Exhibit 10.8


 





 


Bank of America, N.A.


One Bryant Park


New York, NY 10036




 


January 18, 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:	Additional 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
18, 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:	128,008. 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 67.95, 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 1,183,500



 


	 	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



 






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	 	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.



 


	 	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.



 






    3


     


    

 





Settlement Terms.



 





	 	Settlement Method:	Net Share Settlement.
	 	 	 
	 	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.





 






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	 	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.


 


		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”.


 






    5


     


    

 


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.
	 	 	 
	 	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



 






    8


     


    

 


	 	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.
	 	 	 
	 	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.


 


	 	(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.


 






    10


     


    

 


	 	(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.


 






    11


     


    

 


	 	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.


 


	 	(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.


 


	 	(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.


 






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	 	(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.


 


	 	(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.


 






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	 	(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


 


	 	(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.


 






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	 	(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.


 






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	 	(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.


 






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	 	(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)).


 





	 	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).



 






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	 	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.







 





	 	(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.


 






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	 	(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).


 






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	 	(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.


 






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	 	(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 and after taking into account any Shares deliverable to Dealer under the
letter agreement dated January 17, 2018 between Dealer and Company regarding Base Warrants (the “Base Warrant Confirmation”),
(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 and after
taking into account any Shares deliverable to Dealer under the Base Warrant Confirmation, (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 256,016 (the “Maximum Number of Shares”) to Dealer
    in connection with the Transaction.


 


	 	(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.


 






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	 	(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.


 


	 	(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)).


 






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	 	(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 “Option 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.


 


	 	(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.


 






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	 	(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).


 






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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