and (iv) Dealer would not directly or indirectly hold in excess of the Exchange
Limit.
In addition, notwithstanding
anything herein to the contrary, if any delivery owed to Dealer hereunder is not made, in whole or in part, as a result of the immediately
preceding paragraph, Dealer shall be permitted to make any payment due in respect of such Shares to Counterparty in two or more tranches
that correspond in amount to the number of Shares delivered by Counterparty to Dealer pursuant to the immediately preceding paragraph.
(r) Commodity
Exchange Act. Each of Dealer and Counterparty agrees and represents that it is an “eligible contract participant” as
defined in Section 1a(18) of the U.S. Commodity Exchange Act, as amended (the “CEA”), the Agreement
and the Transaction are subject to individual negotiation by the parties and have not been executed or traded on a “trading facility”
as defined in Section 1a(51) of the CEA.
(s) Bankruptcy
Status. Subject to Paragraph 7(m) above, Dealer acknowledges and agrees that this Confirmation is not intended to convey
to Dealer rights with respect to the transactions contemplated hereby that are senior to the claims of Counterparty’s common stockholders
in any U.S. bankruptcy proceedings of Counterparty; provided, however, that nothing herein 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 this
Confirmation and the Agreement; and provided, further, that nothing herein shall limit or shall be deemed to limit Dealer’s
rights in respect of any transaction other than the Transaction.
(t) No
Collateral or Setoff. Notwithstanding Section 6(f) or any other provision of the Agreement or any other agreement between
the parties to the contrary, the obligations of Counterparty hereunder are not secured by any collateral. Obligations in respect of the
Transaction shall not be set off against any other obligations of the parties, whether arising under the Agreement, this Confirmation,
under any other agreement between the parties hereto, by operation of law or otherwise, and no other obligations of the parties shall
be set off against obligations in respect of the Transaction, whether arising under the Agreement, this Confirmation, under any other
agreement between the parties hereto, by operation of law or otherwise, and each party hereby waives any such right of setoff; except
that set-off solely with respect to amounts payable under the Transaction and any and all Additional Equity Derivative Transactions governed
by the Agreement shall be permissible.
(u) Tax
Matters.
(i) Payer
Tax Representations. For the purpose of Section 3(e) of the Agreement, each of Dealer and Counterparty makes the following
representation: It is not required by any applicable law, as modified by the practice of any relevant governmental revenue authority,
of any Relevant Jurisdiction to make any deduction or withholding for or on account of any Tax from any payment (other than interest
under Section 9(h) of the Agreement or amounts payable hereunder that may be considered to be interest for U.S. federal income
tax purposes) to be made by it to the other party under the Agreement. In making this representation, it may rely on (A) the accuracy
of any representations made by the other party pursuant to Section 3(f) of the Agreement, (B) the satisfaction of the
agreement contained in Section 4(a)(i) or Section 4(a)(iii) of the Agreement and the accuracy and effectiveness of
any document provided by the other party pursuant to Section 4(a)(i) or Section 4(a)(iii) of the Agreement and (C) the
satisfaction of the agreement of the other party contained in Section 4(d) of the Agreement, except that it will not be a breach
of this representation where reliance is placed on clause (B) above and the other party does not deliver a form or document under
Section 4(a)(iii) of the Agreement by reason of material prejudice to its legal or commercial position.
(ii) Payee
Tax Representations. For the purpose of Section 3(f) of the Agreement:
(1) Dealer makes
the following representations:
| a. | It is a “U.S. person” (as that
term is used in section 1.1441-4(a)(3)(ii) of the United States Treasury Regulations)
for U.S. federal income tax purposes (or, if it is disregarded for U.S. federal income tax
purposes, its beneficial owner is) and is a U.S. resident for U.S. federal income tax purposes. |
(2) Counterparty
makes the following representations:
| a. | It is a “U.S. person” (as that
term is used in Section 1.1441-4(a)(3)(ii) of the United States Treasury Regulations)
for U.S. federal income tax purposes and is an exempt recipient under Section 1.6049-4(c)(1)(ii) of
the United States Treasury Regulations. |
(iii) Withholding
Tax Imposed on Payments to non-U.S. Counterparties under the United States Foreign Account Tax Compliance Provisions of the HIRE
Act. “Tax” as used in Paragraph 7(u)(i) above and “Indemnifiable Tax” as defined in Section 14
of the Agreement, shall not include any FATCA Withholding Tax. For the avoidance of doubt, a FATCA Withholding Tax is a Tax, the deduction
or withholding of which is required by applicable law for the purposes of Section 2(d) of the Agreement.
