Exhibit 10.4


 





 


Bank
of America, N.A.


One
Bryant Park


New
York, NY 10036


 


January
17, 2018


 


		To:	Patrick
                                         Industries, Inc.

                                         107 W. Franklin Street,



P.O.
Box 638,


Elkhart,
Indiana 46515


	 	Attention:	Chief Financial Officer
	 	Telephone No.:	(574) 294-7511
	 	Facsimile No.:	(574) 522-5213




 


		Re:	Base
Warrants



 


The
purpose of this letter agreement (this “Confirmation”) is to confirm the terms and conditions of the Warrants
issued by Patrick Industries, Inc. (“Company”) to Bank of America, N.A. (“Dealer”)
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. Each party further agrees that this Confirmation together with the
Agreement evidence a complete binding agreement between Company and Dealer as to the subject matter and terms of the Transaction
to which this Confirmation relates, and shall supersede all prior or contemporaneous written or oral communications with respect
thereto.


 


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 Company as to the terms of the Transaction to which
this Confirmation relates. This Confirmation shall supplement, form a part of, and be subject to an agreement in the form of the
2002 ISDA Master Agreement (the “Agreement”)
as if Dealer and Company had executed an agreement in such form (but without any Schedule except for the election of the laws
of the State of New York as the governing law (without reference to choice of law doctrine)) on the Trade Date. In the event of
any inconsistency between provisions of that Agreement and this Confirmation, this Confirmation will prevail for the purpose of
the Transaction to which this Confirmation relates. The parties hereby agree that no Transaction other than the Transaction to
which this Confirmation relates shall be governed by the Agreement.


 


2.            The
Transaction is a Warrant Transaction, which shall be considered a Share Option Transaction for purposes of the Equity Definitions.
The terms of the particular Transaction to which this Confirmation relates are as follows:


 


General
Terms.


 


	 	Trade Date:	 	January 17, 2018
	 	 	 	 
	 	Effective Date:	 	The second Exchange Business Day immediately prior to the Premium Payment Date
	 	 	 	 
	 	Warrants:	 	Equity call warrants, each giving the holder the right to purchase a number of Shares equal to the Warrant Entitlement at a price per Share equal to the Strike Price, subject to the terms set forth under the caption “Settlement Terms” below.  For the purposes of the Equity Definitions, each reference to a Warrant herein shall be deemed to be a reference to a Call Option.



 






     


     


    

 


	 	Warrant Style:	 	European
	 	 	 	 
	 	Seller:	 	Company
	 	 	 	 
	 	Buyer:	 	Dealer
	 	 	 	 
	 	Shares:	 	The common stock of Company, without par value (Exchange symbol “PATK”)
	 	 	 	 
	 	Number of Warrants:	 	853,388.  For the avoidance of doubt, the Number of Warrants shall be reduced by any Warrants exercised or deemed exercised hereunder.  In no event will the Number of Warrants be less than zero.
	 	 	 	 
	 	Warrant Entitlement:	 	One Share per Warrant
	 	 	 	 
	 	Strike Price:	 	USD 113.9250.
	 	 	 	 
	 	 	 	Notwithstanding anything to the contrary in the Agreement, this Confirmation or the Equity Definitions, in no event shall the Strike Price be subject to adjustment  to the extent that, after giving effect to such adjustment,  the Strike Price would be less than USD 65.10, except for any adjustment pursuant to the terms of this Confirmation and the Equity Definitions in connection with stock splits or similar changes to Company’s capitalization.
	 	 	 	 
	 	Premium:	 	USD 7,890,000
	 	 	 	 
	 	Premium Payment Date:	 	January 22, 2018
	 	 	 	 
	 	Exchange:	 	The NASDAQ Global Select Market
	 	 	 	 
	 	Related Exchange(s):	 	All Exchanges; provided that Section 1.26 of the Equity Definitions shall be amended to add the words “United States” before the word “exchange” in the tenth line of such section.
	 	 	 	 
	 	Procedures for Exercise.	 	 
	 	 	 	 
	 	Expiration Time:	 	The Valuation Time
	 	 	 	 
	 	Expiration Dates:	 	Each Scheduled Trading Day during the period from, and including, the First Expiration Date to, but excluding, the 80th Scheduled Trading Day following the First Expiration Date shall be an “Expiration Date” for a number of Warrants equal to the Daily Number of Warrants on such date; provided that, notwithstanding anything to the contrary in the Equity Definitions, if any such date is a Disrupted Day, the Calculation Agent shall make adjustments in good faith and in a commercially reasonable manner, if applicable, to the Daily Number of Warrants or shall reduce such Daily Number of Warrants to zero for which such day shall be an Expiration Date and shall designate a Scheduled Trading Day or a number of Scheduled Trading Days as the Expiration Date(s) for the remaining Daily Number of Warrants or a portion thereof for the originally scheduled Expiration Date; and provided further that if such Expiration Date has not occurred pursuant to this clause as of the eighth Scheduled Trading Day following the last scheduled Expiration Date under the Transaction, the Calculation Agent shall have the right to declare such Scheduled Trading Day to be the final Expiration Date and the Calculation Agent shall determine its good faith estimate of the fair market value for the Shares as of the Valuation Time on that eighth Scheduled Trading Day or on any subsequent Scheduled Trading Day, as the Calculation Agent shall determine acting in good faith and using commercially reasonable means; provided further that in no event shall any Expiration Date under the Transaction be postponed as a result of any Disrupted Day to a date later than the Final Expiration Date.




 






    	 	2	 



     


    

 


	 	First Expiration Date:	 	May 1, 2023 (or if such day is not a Scheduled Trading Day, the next following Scheduled Trading Day), subject to Market Disruption Event below.
	 	 	 	 
	 	Final Expiration Date:	 	September 20, 2023
	 	 	 	 
	 	Daily Number of Warrants:	 	For any Expiration Date, the Number of Warrants that have not expired or been exercised as of such day, divided by the remaining number of Expiration Dates (including such day), rounded down to the nearest whole number, subject to adjustment pursuant to the provisos to “Expiration Dates”.
	 	 	 	 
	 	Automatic Exercise:	 	Applicable; and means that for each Expiration Date, a number of Warrants equal to the Daily Number of Warrants for such Expiration Date will be deemed to be automatically exercised at the Expiration Time on such Expiration Date.
	 	 	 	 
	 	Market Disruption Event:	 	Section 6.3(a) of the Equity Definitions is hereby amended by replacing clause (ii) in its entirety with “(ii) an Exchange Disruption, or” and inserting immediately following clause (iii) the phrase “; in each case that the Calculation Agent reasonably determines is material.”
	 	 	 	 
	 	 	 	Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the words “Scheduled Closing Time” in the fourth line thereof.
	 	 	 	 
	 	Valuation Terms.	 	 
	 	 	 	 
	 	Valuation Time:	 	Scheduled Closing Time; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in good faith and in a commercially reasonable manner.
	 	 	 	 
	 	Valuation Date:	 	Each Exercise Date.
	 	 	 	 
	 	Settlement Terms.	 	 
	 	 	 	 
	 	Settlement Method:	 	Net Share Settlement.



 






    	 	3	 



     


    

 


	 	Net Share Settlement:	 	On the relevant Settlement Date, Company shall deliver to Dealer a number of Shares equal to the Share Delivery Quantity for such Settlement Date to the account specified herein free of payment through the Clearance System, and Dealer shall be treated as the holder of record of such Shares at the time of delivery of such Shares or, if earlier, at 5:00 p.m. (New York City time) on such Settlement Date, and Company shall pay to Dealer cash in lieu of any fractional Share based on the Settlement Price on the relevant Valuation Date.
	 	 	 	 
	 	Share Delivery Quantity:	 	For any Settlement Date, a number of Shares, as calculated by the Calculation Agent, equal to the Net Share Settlement Amount for such Settlement Date divided by the Settlement Price on the Valuation Date for such Settlement Date.
	 	 	 	 
	 	Net Share Settlement Amount:	 	For any Settlement Date, an amount equal to the product of (i) the number of Warrants exercised or deemed exercised on the relevant Exercise Date, (ii) the Strike Price Differential for the relevant Valuation Date and (iii) the Warrant Entitlement.
	 	 	 	 
	 	Settlement Price:	 	For any Valuation Date, the per Share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page PATK <equity> AQR (or any successor thereto) in respect of the period from the scheduled opening time of the Exchange to the Scheduled Closing Time on such Valuation Date (or if such volume-weighted average price is unavailable, the market value of one Share on such Valuation Date, as determined by the Calculation Agent in good faith and in a commercially reasonable manner based on generally available market data using, if practicable, a volume weighted average methodology).  Notwithstanding the foregoing, if (i) any Expiration Date is a Disrupted Day and (ii) the Calculation Agent determines that such Expiration Date shall be an Expiration Date for fewer than the Daily Number of Warrants, as described above, then the Settlement Price for the relevant Valuation Date shall be the volume-weighted average price per Share on such Valuation Date on the Exchange, as determined by the Calculation Agent in good faith and in a commercially reasonable manner based on generally available market data using a commercially reasonable volume-weighted methodology, for the portion of such Valuation Date for which the Calculation Agent determines there is no Market Disruption Event.
	 	 	 	 
	 	Settlement Dates:	 	As determined pursuant to Section 9.4 of the Equity Definitions, subject to Section ‎9(k)(i) hereof.
	 	 	 	 
