Exhibit 10.2


 


 


 


JPMorgan Chase Bank, National Association


New York Branch


383 Madison Avenue


New York, NY 10179


[__________], 2020


To: The Marcus Corporation


100 East Wisconsin Avenue, Suite 1900


Milwaukee, Wisconsin 53202-4125


	Attention:	[______]
	Telephone No.:	 [______]




 


Re: [Base][Additional] Call Option Transaction


 


The purpose of this
letter agreement (this “Confirmation”) is to confirm the terms and conditions of the call option transaction
entered into between JPMorgan Chase Bank, National Association, New York Branch (“Dealer”) and The Marcus Corporation
(“Counterparty”) as of the Trade Date specified below (the “Transaction”). This letter agreement
constitutes a “Confirmation” as referred to in the ISDA Master Agreement specified below. Each party further agrees
that this Confirmation together with the Agreement evidence a complete binding agreement between Counterparty 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. Certain defined terms used herein are based on terms that are defined in the Offering Memorandum dated [__________],
2020 (the “Offering Memorandum”) relating to the [_]% Convertible Senior Notes due 2025 (as originally
issued by Counterparty, the “Convertible Notes” and each USD 1,000 principal amount of Convertible Notes,
a “Convertible Note”) issued by Counterparty in an aggregate initial principal amount of USD [______] (as
increased by [up to]1 an
aggregate principal amount of USD [______] [if and to the extent that]2 [pursuant
to the exercise by]3 the Initial
Purchaser (as defined herein) [exercises]4[of]5 its
option to purchase additional Convertible Notes pursuant to the Purchase Agreement (as defined herein)) pursuant to an
Indenture [to be]6 dated
[__________], 2020 between Counterparty and U.S. Bank National Association, as trustee (the “Indenture”).
In the event of any inconsistency between the terms defined in the Offering Memorandum, the Indenture and this Confirmation,
this Confirmation shall govern. The parties acknowledge that this Confirmation is entered into on the date hereof with the
understanding that (i) definitions set forth in the Indenture which are also defined herein by reference to the Indenture and
(ii) sections of the Indenture that are referred to herein will conform to the descriptions thereof in the Offering
Memorandum. If any such definitions in the Indenture or any such sections of the Indenture differ from the descriptions
thereof in the Offering Memorandum, the descriptions thereof in the Offering Memorandum will govern for purposes of this
Confirmation. The parties further acknowledge that the Indenture section numbers used herein are based on the [draft of the
Indenture last reviewed by Dealer as of the date of this Confirmation, and if any such section numbers are changed in the
Indenture as executed, the parties will amend this Confirmation in good faith to preserve the intent of the parties]7[
Indenture as executed]8.
Subject to the foregoing, references to the Indenture herein are references to the Indenture as in effect on the date of its
execution, and if the Indenture is amended or supplemented following such date (other than any amendment or supplement (x)
pursuant to Section 10.01(l) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture or the
Convertible Notes to the “Description of notes” section of the Offering Memorandum or (y) pursuant to Section
14.07 of the Indenture, subject, in the case of this clause (y), to the second paragraph under “Method of
Adjustment” in Section 3), any such amendment or supplement will be disregarded for purposes of this Confirmation
(other than as provided in Section 9(i)(iii) below) unless the parties agree otherwise in writing.


 





 



1
Include in the Base Call Option Confirmation.


2
Include in the Base Call Option Confirmation.


3
Include in the Additional Call Option Confirmation.


4
Include in the Base Call Option Confirmation.


5
Include in the Additional Call Option Confirmation.


6
Insert if Indenture is not completed at the time of the Confirmation.


7
Include in the Base Call Option Confirmation. Include in the Additional Call Option Confirmation if it is executed before closing
of the base deal.


8
Include in the Additional Call Option Confirmation, but only if the Additional Call Option Confirmation is executed after closing
of the base deal.


 






     


     


    

 


Each party is hereby
advised, and each such party acknowledges, that the other party has engaged in, or refrained from engaging in, substantial financial
transactions and has taken other material actions in reliance upon the parties’ entry into the Transaction to which this
Confirmation relates on the terms and conditions set forth below.