“Code”
means the U.S. Internal Revenue Code of 1986, as amended.
“FATCA
Withholding Tax” means any U.S. federal withholding tax imposed or collected pursuant to Sections 1471 through
1474 of the Code, any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of
the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered
into in connection with the implementation of such Sections of the Code.
(iv) 871(m) Protocol.
To the extent that either party to the Agreement with respect to the Transaction is not an adhering party to the ISDA 2015 Section 871(m) Protocol
published by ISDA on November 2, 2015 and available at www.isda.org, as may be amended, supplemented, replaced or superseded
from time to time (the “871(m) Protocol”), the parties agree that the provisions and amendments contained
in the Attachment to the 871(m) Protocol are incorporated into and apply to this Confirmation and the Agreement with respect to
the Transaction as if set forth in full herein. The parties further agree that, solely for purposes of applying such provisions and amendments
to this Confirmation and the Agreement with respect to the Transaction, references to “each Covered Master Agreement” in
the 871(m) Protocol will be deemed to be references to this Confirmation and the Agreement with respect to the Transaction, and
references to the “Implementation Date” in the 871(m) Protocol will be deemed to be references to the Trade Date of
the Transaction. For greater certainty, if there is any inconsistency between this provision and the provisions contained in any other
agreement between the parties with respect to the Transaction, this provision shall prevail unless such other agreement expressly overrides
the provisions of the Attachment to the 871(m) Protocol. Notwithstanding anything to the contrary in this Section 7(u)(iv),
the last sentence of Section 2(d)(iii) of the Agreement as proposed to be added by the 871(m) Protocol is not incorporated
herein.
(v) Tax Documentation.
For the purposes of Sections 4(a)(i) and 4(a)(ii) of the Agreement, Counterparty shall provide to Dealer a valid and duly
executed U.S. Internal Revenue Service Form W-9, or any successor thereto, completed accurately (i) on or before the date
of execution of this Confirmation; (ii) promptly upon reasonable demand by Dealer; and (iii) promptly upon learning that any
such tax form previously provided by Counterparty has become inaccurate or incorrect.
For the purposes
of Sections 4(a)(i) and 4(a)(ii) of the Agreement, Dealer shall provide to Counterparty a valid and duly executed U.S. Internal
Revenue Service Form W-9, or any successor thereto, completed accurately (i) on or before the date of execution of this Confirmation;
(ii) promptly upon reasonable demand by Counterparty; and (iii) promptly upon learning that any such tax form previously provided
by Dealer has become inaccurate or incorrect.
(vi) Deduction
or Withholding for Tax. Sections 2(d)(i), 2(d)(i)(4), 2(d)(ii)(1) of the Agreement and the definition of “Tax” are
hereby amended by replacing the words “pay”, “paid”, “payment” or “payments” with the
words “pay or deliver”, “paid or delivered”, “payment or delivery” or “payments or deliveries”,
respectively.
(v) Wall
Street Transparency and Accountability Act of 2010. The parties hereby agree that none of (i) Section 739 of the WSTAA,
(ii) any similar legal certainty provision included in any legislation enacted, or rule or regulation promulgated, on or after
the Trade Date, (iii) the enactment of the WSTAA or any regulation under the WSTAA, (iv) any requirement under the WSTAA or
(v) any amendment made by the WSTAA shall limit or otherwise impair either party’s right to terminate, renegotiate, modify,
amend or supplement this Confirmation or the Agreement, as applicable, arising from a termination event, force majeure, illegality, increased
cost, regulatory change or similar event under this Confirmation, the Equity Definitions or the Agreement (including, but not limited
to, any right arising from any Acceleration Event).