	 	Other Applicable Provisions:	 	The provisions of Sections 9.1(c), 9.8, 9.9, 9.11 and 9.12 of the Equity Definitions will be applicable, except that all references in such provisions to “Physically-settled” shall be read as references to “Net Share Settled.” “Net Share Settled” in relation to any Warrant means that Net Share Settlement is applicable to that Warrant.
	 	 	 	 
	 	Representation and Agreement:	 	Notwithstanding Section 9.11 of the Equity Definitions, the parties acknowledge that any Shares delivered to Dealer may be, upon delivery, subject to restrictions and limitations arising from Company’s status as issuer of the Shares under applicable securities laws.




 






    	 	4	 



     


    




 


		3.	Additional
                                         Terms applicable to the Transaction.



 


Adjustments
applicable to the Transaction:


 


	 	Method of Adjustment:	 	Calculation Agent Adjustment; provided that the parties hereto agree that any (i) repurchases by or on behalf of the Company of Shares through a dealer pursuant to forward contracts, accelerated share repurchase contracts or similar derivatives transactions that are entered into at prevailing market prices, volume-weighted average prices or discounts thereto and on customary terms for transactions of such type to repurchase Shares or (ii) open market Share repurchases by or on behalf of the Company at prevailing market prices (clause (i) and clause (ii) together, “Share Repurchases”) shall not be considered Potential Adjustment Events.  For the avoidance of doubt, in making any adjustments under the Equity Definitions, the Calculation Agent may make adjustments, if any, to any one or more of the Strike Price, the Number of Warrants, the Daily Number of Warrants and the Warrant Entitlement in a commercially reasonable manner.  Notwithstanding the foregoing, any cash dividends or distributions on the Shares, whether or not extraordinary, shall be governed by Section ‎9(f) of this Confirmation in lieu of Article 10 or Section 11.2(c) of the Equity Definitions.
	 	 	 	 
	 	Extraordinary Events applicable to the Transaction:
	 	 	 	 
	 	New Shares:	 	Section 12.1(i) of the Equity Definitions is hereby amended (a) by deleting the text in clause (i) thereof in its entirety (including the word “and” following clause (i)) and replacing it with the phrase “publicly quoted, traded or listed (or whose related depositary receipts are publicly quoted, traded or listed) on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors)” and (b) by inserting immediately prior to the period the phrase “and (iii) of an entity or person that is a corporation organized under the laws of the United States, any State thereof or the District of Columbia that also becomes Company under the Transaction following such Merger Event or Tender Offer”.
	 	 	 	 
	 	Consequence of Merger Events:
	 	 
	 	Merger Event:	 	Applicable; provided that if an event occurs that constitutes both a Merger Event under Section 12.1(b) of the Equity Definitions and an Additional Termination Event under Section ‎9(h)(ii)(B) of this Confirmation, the provisions of Section ‎9(h)(ii)(B) will apply.



 






    	 	5	 



     


    




 


	 	Share-for-Share:	 	Modified Calculation Agent Adjustment
	 	 	 	 
	 	Share-for-Other:	 	Cancellation and Payment (Calculation Agent Determination)
	 	 	 	 
	 	Share-for-Combined:	 	Cancellation and Payment (Calculation Agent Determination); provided that Dealer may elect, in its commercially reasonable judgment, Component Adjustment (Calculation Agent Determination) for all or any portion of the Transaction.
	 	 	 	 
	 	Consequence of Tender Offers:	 	 
	 	 	 	 
	 	Tender Offer:	 	Applicable; provided that if an event occurs that constitutes both a Tender Offer under Section 12.1(d) of the Equity Definitions and Additional Termination Event under Section 9(h)(ii)(A) of this Confirmation, the provisions of Section 9(h)(ii)(A) will apply; provided further that the definition of “Tender Offer” in Section 12.1(d) of the Equity Definitions is hereby amended by replacing the phrase “greater than 10% and less than 100% of the outstanding voting shares of the Issuer” with “(x) greater than 15% and less than 100% of the outstanding Shares in respect of any Tender Offer made by any entity or person other than the Issuer or any subsidiary thereof or (y) greater than 20% and less than 100% of the outstanding Shares in respect of any Tender Offer made by the Issuer or any subsidiary thereof”.
	 	 	 	 
	 	Share-for-Share:	 	Modified Calculation Agent Adjustment
	 	 	 	 
	 	Share-for-Other:	 	Modified Calculation Agent Adjustment
	 	 	 	 
	 	Share-for-Combined:	 	Modified Calculation Agent Adjustment
	 	 	 	 
	 	Consequences of Announcement Events:	 	Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions; provided that, in respect of an Announcement Event, (x) references to “Tender Offer” shall be replaced by references to “Announcement Event” and references to “Tender Offer Date” shall be replaced by references to “date of such Announcement Event”, (y) the word “shall” in the second line shall be replaced with “may” and the fifth and sixth lines shall be deleted in their entirety and replaced with the words “effect on the Warrants of such Announcement Event solely to account for changes in volatility, expected dividends, stock loan rate or liquidity relevant to the Shares or the Warrants”, and (z) for the avoidance of doubt, the Calculation Agent may determine whether the relevant Announcement Event has had a material effect on the Transaction (and, if so, adjust the terms of the Transaction accordingly) on one or more occasions on or after the date of the Announcement Event up to, and including, the Expiration Date, any Early Termination Date and/or any other date of cancellation, it being understood that any adjustment in respect of an Announcement Event shall take into account any earlier adjustment relating to the same Announcement Event.  An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, to which Article 12 of the Equity Definitions is applicable.



 






    	 	6	 



     


    




 


	 	Announcement Event:	 	(i) The public announcement by any entity of (x) any transaction or event that is reasonably likely to be completed (as determined by the Calculation Agent taking into account the effect of such announcement on the market for the Shares and/or options on the Shares) and, if completed, would constitute a Merger Event or Tender Offer, (y) any potential acquisition by Issuer and/or its subsidiaries where the aggregate consideration exceeds 25% of the market capitalization of Issuer as of the date of such announcement (an “Acquisition Transaction”) or (z) the intention to enter into a Merger Event or Tender Offer or an Acquisition Transaction, (ii) the public announcement by Issuer of an intention to solicit or enter into, or to explore strategic alternatives or other similar undertaking that includes, a Merger Event or Tender Offer or an Acquisition Transaction or (iii) any subsequent public announcement by any entity of a change to a transaction or intention that is the subject of an announcement of the type described in clause (i) or (ii) of this sentence (including, without limitation, a new announcement, whether or not by the same party, relating to such a transaction or intention or the announcement of a withdrawal from, or the abandonment or discontinuation of, such a transaction or intention), as determined by the Calculation Agent.  For the avoidance of doubt, the occurrence of an Announcement Event with respect to any transaction or intention shall not preclude the occurrence of a later Announcement Event with respect to such transaction or intention. For purposes of this definition of “Announcement Event,” the remainder of the definition of “Merger Event” in Section 12.1(b) of the Equity Definitions following the definition of “Reverse Merger” therein shall be disregarded.
	 	 	 	 
	 	Nationalization, Insolvency or Delisting:	 	Cancellation and Payment (Calculation Agent Determination); provided that, 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); if the Shares are 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), such exchange or quotation system shall thereafter be deemed to be the Exchange.



 






    	 	7	 



     


    




 


	 	Additional Disruption Events:	 	 
	 	 	 	 
	 	Change in Law:	 	Applicable; provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the word “Shares” where it appears in clause (X) thereof with the words “Hedge Position” and (ii) replacing the parenthetical beginning after the word “regulation” in the second line thereof the words “(including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption, effectiveness or promulgation of new regulations authorized or mandated by existing statute)” at the end of clause (A) thereof.
	 	 	 	 
	 	Failure to Deliver:	 	Not Applicable
	 	 	 	 
	 	Insolvency Filing:	 	Applicable
	 	 	 	 
	 	Hedging Disruption:	 	Applicable; provided that:




 


	 		(i)	Section
                                         12.9(a)(v) of the Equity Definitions is hereby amended by (a) inserting the following
                                         words at the end of clause (A) thereof: “in the manner contemplated by the Hedging
                                         Party on the Trade Date” and (b) inserting the following two phrases at the
                                         end of such Section:
	 	 	 	 
	 	 	 	“,
provided that any such inability that occurs solely due to the deterioration of the creditworthiness of the Hedging Party
shall not be deemed a Hedging Disruption. For the avoidance of doubt, the term “equity price risk” shall be deemed
to include, but shall not be limited to, stock price and volatility risk. And, for the further avoidance of doubt, any such transactions
or assets referred to in phrases (A) or (B) above must be available on commercially reasonable pricing terms.”; and



 


		 	(ii)	Section
                                         12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line
                                         thereof, after the words “to terminate the Transaction”, the words “or
                                         a portion of the Transaction affected by such Hedging Disruption”.



 


	 	Increased Cost of Hedging:	 	Not Applicable
	 	 	 	 
	 	Loss of Stock Borrow:	 	Applicable, it being understood that the rate to borrow Shares shall be determined without regard to the Hedging Party’s cost of funding in connection with such borrowings.
	 	 	 	 
	 	Maximum Stock Loan Rate:	 	200 basis points
	 	 	 	 
	 	Increased Cost of Stock Borrow:	 	Applicable, it being understood that the rate to borrow Shares shall be determined without regard to the Hedging Party’s cost of funding in connection with such borrowings.



 






    	 	8	 



     


    

 


	 	Initial Stock Loan Rate:	 	0 basis points until February 1, 2023 and 25 basis points thereafter.
	 	 	 	 
	 	Hedging Party:	 	For all applicable Additional Disruption Events, Dealer.
	 	 	 	 
