GOLDMAN SACHS & CO. LLC | 200 WEST STREET | NEW YORK, NEW YORK 10282-2198 | TEL: 212 ###-###-####
| || |
|To: || || |
4 Copley Place, 7th Floor
Boston, Massachusetts 02116
Attention: Michael Fleisher
|From: || ||Goldman Sachs & Co. LLC|
|Re: || ||Additional Call Option Transaction|
|Date: || ||August 12, 2020|
Dear Ladies and Gentlemen:
The purpose of this letter agreement (this Confirmation) is to confirm the terms and conditions of the call option transaction entered into between Goldman Sachs & Co. LLC (Dealer) and Wayfair Inc. (Counterparty) as of the Trade Date specified below (the Transaction). This letter agreement constitutes a Confirmation as referred to in the ISDA Master Agreement specified below. This Confirmation shall replace any previous agreements and serve as the final documentation for the Transaction.
The definitions and provisions contained in the 2002 ISDA Equity Derivatives Definitions (the Equity Definitions), as published by the International Swaps and Derivatives Association, Inc. (ISDA) are incorporated into this Confirmation. In the event of any inconsistency between the Equity Definitions and this Confirmation, this Confirmation shall govern. Certain defined terms used herein are based on terms that are defined in the Offering Memorandum dated August 11, 2020 (the Offering Memorandum) relating to the 0.625% Convertible Senior Notes due 2025 (as originally issued by Counterparty, the Convertible Notes and each USD 1,000 principal amount of Convertible Notes, a Convertible Note) issued by Counterparty in an aggregate initial principal amount of USD 1,320,000,000 (as increased by an aggregate principal amount of USD 198,000,000 pursuant to the exercise by the Initial Purchasers (as defined herein) of their over-allotment option to purchase additional Convertible Notes pursuant to the Purchase Agreement (as defined herein)) pursuant to an Indenture to be dated August 14, 2020 between Counterparty and U.S. Bank National Association, as trustee (the Indenture). In the event of any inconsistency between the terms defined in the Offering Memorandum, the Indenture and this Confirmation, this Confirmation shall govern. The parties acknowledge that this Confirmation is entered into on the date hereof with the understanding that (i) definitions set forth in the Indenture which are also defined herein by reference to the Indenture and (ii) sections of the Indenture that are referred to herein will conform to the descriptions thereof in the Offering Memorandum. If any such definitions in the Indenture or any such sections of the Indenture differ from the descriptions thereof in the Offering Memorandum, the descriptions thereof in the Offering Memorandum will govern for purposes of this Confirmation. The parties further acknowledge that the Indenture section numbers used herein are based on the draft of the Indenture last reviewed by Dealer as of the date of this Confirmation, and if any such section numbers are changed in the Indenture as executed, the parties will amend this Confirmation in good faith to preserve the intent of the parties. Subject to the foregoing, references to the Indenture herein are references to the Indenture as in effect on the date of its execution, and if the Indenture is amended or supplemented following such date (other than any amendment or supplement (x) pursuant to Section 10.01(m) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture, subject, in the case of this clause (y), to the second paragraph under Method of Adjustment in Section 3), any such amendment or supplement will be disregarded for purposes of this Confirmation unless the parties agree otherwise in writing. If Dealer, the Calculation Agent or the Determining Party is required to make any calculation, adjustment or determination hereunder by reference to the Convertible Notes or the Indenture at a time at which the Convertible Notes are no longer outstanding, Dealer, the Calculation Agent or the Determining Party, as the case may be, shall make such calculation, adjustment or determination, as applicable, assuming the Convertible Notes remained outstanding.