(w) Other
Forwards / Dealers. Dealer acknowledges that Counterparty may enter into one or more substantially similar forward transactions for
the Shares (each, an “Other Forward”) with one or more other dealers. Dealer and Counterparty agree that if
Counterparty designates a “Settlement Date” with respect to one or more Other Forwards for which “Cash Settlement”
or “Net Share Settlement” is applicable, and the resulting “Unwind Period” for such Other Forwards coincides
for any period of time with an Unwind Period for the Transaction (the “Overlap Unwind Period”), Counterparty
shall notify Dealer at least one Scheduled Trading Day prior to the commencement of such Overlap Unwind Period of the first Scheduled
Trading Day and length of such Overlap Unwind Period, and Dealer shall be permitted to purchase Shares to unwind its hedge only on alternating
Scheduled Trading Days during such Overlap Unwind Period, commencing on the first, second, third or later Scheduled Trading Day of such
Overlap Unwind Period, as notified to Dealer by Counterparty at least one Scheduled Trading Day prior to such Overlap Unwind Period (which
alternating Scheduled Trading Days, for the avoidance of doubt, may be every other Scheduled Trading Day if there is only one other dealer,
every third Scheduled Trading Day if there are two other dealers, etc.).
(x) Delivery
of Cash. For the avoidance of doubt, nothing in this Confirmation shall be interpreted as requiring Counterparty to deliver cash
in respect of the settlement of the Transaction, except in circumstances where the required cash settlement thereof is permitted for
classification of the contract as equity by ASC 815-40-25 (formerly EITF 00-19) as in effect on the Trade Date (including,
without limitation, where Counterparty so elects to deliver cash or fails timely to elect to deliver Shares in respect of such settlement).
For the avoidance of doubt, the preceding sentence shall not be construed as limiting (i) Paragraph 7(i) above or (ii) any
damages that may be payable by Counterparty as a result of breach of this Confirmation.
(y) Counterparts.
(i) Counterparts
may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform
Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., DocuSign and AdobeSign (any such
signature, an “Electronic Signature”)) or other transmission method and any counterpart so delivered shall
be deemed to have been duly and validly delivered and be valid and effective for all purposes. The words “execution,” “signed,”
“signature” and words of like import in this Confirmation or in any other certificate, agreement or document related to this
Confirmation shall include any Electronic Signature, except to the extent electronic notices are expressly prohibited under this Confirmation
or the Agreement.
(ii) Notwithstanding
anything to the contrary in the Agreement, either party may deliver to the other party a notice relating to any Event of Default or Termination
Event under this Confirmation by email.
(z) U.S.
Stay Regulations. To the extent that the QFC Stay Rules are applicable hereto, then the parties agree that (i) to the extent
that prior to the date hereof both parties have adhered to the 2018 ISDA U.S. Resolution Stay Protocol (the “Protocol”),
the terms of the Protocol are incorporated into and form a part of this Confirmation, and for such purposes this Confirmation shall be
deemed a Protocol Covered Agreement and each party shall be deemed to have the same status as “Regulated Entity” and/or “Adhering
Party” as applicable to it under the Protocol; (ii) to the extent that prior to the date hereof the parties have executed
a separate agreement the effect of which is to amend the qualified financial contracts between them to conform with the requirements
of the QFC Stay Rules (the “Bilateral Agreement”), the terms of the Bilateral Agreement are incorporated
into and form a part of this Confirmation and each party shall be deemed to have the status of “Covered Entity” or “Counterparty
Entity” (or other similar term) as applicable to it under the Bilateral Agreement; or (iii) if clause (i) and clause
(ii) do not apply, the terms of Section 1 and Section 2 and the related defined terms (together, the “Bilateral
Terms”) of the form of bilateral template entitled “Full-Length Omnibus (for use between U.S. G-SIBs and Corporate
Groups)” published by ISDA on November 2, 2018 (currently available on the 2018 ISDA U.S. Resolution Stay Protocol page at
www.isda.org and a copy of which is available upon request), the effect of which is to amend the qualified financial contracts
between the parties thereto to conform with the requirements of the QFC Stay Rules, are hereby incorporated into and form a part of this
Confirmation, and for such purposes this Confirmation shall be deemed a “Covered Agreement,” Dealer shall be deemed a “Covered
Entity” and Counterparty shall be deemed a “Counterparty Entity.” In the event that, after the date of this Confirmation,
both parties hereto become adhering parties to the Protocol, the terms of the Protocol will replace the terms of this Paragraph 7(z).