	 	Determining Party:	 	For all applicable Extraordinary Events, Dealer.
	 	 	 	 
	 	Non-Reliance:	 	Applicable
	 	 	 	 
	 	Agreements and Acknowledgments	 	 
	 	 	 	 
	 	Regarding Hedging Activities:	 	Applicable
	 	 	 	 
	 	Additional Acknowledgments:	 	Applicable




 


	4.	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 (5) Exchange Business Days following notice to the Calculation Agent by Company of such failure, Company 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 (or, if earlier, the date on which such Event of Default is no longer continuing), as the Calculation Agent.




 


		5.	Account
                                         Details.



 


		(a)	Account
                                         for payments to Company:



 


To
be provided by Company.


 


Account
for delivery of Shares from Company:


 


To
be provided by Company.


 


		(b)	Account
                                         for payments to Dealer:



 


	 	Bank:	Bank of America, N.A.
	 	 	New York, NY
	 	SWIFT:	BOFAUS3N
	 	Bank Routing:	026-009-593
	 	Account Name:	Bank of America
	 	Account No.:	0012334-61892




 


Account
for delivery of Shares to Dealer:


 


DTC#:
0161


 






    	 	9	 



     


    

 


		6.	Offices.



 


		(a)	The
                                         Office of Company for the Transaction is: Inapplicable, Company is not a Multibranch
                                         Party.



 


		(b)	The
                                         Office of Dealer for the Transaction is: New York



 


Bank
of America, N.A.


c/o
Merrill Lynch, Pierce, Fenner & Smith Incorporated


One
Bryant Park


New
York, NY 10036


 


		7.	Notices.



 


		(a)	Address
                                         for notices or communications to Company:



 


Patrick
Industries, Inc.


107
W. Franklin Street,


P.O.
Box 638,




Elkhart,
Indiana 46515


	 	Attention:	Chief Financial Officer
	 	Telephone No.:	(574) 294-7511
	 	Facsimile No.:	(574) 522-5213




 


		(b)	Address
                                         for notices or communications to Dealer:



 


Bank
of America, N.A.


c/o
Merrill Lynch, Pierce, Fenner & Smith Incorporated


One
Bryant Park


New
York, NY 10036


	 	Attention:	Robert Stewart, Assistant General Counsel
	 	Telephone No.:	646-855-0711
	 	Facsimile No.:	646-822-5618
	 	Email:	rstewart4@bankofamerica.com




 


With
a copy to:


 


	 	Attention:	Chris Hutmaker
	 	Telephone No:	646-855-8907
	 	Facsimile No:	212-326-9882
	 	Email:	chris.hutmaker@baml.com




 


		8.	Representations
                                         and Warranties of Company.



 


Company
hereby represents and warrants to Dealer on the date hereof, on and as of the Premium Payment Date and, in the case of the representations
in Section 8(d), at all times until termination of the Transaction, that:


 


		(a)	Company
                                         has all necessary corporate power and authority to execute, deliver and perform its obligations
                                         in respect of the Transaction; such execution, delivery and performance have been duly
                                         authorized by all necessary corporate action on Company’s part; and this Confirmation
                                         has been duly and validly executed and delivered by Company and constitutes its valid
                                         and binding obligation, enforceable against Company in accordance with its terms, subject
                                         to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
                                         and similar laws affecting creditors’ rights and remedies generally, and subject,
                                         as to enforceability, to general principles of equity, including principles of commercial
                                         reasonableness, good faith and fair dealing (regardless of whether enforcement is sought
                                         in a proceeding at law or in equity) and except that rights to indemnification and contribution
                                         hereunder may be limited by federal or state securities laws or public policy relating
                                         thereto.



 






    	 	10	 



     


    

 


		(b)	Neither
                                         the execution and delivery of this Confirmation nor the incurrence or performance of
                                         obligations of Company hereunder will conflict with or result in a breach of the certificate
                                         of incorporation or by-laws (or any equivalent documents) of Company, or any applicable
                                         law or regulation, or any order, writ, injunction or decree of any court or governmental
                                         authority or agency, or any agreement or instrument filed as an exhibit to Counterparty’s
                                         Annual Report on Form 10-K for the year ended December 31, 2016, as updated by any subsequent
                                         filings to which Company or any of its subsidiaries is a party or by which Company or
                                         any of its subsidiaries is bound or to which Company or any of its subsidiaries is subject,
                                         or constitute a default under, or result in the creation of any lien under, any such
                                         agreement or instrument.



 


		(c)	No
                                         consent, approval, authorization, or order of, or filing with, any governmental agency
                                         or body or any court is required in connection with the execution, delivery or performance
                                         by Company of this Confirmation, except such as have been obtained or made and such as
                                         may be required under the Securities Act of 1933, as amended (the “Securities
                                         Act”) or state securities laws.



 


		(d)	A
                                         number of Shares equal to the Maximum Number of Shares (as defined below) (the “Warrant
                                         Shares”) have been reserved for issuance by all required corporate action of
                                         Company. The Warrant Shares have been duly authorized and, when delivered against payment
                                         therefor (which may include Net Share Settlement in lieu of cash) and otherwise as contemplated
                                         by the terms of the Warrants following the exercise of the Warrants in accordance with
                                         the terms and conditions of the Warrants, will be validly issued, fully-paid and non-assessable,
                                         and the issuance of the Warrant Shares will not be subject to any preemptive or similar
                                         rights.



 


		(e)	Company
                                         is not and, after consummation of the transactions contemplated hereby, will not be required
                                         to register as an “investment company” as such term is defined in the Investment
                                         Company Act of 1940, as amended.



 


		(f)	Company
                                         is an “eligible contract participant” (as such term is defined in Section
                                         1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible
                                         contract participant under Section 1a(18)(C) of the Commodity Exchange Act).



 


		(g)	Company
                                         is not, on the date hereof, in possession of any material non-public information with
                                         respect to Company or the Shares.



 


		(h)	To
                                         Company’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s)
                                         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.



 


		(i)	Company
                                         (A) is capable of evaluating investment risks independently, both in general and with
                                         regard to all transactions and investment strategies involving a security or securities;
                                         (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer
                                         or its associated persons, unless it has otherwise notified the broker-dealer in writing;
                                         and (C) has total assets of at least $50 million.



 


		(j)	The
                                         assets of Company do not constitute “plan assets” under the Employee Retirement
                                         Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated
                                         thereunder or similar law.



 


		(k)	Each
                                         party acknowledges and agrees to be bound by the Conduct Rules of the Financial Industry
                                         Regulatory Authority applicable to transactions in options, and further agrees not to
                                         violate the position and exercise limits set forth therein.



 


		9.	Other
                                         Provisions.



 


		(a)	Opinions.
                                         Company shall deliver to Dealer an opinion of counsel, dated as of the Premium Payment
                                         Date, with respect to the matters set forth in Sections 8(a) through (d) of this Confirmation
                                         (except as to whether this Confirmation constitutes Company’s valid and binding
                                         obligation or is enforceable in accordance with its terms); provided that any
                                         such opinion of counsel may contain customary exceptions and qualifications. Delivery
                                         of such opinion to Dealer shall be a condition precedent for the purpose of Section 2(a)(iii)
                                         of the Agreement with respect to each obligation of Dealer under Section 2(a)(i) of the
                                         Agreement.



 






    	 	11	 



     


    

 


		(b)	Repurchase
                                         Notices. Company shall, on or prior to the opening of the regular trading session
                                         for the Shares on the Exchange on the date that is one Scheduled Trading Day following
                                         any date on which Company obtains actual knowledge that it has effected any repurchase
                                         of Shares, promptly give Dealer a written notice of such repurchase (a “Repurchase
                                         Notice”) on such day if following such repurchase, the number of outstanding
                                         Shares as determined on such day is (i) less than 22.5 million (in the case of the first
                                         such notice) or (ii) thereafter more than 2.2 million less than the number of Shares
                                         included in the immediately preceding Repurchase Notice. Company agrees to indemnify
                                         and hold harmless Dealer and its affiliates and their respective officers, directors,
                                         employees, affiliates, advisors, agents and controlling persons (each, an “Indemnified
                                         Person”) from and against any and all losses (including losses relating to
                                         Dealer’s commercially reasonable hedging activities as a consequence of becoming,
                                         or of the risk of becoming, a Section 16 “insider”, including without limitation,
                                         any forbearance from hedging activities or cessation of hedging activities and any losses
                                         in connection therewith with respect to the Transaction), claims, damages, judgments,
                                         liabilities and reasonable, documented out-of-pocket expenses (including reasonable attorney’s
                                         fees), joint or several, which an Indemnified Person actually may become subject to,
                                         in each case, as a result of Company’s failure to provide Dealer with a Repurchase
                                         Notice on the day and in the manner specified in this paragraph, and to reimburse, within
                                         30 days, upon written request, each of such Indemnified Persons for any reasonable legal
                                         or other expenses incurred in connection with investigating, preparing for, providing
                                         testimony or other evidence in connection with or defending any of the foregoing. If
                                         any suit, action, proceeding (including any governmental or regulatory investigation),
                                         claim or demand shall be brought or asserted against the Indemnified Person, such Indemnified
                                         Person shall promptly notify Company in writing, and Company, upon request of the Indemnified
                                         Person, shall retain counsel reasonably satisfactory to the Indemnified Person to represent
                                         the Indemnified Person and any others Company may designate in such proceeding and shall
                                         pay the reasonable, documented fees and expenses of such counsel related to such proceeding.
                                         Company shall not be liable for any such settlement of any proceeding effected without
                                         its written consent, but if settled with such consent or if there be a final judgment
                                         for the plaintiff, Company agrees to indemnify any Indemnified Person from and against
                                         any loss or liability by reason of such settlement or judgment. Company shall not, without
                                         the prior written consent of the Indemnified Person, effect any settlement of any such
                                         proceeding that is pending or threatened in respect of which any Indemnified Person is
                                         or could have been a party and indemnity could have been sought hereunder by such Indemnified
                                         Person, unless such settlement includes an unconditional release of such Indemnified
                                         Person from all liability on claims that are the subject matter of such proceeding on
                                         terms reasonably satisfactory to such Indemnified Person. If the indemnification provided
                                         for in this paragraph is unavailable to an Indemnified Person or insufficient in respect
                                         of any losses, claims, damages or liabilities referred to therein, then Company under
                                         such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute
                                         to the amount paid or payable by such Indemnified Person as a result of such losses,
                                         claims, damages or liabilities. The remedies provided for in this paragraph are not exclusive
                                         and shall not limit any rights or remedies which may otherwise be available to any Indemnified
                                         Person at law or in equity. The indemnity and contribution agreements contained in this
                                         paragraph shall remain operative and in full force and effect regardless of the termination
                                         of the Transaction.