 


1.                  
This Confirmation evidences a complete and binding agreement between Dealer and Counterparty as to the terms of the Transaction
to which this Confirmation relates. This Confirmation shall supplement, form a part of, and be subject to an agreement in the form
of the 2002 ISDA Master Agreement (the “Agreement”) as if Dealer and Counterparty had executed an agreement
in such form on the Trade Date (but without any Schedule except for (i) the election of the laws of the State of New York as the
governing law (without reference to choice of law doctrine), (ii) in respect of Section 5(a)(vi) of the Agreement, the election
that the “Cross Default” provisions shall apply to Dealer with (a) a “Threshold Amount” of three percent
of the shareholders’ equity of JPMorgan Chase & Co. as of the Trade Date, (b) the deletion of the phrase “, or
becoming capable at such time of being declared,” from clause (1) and (c) the following language added to the end thereof;
 “Notwithstanding the foregoing, a default under subsection (2) hereof shall not constitute an Event of Default if (x) the
default was caused solely by error or omission of an administrative or operational nature; (y) funds were available to enable the
party to make the payment when due; and (z) the payment is made within two Local Business Days of such party’s receipt of
written notice of its failure to pay.” and (iii) the term “Specified Indebtedness” shall have the meaning specified
in Section 14 of the Agreement, except that such term shall not include obligations in respect of deposits received in the ordinary
course of a party’s banking business). In the event of any inconsistency between provisions of the Agreement and this Confirmation,
this Confirmation will prevail for the purpose of the Transaction to which this Confirmation relates. The parties hereby agree
that no transaction other than the Transaction to which this Confirmation relates shall be governed by the Agreement.


 


2.                  
The terms of the particular Transaction to which this Confirmation relates are as follows:


 


General Terms.


 


	 	Trade Date:	[__________], 2020




 


	 	Effective Date:	The second Exchange Business Day immediately prior to the Premium Payment Date, subject to Section 9(v)




 


	 	Option Style:	“Modified American”, as described under “Procedures for Exercise” below




 


	 	Option Type:	Call




 


		Buyer:	Counterparty



 


		Seller:	Dealer



 


		Shares:	The common stock of Counterparty, par value USD 1.00 per share (Exchange symbol “MCS”).



 


	 	Number of Options:	[_______]9. For the avoidance of doubt,
    the Number of Options shall be reduced by any Options exercised by Counterparty. In no event will the Number of Options be
    less than zero.




 





 



9
For the Base Call Option Confirmation, this is equal to the number of Convertible Notes in principal amount of $1,000
initially issued on the closing date for the Convertible Notes. For the Additional Call Option Confirmation, this is equal to
the number of additional Convertible Notes in principal amount of $1,000.


 






    2


     


    

 


	 	Applicable
    Percentage:	[__]%
	 	 
	 	Option
    Entitlement:	A
    number equal to the product of the Applicable Percentage and [______]10.
	 	 
	 	Strike
    Price:	USD
    [______]
	 	 
	 	Cap
    Price:	USD
    [______]; provided that in no event shall the Cap Price be less than the Strike Price




 


		Premium:	USD [______]



 


	 	Premium Payment Date:	[__________], 2020




 


		Exchange:	The New York Stock Exchange



 


	 	Related Exchange(s):	 All Exchanges
	 	 
	 	Excluded Provisions:	Section 14.04(h) and Section 14.03 of the Indenture.




 


Procedures for Exercise.


 


		Conversion Date:	With respect to any conversion of a Convertible
Note (other than any conversion of Convertible Notes with a Conversion Date occurring prior to the Free Convertibility Date (any
such conversion, an “Early Conversion”), to which the provisions of Section 9(i)(i) of this Confirmation shall
apply), the date on which the Holder (as such term is defined in the Indenture) of such Convertible Note satisfies all of the
requirements for conversion thereof as set forth in Section 14.02(b) of the Indenture; provided that if Counterparty has
not delivered to Dealer a related Notice of Exercise, then in no event shall a Conversion Date be deemed to occur hereunder (and
no Option shall be exercised or deemed to be exercised hereunder) with respect to any surrender of a Convertible Note for conversion
in respect of which Counterparty has elected to designate a financial institution for exchange in lieu of conversion of such Convertible
Note pursuant to Section 14.12 of the Indenture.



 


	 	Free
    Convertibility Date:	March
    15, 2025
	 	 
	 	Expiration
    Time:	The
    Valuation Time
	 	 
	 	Expiration
    Date:	September
    15, 2025, subject to earlier exercise pursuant to the terms of this Confirmation.
	 	 
	 	Multiple
    Exercise:	Applicable,
    as described under “Automatic Exercise” below.