In the event of any inconsistencies between this Confirmation and the terms of the Protocol, the Bilateral Agreement or the Bilateral
Terms (each, the “QFC Stay Terms”), as applicable, the QFC Stay Terms will govern. Terms used in this Paragraph
7(z) without definition shall have the meanings assigned to them under the QFC Stay Rules. For purposes of this Paragraph 7(z),
references to “this Confirmation” include any related credit enhancements entered into between the parties or provided by
one to the other.
“QFC
Stay Rules” means the regulations codified at 12 C.F.R. 252.2, 252.81–8, 12 C.F.R. 382.1-7 and 12 C.F.R. 47.1-8,
which, subject to limited exceptions, require an express recognition of the stay-and-transfer powers of the Federal Deposit Insurance
Corporation under the Federal Deposit Insurance Act and the Orderly Liquidation Authority under Title II of the Dodd Frank Wall Street
Reform and Consumer Protection Act and the override of default rights related directly or indirectly to the entry of an affiliate into
certain insolvency proceedings and any restrictions on the transfer of any covered affiliate credit enhancements.
(aa) Adjustments.
For the avoidance of doubt, whenever the Calculation Agent, the Hedging Party or the Determining Party is called upon to make an adjustment,
determination or election pursuant to the terms of this Confirmation or the Equity Definitions to take into account the effect of an
event, the Calculation Agent, the Hedging Party or the Determining Party, as applicable, shall make such adjustment, determination or
election in a commercially reasonable manner by reference to the effect of such event on the Hedging Party, assuming that the Hedging
Party maintains a commercially reasonable hedge position at the time of the event.
Please confirm your agreement to be bound by
the terms stated herein by executing the copy of this Confirmation enclosed for that purpose and returning it to us.
|
Yours sincerely, |
|
|
|
|
Citibank, N.A. |
|
|
|
|
By: |
/s/
Eric Natelson |
|
|
Name: Eric Natelson |
|
|
Title: Authorized Signatory |
|
|
|
Confirmed as of the date first above written:
|
Old National Bancorp |
|
|
|
|
By: |
/s/
John V. Moran, IV |
|
|
Name: John V. Moran, IV |
|
|
Title: Senior Executive Vice President and Chief
Financial Officer |
SCHEDULE I
Forward Price Reduction Date | |
Forward
Price Reduction Amount | |
Trade Date | |
USD | 0.0000 | |
December 5, 2024 | |
USD | 0.1400 | |
March 5, 2025 | |
USD | 0.1400 | |
June 5, 2025 | |
USD | 0.1400 | |
September 5, 2025 | |
USD | 0.1400 | |
Final Date | |
USD | 0.0000 | |
v3.24.3
Cover
|
Nov. 25, 2024 |
Document Information [Line Items] |
|
Document Type |
8-K
|
Amendment Flag |
false
|
Document Period End Date |
Nov. 25, 2024
|
Entity File Number |
001-15817
|
Entity Registrant Name |
OLD NATIONAL BANCORP
|
Entity Central Index Key |
0000707179
|
Entity Tax Identification Number |
35-1539838
|
Entity Incorporation, State or Country Code |
IN
|
Entity Address, Address Line One |
One Main Street
|
Entity Address, City or Town |
Evansville
|
Entity Address, State or Province |
IN
|
Entity Address, Postal Zip Code |
47708
|
City Area Code |
773
|
Local Phone Number |
765-7675
|
Written Communications |
false
|
Soliciting Material |
false
|
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false
|
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false
|
Entity Emerging Growth Company |
false
|
Common Stock [Member] |
|
Document Information [Line Items] |
|
Title of 12(b) Security |
Common stock, no par value
|
Trading Symbol |
ONB
|
Security Exchange Name |
NASDAQ
|
Depositary Shares Each Representing 140th Interest In Share Of Noncumulative Perpetual Preferred Stock Seriesa [Member] |
|
Document Information [Line Items] |
|
Title of 12(b) Security |
Depositary Shares, each representing a 1/40th interest in a share of Non-Cumulative Perpetual Preferred Stock, Series A
|
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ONBPP
|
Security Exchange Name |
NASDAQ
|
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|
Document Information [Line Items] |
|
Title of 12(b) Security |
Depositary Shares, each representing a 1/40th interest in a
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|
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ONBPO
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NASDAQ
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