 


		(c)	Regulation
                                         M. Company is not on the Trade Date engaged in a distribution, as such term is
                                         used in Regulation M under the Securities Exchange Act of 1934, as amended (the “Exchange
                                         Act”), of any securities of Company, other than a distribution meeting the
                                         requirements of the exception set forth in Rules 101(b)(10) and 102(b)(7) of Regulation
                                         M. Company shall not, until the second Scheduled Trading Day immediately following the
                                         Effective Date, engage in any such distribution.



 






    	 	12	 



     


    

 


		(d)	No
                                         Manipulation. Company is not entering into the Transaction to create actual or
                                         apparent trading activity in the Shares (or any security convertible into or exchangeable
                                         for the Shares) or to raise or depress or manipulate the price of the Shares (or any
                                         security convertible into or exchangeable for the Shares) in violation of the Exchange
                                         Act.



 


		(e)	Transfer
                                         or Assignment. Company may not transfer any of its rights or obligations under
                                         the Transaction without the prior written consent of Dealer. Dealer may transfer or assign
                                         all or any part of its rights or obligations under the Transaction (x) without Company’s
                                         consent, to any wholly owned direct or indirect subsidiary of Bank of America Corporation
                                         or any nationally recognized dealer in over-the-counter corporate equity derivatives
                                         or (y) with Company’s consent (such consent not to be unreasonably withheld or
                                         delayed) to any other third party; provided that, under the applicable law effective
                                         on the date of such assignment, Company will not, as a result of such transfer or assignment,
                                         be required to pay the transferee or assignee on any payment date an amount under Section
                                         2(d)(i)(4) of the Agreement greater than the amount that Company would have been required
                                         to pay to Dealer in the absence of such transfer or assignment. If at any time at which
                                         (A) the Section 16 Percentage exceeds 8.5%, (B) the Warrant Equity Percentage exceeds
                                         14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any
                                         such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”),
                                         Dealer, acting in good faith, is unable after using its commercially reasonable efforts
                                         to effect a transfer or assignment of Warrants to a third party on pricing terms reasonably
                                         acceptable to Dealer and within a time period reasonably acceptable to Dealer such that
                                         no Excess Ownership Position exists, then Dealer may designate any Exchange Business
                                         Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated
                                         Portion”), such that following such partial termination no Excess Ownership
                                         Position exists. In the event that Dealer so designates an Early Termination Date with
                                         respect to a Terminated Portion, a payment shall be made pursuant to Section 6 of the
                                         Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction
                                         having terms identical to the Transaction and a Number of Warrants equal to the number
                                         of Warrants underlying the Terminated Portion, (2) Company were the sole Affected Party
                                         with respect to such partial termination and (3) the Terminated Portion were the sole
                                         Affected Transaction (and, for the avoidance of doubt, the provisions of Section ‎9(j)
                                         shall apply to any amount that is payable by Company to Dealer pursuant to this sentence
                                         as if Company was not the Affected Party). The “Section 16 Percentage”
                                         as of any day is the fraction, expressed as a percentage, (A) the numerator of which
                                         is the number of Shares that Dealer and any of its affiliates or any other person subject
                                         to aggregation with Dealer for purposes of the “beneficial ownership” test
                                         under Section 13 of the Exchange Act, or any “group” (within the meaning
                                         of Section 13 of the Exchange Act) of which Dealer is or may be deemed to be a part beneficially
                                         owns (within the meaning of Section 13 of the Exchange Act), without duplication, on
                                         such day (or, to the extent that for any reason the equivalent calculation under Section
                                         16 of the Exchange Act and the rules and regulations thereunder results in a higher number,
                                         such higher number) and (B) the denominator of which is the number of Shares outstanding
                                         on such day. The “Warrant Equity Percentage” as of any day is the
                                         fraction, expressed as a percentage, (A) the numerator of which is the sum of (1) the
                                         product of the Number of Warrants and the Warrant Entitlement and (2) the aggregate number
                                         of Shares underlying any other warrants purchased by Dealer from Company, and (B) the
                                         denominator of which is the number of Shares outstanding. 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, regulatory order or organizational
                                         documents or contracts of Company that are, in each case, applicable to ownership of
                                         Shares (“Applicable Restrictions”), owns, beneficially owns, constructively
                                         owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership
                                         under any Applicable Restriction, as determined by Dealer in its reasonable discretion.
                                         The “Applicable Share Limit” means a number of Shares equal to (A)
                                         the minimum number of Shares that could give rise to reporting or registration obligations
                                         (except for any filing requirements on Form 13F, Schedule 13D or Schedule 13G under the
                                         Exchange Act, in each case, as in effect on the Trade Date) or other requirements (including
                                         obtaining prior approval from any person or entity) of a Dealer Person, or could result
                                         in an adverse effect on a Dealer Person, under any Applicable Restriction, as determined
                                         by Dealer in its reasonable discretion, minus (B) 1% of the number of Shares outstanding.
                                         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,
                                         or make or receive any payment in cash, to or from Company, Dealer may designate any
                                         of its affiliates to purchase, sell, receive or deliver such Shares or other securities,
                                         or make or receive such payment in cash, 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 Company to the extent of any such performance.



 






    	 	13	 



     


    

 


		(f)	Dividends.
                                         If at any time during the period from and including the Effective Date, to and including
                                         the last Expiration Date, an ex-dividend date for a cash dividend occurs with respect
                                         to the Shares, then the Calculation Agent will adjust in a commercially reasonable manner
                                         any of the Strike Price, Number of Warrants, Daily Number of Warrants, the Warrant Entitlement
                                         and/or the Expiration Dates , in each case, to preserve the fair value of the Warrants
                                         after taking into account such dividend.



 


		(g)	[Reserved].



 


		(h)	Additional
                                         Provisions.



 


		(i)	Amendments
                                         to the Equity Definitions:



 


		(A)	Section
                                         11.2(a) of the Equity Definitions is hereby amended by deleting the words “a diluting
                                         or concentrative” and replacing them with the words “a material”; and
                                         adding the phrase “or Warrants” at the end of the sentence.



 


		(B)	Section
                                         11.2(c) of the Equity Definitions is hereby amended by (w) replacing the words “a
                                         diluting or concentrative” with “an” in the fifth line thereof, (x)
                                         adding the phrase “or Warrants” after the words “the relevant Shares”
                                         in the same sentence, (y) deleting the words “diluting or concentrative”
                                         in the sixth to last line thereof and (z) deleting the phrase “(provided that no
                                         adjustments will be made to account solely for changes in volatility, expected dividends,
                                         stock loan rate or liquidity relative to the relevant Shares)” and replacing it
                                         with the phrase “(provided that, solely in the case of Sections 11.2(e)(i), (ii)(A),
                                         (iv) and (v), no adjustments will be made to account solely for changes in volatility,
                                         expected dividends, stock loan rate or liquidity relative to the relevant Shares but,
                                         for the avoidance of doubt, solely in the case of Sections 11.2(e)(ii)(B) through (D),
                                         (iii), (vi) and (vii) adjustments may be made to account solely for changes in volatility,
                                         expected dividends, stock loan rate or liquidity relative to the relevant Shares).”



 


		(C)	Section
                                         11.2(e)(vii) of the Equity Definitions is hereby amended by deleting the words “a
                                         diluting or concentrative” and replacing them with the word “a material”;
                                         and adding the phrase “or Warrants” at the end of the sentence.



 


		(D)	Section
                                         12.6(a)(ii) of the Equity Definitions is hereby amended by (1) inserting “(1)”
                                         immediately following the word “means” in the first line thereof and (2)
                                         inserting immediately prior to the semi-colon at the end of subsection (B) thereof the
                                         following words: “or (2) the occurrence of any of the events specified in Section
                                         5(a)(vii)(1) through (9) of the ISDA Master Agreement with respect to that Issuer”.



 


		(E)	Section
                                         12.9(b)(iv) of the Equity Definitions is hereby amended by:



 


		(x)	deleting
                                         (1) subsection (A) in its entirety, (2) the phrase “or (B)” following subsection
                                         (A) and (3) the phrase “in each case” in subsection (B); and



 






    	 	14	 



     


    

 


		(y)	replacing
                                         the phrase “neither the Non-Hedging Party nor the Lending Party lends Shares”
                                         with the phrase “such Lending Party does not lend Shares” in the penultimate
                                         sentence.