 





 



10
Insert the initial Conversion Rate for the Convertible Notes.


 






    3


     


    

 


		Automatic Exercise:	 Notwithstanding Section 3.4 of the Equity Definitions,
on each Conversion Date occurring on or after the Free Convertibility Date, in respect of which a Notice of Conversion that is
effective as to Counterparty has been delivered by the relevant converting Holder, a number of Options equal to [(i)] the principal
amount of Convertible Notes as to which such Conversion Date has occurred divided by USD 1,000 [minus (ii) the number
of Options that are or are deemed to be automatically exercised on such Conversion Date under the Base Call Option Transaction
Confirmation letter agreement dated [__________], 2020 between Dealer and Counterparty (the “Base Call Option Confirmation”),]11
shall be deemed to be automatically exercised; provided that such Options shall be exercised or deemed exercised
only if Counterparty has provided a Notice of Exercise to Dealer in accordance with “Notice of Exercise” below.



 


Notwithstanding
the foregoing, in no event shall the number of Options that are exercised or deemed exercised hereunder exceed the Number of Options.


 


		Notice of Exercise:	Notwithstanding anything to the contrary
in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options relating to Convertible
Notes with a Conversion Date occurring on or after the Free Convertibility Date, Counterparty must notify Dealer in writing before
5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the Expiration Date specifying the number of such
Options; provided that if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified
Dollar Amount (as defined below) is not USD 1,000, (y) Cash Settlement or (z) Combination Settlement, Dealer shall have received
a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before
5:00 p.m. (New York City time) on the Free Convertibility Date specifying (1) the Relevant Settlement Method for such Options,
and (2) if the settlement method for the related Convertible Notes is not Settlement in Shares or Settlement in Cash (each as
defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term
is defined in the Indenture) of the related Convertible Notes (the “Specified Dollar Amount”). Counterparty
acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange
Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect
to the Convertible Notes.



 


		Valuation Time:	At the close of trading of the regular trading session
on the Exchange; provided that if the principal trading session is extended, the Calculation Agent shall determine the
Valuation Time in its reasonable discretion.



 





 



11
Include for Additional Call Option Confirmation only.


 






    4


     


    

 


	 	Market Disruption Event:	Section 6.3(a) of the Equity Definitions is hereby replaced in its entirety by the following:




 


“‘Market
Disruption Event’ means, in respect of a Share, (i) a failure by the primary United States national or regional securities
exchange or market on which the Shares are listed or admitted for trading to open for trading during its regular trading session
or (ii) the occurrence or existence prior to 1:00 p.m. (New York City time) on any Scheduled Valid Day for the Shares for more
than one half-hour period in the aggregate during regular trading hours of any suspension or limitation imposed on trading (by
reason of movements in price exceeding limits permitted by the relevant stock exchange or otherwise) in the Shares or in any options
contracts or futures contracts relating to the Shares.”


 


Settlement Terms.


 


		Settlement Method:	For any Option, Net Share Settlement; provided
that if the Relevant Settlement Method set forth below for such Option is not Net Share Settlement, then the Settlement Method
for such Option shall be such Relevant Settlement Method, but only if Counterparty shall have notified Dealer of the Relevant
Settlement Method in the Notice of Final Settlement Method for such Option.



 


	 	Relevant Settlement Method:	In respect of any Option:




 


(i)       if
Counterparty has elected (or deemed elected with respect to clause (C) below) to settle its conversion obligations in respect of
the related Convertible Note (A) entirely in Shares pursuant to Section 14.02(a)(iv)(A) of the Indenture (together with cash in
lieu of fractional Shares) (such settlement method, “Settlement in Shares”), (B) in a combination of cash and
Shares pursuant to Section 14.02(a)(iv)(C) of the Indenture with a Specified Dollar Amount less than USD 1,000 (such settlement
method, “Low Cash Combination Settlement”) or (C) in a combination of cash and Shares pursuant to Section 14.02(a)(iv)(C)
of the Indenture with a Specified Dollar Amount equal to USD 1,000, then, in each case, the Relevant Settlement Method for
such Option shall be Net Share Settlement;


 


(ii)       if
Counterparty has elected to settle its conversion obligations in respect of the related Convertible Note in a combination of cash
and Shares pursuant to Section 14.02(a)(iv)(C) of the Indenture with a Specified Dollar Amount greater than USD 1,000, then the
Relevant Settlement Method for such Option shall be Combination Settlement; and


 






    5


     


    

 


(iii)       if
Counterparty has elected to settle its conversion obligations in respect of the related Convertible Note entirely in cash
pursuant to Section 14.02(a)(iv)(B) of the Indenture (such settlement method, “Settlement in Cash”), then
the Relevant Settlement Method for such Option shall be Cash Settlement.