 


		(F)	Section
                                         12.9(b)(v) of the Equity Definitions is hereby amended by:



 


		(x)	adding
                                         the word “or” immediately before subsection “(B)” and deleting
                                         the comma at the end of subsection (A); and



 


		(y)	(1)
                                         deleting subsection (C) in its entirety, (2) deleting the word “or” immediately
                                         preceding subsection (C), (3) deleting the penultimate sentence in its entirety and replacing
                                         it with the sentence “The Hedging Party will determine the Cancellation Amount
                                         payable by one party to the other.” and (4) deleting clause (X) in the final
                                         sentence.



 


		(ii)	Notwithstanding
                                         anything to the contrary in this Confirmation, upon the occurrence of one of the following
                                         events, with respect to the Transaction, (1) Dealer shall have the right to designate
                                         such event an Additional Termination Event and designate an Early Termination Date pursuant
                                         to Section 6(b) of the Agreement, (2) Company shall be deemed the sole Affected Party
                                         with respect to such Additional Termination Event and (3) the Transaction, or, at the
                                         election of Dealer in its sole discretion, any portion of the Transaction, shall be deemed
                                         the sole Affected Transaction; provided that if Dealer so designates an Early
                                         Termination Date with respect to a portion of the Transaction, (a) a payment shall
                                         be made pursuant to Section 6 of the Agreement as if an Early Termination Date had been
                                         designated in respect of a Transaction having terms identical to the Transaction and
                                         a Number of Warrants equal to the number of Warrants included in the terminated portion
                                         of the Transaction, and (b) for the avoidance of doubt, the Transaction shall remain
                                         in full force and effect except that the Number of Warrants shall be reduced by the number
                                         of Warrants included in such terminated portion:



 


		(A)	A
                                         “person” or “group” within the meaning of Section 13(d) of the
                                         Exchange Act, other than Company, its wholly owned subsidiaries and its and their employee
                                         benefit plans, files any schedule, form or report under the Exchange Act that discloses
                                         that such person or group has become the direct or indirect “beneficial owner,”
                                         as defined in Rule 13d-3 under the Exchange Act, of the Shares representing more than
                                         50% of the voting power of the Shares, unless such beneficial ownership (i) arises solely
                                         as a result of a revocable proxy delivered in response to a public proxy or consent solicitation
                                         made pursuant to the applicable rules and regulations under the Exchange Act and (ii)
                                         is not also then reportable on Schedule 13D or Schedule 13G (or any successor schedule)
                                         under the Exchange Act as a result thereof; provided that no person or group shall
                                         be deemed to be the beneficial owner of any securities tendered pursuant to a tender
                                         or exchange offer made by or on behalf of such person or group until such tendered securities
                                         are accepted for purchase or exchange under such offer.



 


		(B)	Consummation
                                         of (I) any recapitalization, reclassification or change of the Shares (other than changes
                                         resulting from a subdivision or combination or a change solely in par value) as a result
                                         of which the Shares would be converted into, or exchanged for, stock, other securities,
                                         other property or assets, (II) any share exchange, consolidation or merger of Company
                                         pursuant to which the Shares will be converted into cash, securities or other property
                                         or assets or (III) any sale, lease or other transfer in one transaction or a series
                                         of transactions of all or substantially all of the consolidated assets of Company and
                                         its subsidiaries, taken as a whole, to any person other than one or more of Company’s
                                         wholly owned direct or indirect subsidiaries. Notwithstanding the foregoing, any transaction
                                         or transactions set forth in clause (A) above or this clause (B) shall not constitute
                                         an Additional Termination Event if (x) at least 90% of the consideration received
                                         or to be received by holders of the Shares, excluding cash payments for fractional Shares
                                         and cash payments made in respect of dissenters’ appraisal rights, in connection
                                         with such transaction or transactions consists of shares of common stock that are listed
                                         or quoted on any of The New York Stock Exchange, The NASDAQ Global Select Market or The
                                         NASDAQ Global Market (or any of their respective successors) or will be so listed or
                                         quoted when issued or exchanged in connection with such transaction or transactions,
                                         and (y) as a result of such transaction or transactions, the Shares will consist
                                         of such consideration, excluding cash payments for fractional Shares and cash payments
                                         made in respect of dissenters’ appraisal rights.



 






    	 	15	 



     


    

 


		(C)	Default
                                         by Company or any of its Significant Subsidiaries with respect to any mortgage, agreement
                                         or other instrument under which there is outstanding, or by which there is secured or
                                         evidenced, any indebtedness for money borrowed in excess of $25 million (or its foreign
                                         currency equivalent) in the aggregate of Company and/or any such subsidiary, whether
                                         such indebtedness exists as of the Premium Payment Date or is thereafter created, where
                                         such default (i) results in such indebtedness becoming or being declared due and payable
                                         prior to its stated maturity date or (ii) constitutes a failure to pay the principal
                                         or interest of any such debt when due and payable (after the expiration of all applicable
                                         grace periods) at its stated maturity, upon required repurchase, upon declaration of
                                         acceleration or otherwise, and in the cases of clauses (i) and (ii), such acceleration
                                         shall not have been rescinded or annulled or such failure to pay or default shall not
                                         have been cured or waived, or such indebtedness is not paid or discharged, as the case
                                         may be, within 30 days after written notice to Company in accordance with the relevant
                                         indenture.



 


		(D)	A
                                         final judgment or judgments for the payment of $25 million (or its foreign currency equivalent)
                                         or more (excluding any amounts covered by insurance) in the aggregate rendered against
                                         Company or any of its Significant Subsidiaries, which judgment is not discharged, bonded,
                                         paid, waived or stayed within 60 days after (I) the date on which the right to appeal
                                         thereof has expired if no such appeal has commenced, or (II) the date on which all rights
                                         to appeal have been extinguished.



 


		(E)	Dealer
                                         reasonably determines, based on advice of counsel, that hedging its exposure with respect
                                         to the Transaction in the public market without registration under the Securities Act
                                         would raise material risks under applicable securities laws or regulatory or self-regulatory
                                         requirements or related policies and procedures (whether or not such requirements, policies
                                         or procedures are imposed by law or have been voluntarily adopted by Dealer, but provided
                                         that such policies and procedures have been adopted by Dealer in good faith and are generally
                                         applicable in similar situations and applied in a non-discriminatory manner).



 


“Significant
Subsidiary” means a subsidiary that is a “significant subsidiary” as defined in Article 1, Rule 1-02 of
Regulation S-X promulgated by the Securities and Exchange Commission; provided that, in the case of a subsidiary that meets
the criteria of clause (3) of the definition thereof but not clause (1) or (2) thereof, such subsidiary shall not be deemed to
be a Significant Subsidiary unless the subsidiary’s income from continuing operations before income taxes, extraordinary
items and cumulative effect of a change in accounting principle exclusive of amounts attributable to any noncontrolling interests
for the last completed fiscal year prior to the date of such determination exceeds $10,000,000.


 


		(i)	No
                                         Collateral or Setoff. Notwithstanding any provision of the Agreement or any other
                                         agreement between the parties to the contrary, the obligations of Company hereunder are
                                         not secured by any collateral. The provisions of Section 2(c) of the Agreement shall
                                         not apply to the Transaction. Each party waives any and all rights it may have to set-off
                                         delivery or payment obligations it owes to the other party under the Agreement and the
                                         Transaction against any delivery or payment obligations owed to it by the other party
                                         under any other agreement between the parties hereto, by operation of law or otherwise.



 






    	 	16	 



     


    

 


		(j)	Alternative
                                         Calculations and Payment on Early Termination and on Certain Extraordinary Events.



 


		(i)	If
                                         (a) an Early Termination Date (whether as a result of an Event of Default or a Termination
                                         Event) occurs or is designated with respect to the Transaction or (b) the Transaction
                                         is cancelled or terminated upon the occurrence of an Extraordinary Event (except as a
                                         result of (i) a Nationalization, Insolvency or Merger Event in which the consideration
                                         to be paid to holders of Shares consists solely of cash, (ii) a Merger Event or Tender
                                         Offer that is within Company’s control, or (iii) an Event of Default in which Company
                                         is the Defaulting Party or a Termination Event in which Company is the Affected Party
                                         other than an Event of Default of the type described in Section 5(a)(iii), (v), (vi),
                                         (vii) or (viii) of the Agreement or a Termination Event of the type described in Section
                                         5(b) of the Agreement, in each case that resulted from an event or events outside Company’s
                                         control), and if Company would owe any amount to Dealer pursuant to Section 6(d)(ii)
                                         of the Agreement or any Cancellation Amount pursuant to Article 12 of the Equity Definitions
                                         (any such amount, a “Payment Obligation”), then Company shall satisfy
                                         the Payment Obligation by the Share Termination Alternative (as defined below), unless
                                         (a) Company gives irrevocable telephonic notice to Dealer, confirmed in writing
                                         within one Scheduled Trading Day, no later than 12:00 p.m. (New York City time) on the
                                         Merger Date, Tender Offer Date, Announcement Date (in the case of a Nationalization,
                                         Insolvency or Delisting), Early Termination Date or date of cancellation, as applicable,
                                         of its election that the Share Termination Alternative shall not apply, (b) Company remakes
                                         the representation set forth in Section ‎8(g) as of the date of such election and
                                         (c) Dealer agrees, in its sole discretion, to such election, in which case the provisions
                                         of Section 12.7 or Section 12.9 of the Equity Definitions, or the provisions of Section
                                         6(d)(ii) of the Agreement, as the case may be, shall apply.



 


	 	Share
Termination Alternative:	If applicable, Company shall deliver to Dealer the Share Termination Delivery Property on the date
(the “Share Termination Payment Date”) on which the Payment Obligation would otherwise be due pursuant to Section
12.7 or Section 12.9 of the Equity Definitions or Section 6(d)(ii) of the Agreement, as applicable, subject to Section 9(k)(i)
below, in satisfaction, subject to Section 9(k)(ii) below, of the relevant Payment Obligation, in the manner reasonably requested
by Dealer free of payment.


 


		Share
                                                                                    Termination Delivery Property:	A
                                         number of Share Termination Delivery Units, as calculated by the Calculation Agent, equal
                                         to the relevant Payment Obligation divided by the Share Termination Unit Price.
                                         The Calculation Agent shall adjust the amount of Share Termination Delivery Property
                                         by replacing any fractional portion of a security therein with an amount of cash equal
                                         to the value of such fractional security based on the values used to calculate the Share
                                         Termination Unit Price (without giving effect to any discount pursuant to Section ‎9(k)(i)).



 






    	 	17	 



     


    

 


	 	Share Termination Unit Price:	The value of property contained in one Share Termination Delivery Unit on the date such Share Termination Delivery Units are to be delivered as Share Termination Delivery Property, as determined by the Calculation Agent in its discretion by commercially reasonable means. In the case of a Private Placement of Share Termination Delivery Units that are Restricted Shares (as defined below), as set forth in Section 9(k)(i) below, the Share Termination Unit Price shall be determined by the discounted price applicable to such Share Termination Delivery Units. In the case of a Registration Settlement of Share Termination Delivery Units that are Restricted Shares (as defined below) as set forth in Section 9(k)(ii) below, notwithstanding the foregoing, the Share Termination Unit Price shall be the Settlement Price on the Merger Date, Tender Offer Date, Announcement Date (in the case of a Nationalization, Insolvency or Delisting), Early Termination Date or date of cancellation, as applicable. The Calculation Agent shall notify Company of the Share Termination Unit Price at the time of notification of such Payment Obligation to Company or, if applicable, at the time the discounted price applicable to the relevant Share Termination Units is determined pursuant to Section 9(k)(i).
	 	 	 
	 	Share Termination Delivery Unit:	One Share or, if the Shares have changed into cash or any other property or the right to receive cash or any other property as the result of a Nationalization, Insolvency or Merger Event (any such cash or other property, the “Exchange Property”), a unit consisting of the type and amount of Exchange Property received by a holder of one Share (without consideration of any requirement to pay cash or other consideration in lieu of fractional amounts of any securities) in such Nationalization, Insolvency or Merger Event. If such Nationalization, Insolvency or Merger Event involves a choice of Exchange Property to be received by holders, such holder shall be deemed to have elected to receive the maximum possible amount of cash.
	 	 	 
	 	Failure to Deliver:	Inapplicable
	 	 	 
	 	Other applicable provisions:	If Share Termination Alternative is applicable, the provisions of Sections 9.8, 9.9, 9.11 and 9.12 (as modified above) of the Equity Definitions will be applicable, except that all references in such provisions to “Physically-settled” shall be read as references to “Share Termination Settled” and all references to “Shares” shall be read as references to “Share Termination Delivery Units”. “Share Termination Settled” in relation to the Transaction means that the Share Termination Alternative is applicable to the Transaction.




 






    	 	18	 



     


    

 


		(k)	Registration/Private
                                         Placement Procedures. If, in the reasonable opinion of Dealer, based on advice
                                         from counsel, following any delivery of Shares or Share Termination Delivery Property
                                         to Dealer hereunder, such Shares or Share Termination Delivery Property would be in the
                                         hands of Dealer subject to any applicable restrictions with respect to any registration
                                         or qualification requirement or prospectus delivery requirement for such Shares or Share
                                         Termination Delivery Property pursuant to any applicable federal or state securities
                                         law (including, without limitation, any such requirement arising under Section 5 of the
                                         Securities Act as a result of such Shares or Share Termination Delivery Property being
                                         “restricted securities”, as such term is defined in Rule 144 under the Securities
                                         Act, or as a result of the sale of such Shares or Share Termination Delivery Property
                                         being subject to paragraph (c) of Rule 145 under the Securities Act) (such Shares or
                                         Share Termination Delivery Property, “Restricted Shares”), then delivery
                                         of such Restricted Shares shall be effected pursuant to either clause (i) or (ii) below
                                         at the election of Company, unless Dealer waives the need for registration/private placement
                                         procedures set forth in (i) and (ii) below. Notwithstanding the foregoing, solely in
                                         respect of any Daily Number of Warrants exercised or deemed exercised on any Expiration
                                         Date, Company shall elect, prior to the first Settlement Date for the first applicable
                                         Expiration Date, a Private Placement Settlement or Registration Settlement, consistent
                                         with transactions of a similar size, for all deliveries of Restricted Shares for all
                                         such Expiration Dates which election shall be applicable to all remaining Settlement
                                         Dates for such Warrants and the procedures in clause (i) or clause (ii) below shall apply
                                         for all such delivered Restricted Shares on an aggregate basis commencing after the final
                                         Settlement Date for such Warrants. The Calculation Agent shall make reasonable adjustments,
                                         consistent with transactions of a similar size, to settlement terms and provisions under
                                         this Confirmation to reflect a single Private Placement or Registration Settlement for
                                         such aggregate Restricted Shares delivered hereunder.



 


		(i)	If
                                         Company elects to settle the Transaction pursuant to this clause (i) (a “Private
                                         Placement Settlement”), then delivery of Restricted Shares by Company shall
                                         be effected in customary private placement procedures with respect to such Restricted
                                         Shares reasonably acceptable to Dealer; provided that Company 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 Company 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). 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 in each case, that agrees
                                         to enter into a confidentiality agreement with Company in customary form for due diligence
                                         investigations similar in scope), opinions and certificates, and such other documentation
                                         as is customary for private placement agreements for private placements of equity securities
                                         of comparable size of companies of comparable size, maturity and line of business (but
                                         provided that Company shall only be required to use commercially reasonable efforts to
                                         deliver any such documentation the delivery of which is not entirely within Company’s
                                         control), all reasonably acceptable to Dealer. In the case of a Private Placement Settlement,
                                         Dealer shall determine the appropriate commercially reasonable discount to the Share
                                         Termination Unit Price (in the case of settlement of Share Termination Delivery Units
                                         pursuant to Section 9(j) above) or premium to any Settlement Price (in the case of settlement
                                         of Shares pursuant to Section 2 above) applicable to such Restricted Shares in a commercially
                                         reasonable manner and appropriately adjust the number of such Restricted Shares to be
                                         delivered to Dealer hereunder, which discount or premium, as the case may be, shall only
                                         take into account the illiquidity resulting from the fact that the Restricted Shares
                                         will not be registered for resale and any commercially reasonable fees and expenses of
                                         Dealer (and any affiliate thereof) in connection with such resale. Notwithstanding anything
                                         to the contrary in the Agreement or this Confirmation, the date of delivery of such Restricted
                                         Shares shall be the Exchange Business Day following notice by Dealer to Company of such
                                         applicable discount or premium, as the case may be, and 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 Share Termination Payment Date (in the case of settlement of Share Termination Delivery
                                         Units pursuant to Section 9(j) above) or on the Settlement Date for such Restricted Shares
                                         (in the case of settlement in Shares pursuant to Section 2 above).



 






    	 	19	 



     


    

 


		(ii)	If
                                         Company elects to settle the Transaction pursuant to this clause (ii) (a “Registration
                                         Settlement”), then Company shall promptly (but in any event no later than the
                                         beginning of the Resale Period) file and use its reasonable best efforts to make effective
                                         under the Securities Act a registration statement or supplement or amend an outstanding
                                         registration statement in form and substance reasonably satisfactory to Dealer, to cover
                                         the resale of such Restricted Shares in accordance with customary resale registration
                                         procedures, including covenants, conditions, representations, underwriting discounts
                                         (if applicable), commissions (if applicable), indemnities due diligence rights, opinions
                                         and certificates, and such other documentation as is customary for equity resale underwriting
                                         agreements for registered secondary offerings of equity securities of comparable size
                                         of companies of comparable size, maturity and line of business, all reasonably acceptable
                                         to Dealer. If Dealer, in its sole reasonable discretion, is not satisfied with such procedures
                                         and documentation Private Placement Settlement shall apply. If Dealer is satisfied with
                                         such procedures and documentation, it shall sell the Restricted Shares pursuant to such
                                         registration statement during a period (the “Resale Period”) commencing
                                         on the Exchange Business Day following delivery of such Restricted Shares (which, for
                                         the avoidance of doubt, shall be (x) the Share Termination Payment Date in case of settlement
                                         in Share Termination Delivery Units pursuant to Section 9(j) above or (y) the Settlement
                                         Date in respect of the final Expiration Date for all Daily Number of Warrants) and ending
                                         on the earliest of (i) the Exchange Business Day on which Dealer completes the sale of
                                         all Restricted Shares in a commercially reasonable manner or, in the case of settlement
                                         of Share Termination Delivery Units, a sufficient number of Restricted Shares so that
                                         the realized net proceeds of such sales equals or exceeds the Payment Obligation (as
                                         defined above), (ii) the date upon which all Restricted Shares have been sold or transferred
                                         pursuant to Rule 144 (or similar provisions then in force) or Rule 145(d)(2) (or any
                                         similar provision then in force) under the Securities Act and (iii) the date upon which
                                         all Restricted Shares may be sold or transferred by a non-affiliate pursuant to Rule
                                         144 (or any similar provision then in force) or Rule 145(d)(2) (or any similar provision
                                         then in force) under the Securities Act. If the Payment Obligation exceeds the realized
                                         net proceeds from such resale, Company shall transfer to Dealer by the open of the regular
                                         trading session on the Exchange on the Exchange Business Day immediately following such
                                         resale the amount of such excess (the “Additional Amount”) in cash
                                         or in a number of Shares (“Make-whole Shares”) in an amount that,
                                         based on the Settlement Price on such day (as if such day was the “Valuation Date”
                                         for purposes of computing such Settlement Price), has a dollar value equal to the Additional
                                         Amount. The Resale Period shall continue to enable the sale of the Make-whole Shares.
                                         If Company elects to pay the Additional Amount in Shares, the requirements and provisions
                                         for Registration Settlement shall apply. This provision shall be applied successively
                                         until the Additional Amount is equal to zero. In no event shall Company deliver a number
                                         of Restricted Shares greater than the Maximum Number of Shares.



 


		(iii)	Without
                                         limiting the generality of the foregoing, Company agrees that (A) any Restricted Shares
                                         delivered to Dealer may be transferred by and among Dealer and its affiliates and Company
                                         shall effect such transfer without any further action by Dealer and (B) after the period
                                         of 6 months from the Trade Date (or 1 year from the Trade Date if, at such time, informational
                                         requirements of Rule 144(c) under the Securities Act are not satisfied with respect to
                                         Company) has elapsed in respect of any Restricted Shares delivered to Dealer unless Dealer
                                         is an affiliate of Company at such time, or has been an affiliate of Company in the immediately
                                         preceding 90 days, Company shall promptly remove, or cause the transfer agent for such
                                         Restricted Shares to remove, any legends referring to any such restrictions or requirements
                                         from such Restricted Shares upon request by Dealer (or such affiliate of Dealer) to Company
                                         or such transfer agent, without any 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). Notwithstanding anything to the contrary herein, to the extent the provisions
                                         of Rule 144 of the Securities Act or any successor rule are amended, or the applicable
                                         interpretation thereof by the Securities and Exchange Commission or any court change
                                         after the Trade Date, the agreements of Company herein shall be deemed modified to the
                                         extent necessary, in the opinion of outside counsel of Company, to comply with Rule 144
                                         of the Securities Act, as in effect at the time of delivery of the relevant Shares or
                                         Share Termination Delivery Property.



 






    	 	20	 



     


    

 


		(iv)	If
                                         the Private Placement Settlement or the Registration Settlement shall not be effected
                                         as set forth in clauses (i) or (ii), as applicable, then failure to effect such Private
                                         Placement Settlement or such Registration Settlement shall constitute an Event of Default
                                         with respect to which Company shall be the Defaulting Party.



 


		(l)	Limit
                                         on Beneficial Ownership. Notwithstanding any other provisions hereof, Dealer
                                         may not exercise any Warrant hereunder or be entitled to take delivery of any Shares
                                         deliverable hereunder, and Automatic Exercise shall not apply with respect to any Warrant
                                         hereunder, to the extent (but only to the extent) that, after such receipt of any Shares
                                         upon the exercise of such Warrant or otherwise hereunder, (i) the Section 16 Percentage
                                         would exceed 9.0%, or (ii) the Share Amount would exceed the Applicable Share 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 Section 16 Percentage would exceed
                                         9.0%, or (ii) the Share Amount would exceed the Applicable Share Limit. If any delivery
                                         owed to Dealer hereunder is not made, in whole or in part, as a result of this provision,
                                         Company’s obligation to make such delivery shall not be extinguished and Company
                                         shall make such delivery as promptly as practicable after, but in no event later than
                                         one Business Day after, Dealer gives notice to Company that, after such delivery, (i)
                                         the Section 16 Percentage would not exceed 9.0%, and (ii) the Share Amount would not
                                         exceed the Applicable Share Limit.



 


		(m)	Share
                                         Deliveries. Notwithstanding anything to the contrary herein, Company agrees that
                                         any delivery of Shares or Share Termination Delivery Property shall be effected by book-entry
                                         transfer through the facilities of DTC, or any successor depositary, if at the time of
                                         delivery, such class of Shares or class of Share Termination Delivery Property is in
                                         book-entry form at DTC or such successor depositary.



 


		(n)	Waiver
                                         of Jury Trial. Each party waives, to the fullest extent permitted by applicable
                                         law, any right it may have to a trial by jury in respect of any suit, action or proceeding
                                         relating to the Transaction. Each party (i) certifies that no representative, agent or
                                         attorney of the other party has represented, expressly or otherwise, that such other
                                         party would not, in the event of such a suit, action or proceeding, seek to enforce the
                                         foregoing waiver and (ii) acknowledges that it and the other party have been induced
                                         to enter into the Transaction, as applicable, by, among other things, the mutual waivers
                                         and certifications provided herein.



 


		(o)	Tax
                                         Disclosure. Effective from the date of commencement of discussions concerning
                                         the Transaction, Company and each of its 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) that are provided to Company relating to such tax treatment and
                                         tax structure.



 


		(p)	Maximum
                                         Share Delivery.



 


		(i)	Notwithstanding
                                         any other provision of this Confirmation, the Agreement or the Equity Definitions, in
                                         no event will Company at any time be required to deliver a number of Shares greater than
                                         1,706,776 (the “Maximum Number of Shares”) to Dealer in connection
                                         with the Transaction.



 






    	 	21	 



     


    

 


		(ii)	In
                                         the event Company shall not have delivered to Dealer the full number of Shares or Restricted
                                         Shares otherwise deliverable by Company to Dealer pursuant to the terms of the Transaction
                                         because Company has insufficient authorized but unissued Shares that are not reserved
                                         for other transactions (such deficit, the “Deficit Shares”), Company
                                         shall be continually obligated to deliver, from time to time, Shares or Restricted Shares,
                                         as the case may be, to Dealer until the full number of Deficit Shares have been delivered
                                         pursuant to this Section 9(p)(ii), when, and to the extent that, (A) Shares are repurchased,
                                         acquired or otherwise received by Company or any of its subsidiaries after the Trade
                                         Date (whether or not in exchange for cash, fair value or any other consideration), (B)
                                         authorized and unissued Shares previously reserved for issuance in respect of other transactions
                                         become no longer so reserved or (C) Company additionally authorizes any unissued Shares
                                         that are not reserved for other transactions; provided that in no event shall
                                         Company deliver any Shares or Restricted Shares to Dealer pursuant to this Section 9(p)(ii)
                                         to the extent that such delivery would cause the aggregate number of Shares and Restricted
                                         Shares delivered to Dealer to exceed the Maximum Number of Shares. Company shall immediately
                                         notify Dealer of the occurrence of any of the foregoing events (including the number
                                         of Shares subject to clause (A), (B) or (C) and the corresponding number of Shares or
                                         Restricted Shares, as the case may be, to be delivered) and promptly deliver such Shares
                                         or Restricted Shares, as the case may be, thereafter.



 


		(q)	Right
                                         to Extend. The Calculation Agent may postpone or add, in a commercially reasonable
                                         manner, in whole or in part, any Expiration Date or any other date of valuation or delivery
                                         with respect to some or all of the relevant Warrants (in which event the Calculation
                                         Agent shall make appropriate adjustments to the Daily Number of Warrants with respect
                                         to one or more Expiration Dates) if Dealer determines, in its commercially reasonable
                                         judgment, that such extension is reasonably necessary or appropriate to preserve commercially
                                         reasonable hedging or hedge unwind activity hereunder in light of existing liquidity
                                         conditions (but only if liquidity as of the relevant time is less than the Calculation
                                         Agent’s commercially reasonable expectations of liquidity at such time as of the
                                         Trade Date) or to enable a dealer to effect transactions with respect to Shares in connection
                                         with its commercially reasonable hedging, hedge unwind or settlement activity hereunder
                                         in a manner that would, if such dealer were Issuer or an affiliated purchaser of Issuer,
                                         be in compliance with applicable legal, regulatory or self-regulatory requirements, or
                                         with related policies and procedures applicable to Dealer; provided that such
                                         policies and procedures have been adopted by Dealer in good faith and are generally applicable
                                         in similar situations and applied in a non-discriminatory manner; provided further
                                         that no such Expiration Date or other date of valuation, payment or delivery may
                                         be postponed or added more than 80 Scheduled Trading Days after the original Expiration
                                         Date or other date of valuation, payment or delivery, as the case may be.



 


		(r)	Status
                                         of Claims in Bankruptcy. Dealer acknowledges and agrees that this Confirmation
                                         is not intended to convey to Dealer rights against Company with respect to the Transaction
                                         that are senior to the claims of common stockholders of Company in any United States
                                         bankruptcy proceedings of Company; provided that nothing herein shall limit or
                                         shall be deemed to limit Dealer’s right to pursue remedies in the event of a breach
                                         by Company of its obligations and agreements with respect to the Transaction; provided,
                                         further, that nothing herein shall limit or shall be deemed to limit Dealer’s
                                         rights in respect of any transactions other than the Transaction.



 


		(s)	Securities
                                         Contract; Swap Agreement. The parties hereto intend for (i) the Transaction to
                                         be a “securities contract” and a “swap agreement” as defined
                                         in the Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy
                                         Code”), and the parties hereto to be entitled to the protections afforded by,
                                         among other Sections, Sections 362(b)(6), 362(b)(17), 546(e), 546(g), 555 and 560 of
                                         the Bankruptcy Code, (ii) a party’s right to liquidate the Transaction and to exercise
                                         any other remedies upon the occurrence of any Event of Default under the Agreement with
                                         respect to the other party to constitute a “contractual right” as described
                                         in the Bankruptcy Code, and (iii) each payment and delivery of cash, securities or other
                                         property hereunder to constitute a “margin payment” or “settlement
                                         payment” and a “transfer” as defined in the Bankruptcy Code.



 






    	 	22	 



     


    

 


		(t)	Wall
                                         Street Transparency and Accountability Act. In connection with Section 739 of
                                         the Wall Street Transparency and Accountability Act of 2010 (“WSTAA”),
                                         the parties hereby agree that neither the enactment of WSTAA or any regulation under
                                         the WSTAA, nor any requirement under WSTAA or an amendment made by WSTAA, shall limit
                                         or otherwise impair either party’s otherwise applicable rights to terminate, renegotiate,
                                         modify, amend or supplement this Confirmation or the Agreement, as applicable, arising
                                         from a termination event, force majeure, illegality, increased costs, regulatory change
                                         or similar event under this Confirmation, the Equity Definitions incorporated herein,
                                         or the Agreement (including, but not limited to, rights arising from Change in Law, Hedging
                                         Disruption, Increased Cost of Hedging, an Excess Ownership Position, or Illegality (as
                                         defined in the Agreement)).



 


		(u)	Agreements
                                         and Acknowledgements Regarding Hedging. Company understands, acknowledges and
                                         agrees that: (A) at any time on and prior to the last Expiration Date, Dealer and its
                                         affiliates may buy or sell Shares or other securities or buy or sell options or futures
                                         contracts or enter into swaps or other derivative securities in order to adjust its hedge
                                         position with respect to the Transaction; (B) Dealer and its affiliates also may be active
                                         in the market for Shares other than in connection with hedging activities in relation
                                         to the Transaction; (C) Dealer shall make its own determination as to whether, when or
                                         in what manner any hedging or market activities in securities of Issuer shall be conducted
                                         and shall do so in a manner that it deems appropriate to hedge its price and market risk
                                         with respect to the Settlement Prices; and (D) any market activities of Dealer and its
                                         affiliates with respect to Shares may affect the market price and volatility of Shares,
                                         as well as the Settlement Prices, each in a manner that may be adverse to Company.



 


		(v)	Early
                                         Unwind. In the event the sale of the “Initial Securities” (as defined
                                         in the Purchase Agreement, dated as of January 17, 2018, among Company and Merrill Lynch,
                                         Pierce, Fenner & Smith Incorporated and Wells Fargo Securities, LLC, as representatives
                                         of the Initial Purchasers party thereto (the “Initial Purchasers”),
                                         is not consummated with the Initial Purchasers for any reason, or Company fails to deliver
                                         to Dealer opinions of counsel as required pursuant to Section 9(a), in each case by 5:00
                                         p.m. (New York City time) on the Premium Payment Date, or such later date as agreed upon
                                         by the parties (the Premium Payment Date or such later date the “Early Unwind
                                         Date”), the Transaction shall automatically terminate (the “Early
                                         Unwind”), on the Early Unwind Date and (i) the Transaction and all of the respective
                                         rights and obligations of Dealer and Company under the Transaction shall be cancelled
                                         and terminated and (ii) each party shall be released and discharged by the other party
                                         from and agrees not to make any claim against the other party with respect to any obligations
                                         or liabilities of the other party arising out of and to be performed in connection with
                                         the Transaction either prior to or after the Early Unwind Date. Each of Dealer and Company
                                         represents and acknowledges to the other that upon an Early Unwind, all obligations with
                                         respect to the Transaction shall be deemed fully and finally discharged.



 


		(w)	Payment
                                         by Dealer. In the event that (i) an Early Termination Date occurs or is designated
                                         with respect to the Transaction as a result of a Termination Event or an Event of Default
                                         (other than an Event of Default arising under Section 5(a)(ii) or 5(a)(iv) of the Agreement)
                                         and, as a result, Dealer owes to Company an amount calculated under Section 6(e) of the
                                         Agreement, or (ii) Dealer owes to Company, pursuant to Section 12.7 or Section 12.9 of
                                         the Equity Definitions, an amount calculated under Section 12.8 of the Equity Definitions,
                                         such amount shall be deemed to be zero.



 


		(x)	Listing
                                         of Warrant Shares. Company shall have submitted an application for the listing
                                         of the Warrant Shares on the Exchange, and such application and listing shall have been
                                         approved by the Exchange, subject only to official notice of issuance, in each case,
                                         on or prior to the Premium Payment Date. Company agrees and acknowledges that such submission
                                         and approval shall be a condition precedent for the purpose of Section 2(a)(iii) of the
                                         Agreement with respect to each obligation of Dealer under Section 2(a)(i) of the Agreement.



 






    	 	23	 



     


    

 


		(y)	Calculations;
                                         Determinations; Adjustments. All calculations, adjustments and determinations
                                         by the Calculation Agent, the Hedging Party or the Determining Party shall be made in
                                         good faith and in a commercially reasonable manner. Following any calculation, adjustment
                                         or determination by the Calculation Agent, the Hedging Party or the Determining Party,
                                         as the case may be, hereunder, upon written request by Company, the Calculation Agent,
                                         the Hedging Party or the Determining Party, as the case may be, shall promptly (but in
                                         any event within four Scheduled Trading Days) provide to Company by e-mail to the e-mail
                                         address provided by Company 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 calculation, adjustment or determination (including any assumptions used
                                         in making such adjustment, determination or calculation), it being understood that none
                                         of the Calculation Agent, the Hedging Party or the Determining Party shall be obligated
                                         to disclose any proprietary or confidential data or information or any proprietary or
                                         confidential models used by it for such calculation, adjustment or determination, as
                                         applicable. For the avoidance of doubt, whenever the Calculation Agent or the Determining
                                         Party (as the case may be) is called upon to make an adjustment pursuant to the terms
                                         of this Confirmation or the Equity Definitions to take into account the effect of an
                                         event, the Calculation Agent or Determining Party (as the case may be) shall make such
                                         adjustment by reference to the effect of such event on the Hedging Party, assuming that
                                         the Hedging Party maintains a commercially reasonable Hedge Position.



 


		(z)	Delivery
                                         or Receipt of Cash. For the avoidance of doubt, other than receipt of the Premium
                                         by Company, nothing in this Confirmation shall be interpreted as requiring Company to
                                         cash settle the Transaction, except in circumstances where cash settlement is within
                                         Company’s control (including, without limitation, where Company elects to deliver
                                         or receive cash, or where Company has made Private Placement Settlement unavailable due
                                         to the occurrence of events within its control) or in those circumstances in which holders
                                         of Shares would also receive cash.



 


		(aa)	Tax
                                         Matters.



 


		(i)	Withholding
                                         Tax Imposed on Payments to non-U.S. Counterparties under the United States Foreign Account
                                         Tax Compliance Act. “Indemnifiable Tax” as defined in Section 14 of the
                                         Agreement, shall not include any withholding tax imposed or collected pursuant to Sections
                                         1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”),
                                         any current or future regulations or official interpretations thereof, any agreement
                                         entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation,
                                         rules or practices adopted pursuant to any intergovernmental agreement entered into in
                                         connection with the implementation of such Sections of the Code (a “FATCA Withholding
                                         Tax”). For the avoidance of doubt, a FATCA Withholding Tax is a Tax the deduction
                                         or withholding of which is required by applicable law for the purposes of Section 2(d)
                                         of the Agreement.



 


		(ii)	Tax
                                         Documentation. For purposes of Section 4(a)(i) of the Agreement: (x) Company shall
                                         provide to Dealer a valid U.S. Internal Revenue Service Form W-9, or any successor thereto,
                                         (i) on or before the date of execution of this Confirmation, (ii) upon reasonable request
                                         of Dealer and (iii) promptly upon learning that any such tax form previously provided
                                         by Company has become obsolete or incorrect. Additionally, Company shall, promptly upon
                                         request by Dealer, provide such other tax forms and documents reasonably requested by
                                         Dealer; and (y) Dealer shall provide to Company a valid U.S. Internal Revenue Service
                                         Form W-9, or any successor thereto, (i) on or before the date of execution of this Confirmation,
                                         (ii) upon reasonable request of Company and (iii) promptly upon learning that any such
                                         tax form previously provided by Dealer has become obsolete or incorrect.



 


		(iii)	Tax
                                         Representations. For purposes of Section 3(f) of the Agreement: (i) Company represents
                                         to Dealer that for U.S. federal income tax purposes 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)
                                         and an “exempt recipient” (as that term is used in section 1.6049-4(c)(1)
                                         of the United States Treasury Regulations); and (ii) Dealer represents to Company that
                                         for U.S. federal income tax purposes 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) and
                                         an “exempt recipient” (as that term is used in section 1.6049-4(c)(1) of
                                         the United States Treasury Regulations).



 






    	 	24	 



     


    

 





Please
confirm that the foregoing correctly sets forth the terms of our agreement by executing this Confirmation and returning it to
Dealer.


 


	 	Very
truly yours,
	 	 
	 	BANK
    OF AMERICA, N.A.
	 	 
	 	By:	/s/
    Christopher A. Hutmaker
	 	Authorized
    Signatory
	 	Name:    Christopher
A. Hutmaker, Managing Director


 


Accepted
and confirmed

as of the Trade Date:


 


	PATRICK
    INDUSTRIES, INC.	 
	 	 
	By:	/s/
    Joshua Boone	 
	Authorized
    Signatory	 
	Name:	Joshua Boone