 


		Net Share Settlement:	If Net Share Settlement is applicable
to any Option exercised or deemed exercised hereunder, Dealer will deliver to Counterparty, on the relevant Settlement Date for
each such Option, a number of Shares (the “Net Share Settlement Amount”) equal to the sum, for each Valid Day
during the Settlement Averaging Period for each such Option, of (i) (a) the Daily Option Value for such Valid Day, divided
by (b) the Relevant Price on such Valid Day, divided by (ii) the number of Valid Days in the Settlement Averaging Period;
provided that in no event shall the Net Share Settlement Amount for any Option exceed a number of Shares equal to the Applicable
Limit for such Option divided by the Applicable Limit Price on the Settlement Date for such Option.



 


Dealer will
pay cash in lieu of delivering any fractional Shares to be delivered with respect to any Net Share Settlement Amount valued at
the Relevant Price for the last Valid Day of the Settlement Averaging Period.


 


		Combination Settlement:	If Combination Settlement is applicable to
any Option exercised hereunder, Dealer will pay or deliver, as the case may be, to Counterparty, on the relevant Settlement Date
for each such Option:



 


		(i)	cash (the “Combination Settlement Cash Amount”) equal to the sum, for each Valid
Day during the Settlement Averaging Period for such Option, of (A) an amount (the “Daily Combination Settlement Cash Amount”)
equal to the lesser of (1) the product of (x) the Applicable Percentage and (y) the Specified Dollar Amount minus USD 1,000
and (2) the Daily Option Value, divided by (B) the number of Valid Days in the Settlement Averaging Period; provided
that if the calculation in clause (A) above results in zero or a negative number for any Valid Day, the Daily Combination Settlement
Cash Amount for such Valid Day shall be deemed to be zero; and



 


		(ii)	Shares (the “Combination Settlement Share Amount”) equal to the sum, for each
Valid Day during the Settlement Averaging Period for such Option, of a number of Shares for such Valid Day (the “Daily
Combination Settlement Share Amount”) equal to (A) (1) the Daily Option Value on such Valid Day minus the
Daily Combination Settlement Cash Amount for such Valid Day, divided by (2) the Relevant Price on such Valid Day, divided
by (B) the number of Valid Days in the Settlement Averaging Period;
provided that if the calculation in sub-clause (A)(1) above results in zero or a negative number for any Valid Day, the
Daily Combination Settlement Share Amount for such Valid Day shall be deemed to be zero;



 






    6


     


    

 


provided
that in no event shall the sum of (x) the Combination Settlement Cash Amount for any Option and (y) the Combination Settlement
Share Amount for such Option multiplied by the Applicable Limit Price on the Settlement Date for such Option, exceed the Applicable
Limit for such Option.


 


Dealer will
pay cash in lieu of delivering any fractional Shares to be delivered with respect to any Combination Settlement Share Amount valued
at the Relevant Price for the last Valid Day of the Settlement Averaging Period.


 


		Cash Settlement:	If Cash Settlement is applicable to any
Option exercised or deemed exercised hereunder, in lieu of Section 8.1 of the Equity Definitions, Dealer will pay to Counterparty,
on the relevant Settlement Date for each such Option, an amount of cash (the “Cash Settlement Amount”) equal
to the sum, for each Valid Day during the Settlement Averaging Period for such Option, of (i) the Daily Option Value for such
Valid Day, divided by (ii) the number of Valid Days in the Settlement Averaging Period.



 


		Daily Option Value:	For any Valid Day, an amount equal to
(i) the Option Entitlement on such Valid Day, multiplied by (ii) (A) the lesser of the Relevant Price on such Valid Day
and the Cap Price, less (B) the Strike Price on such Valid Day; provided that if the calculation contained in clause
(ii) above results in a negative number, the Daily Option Value for such Valid Day shall be deemed to be zero. In no event will
the Daily Option Value be less than zero.



 


		Applicable Limit:	 For any Option, an amount of cash equal to the
Applicable Percentage multiplied by the excess of (i) the aggregate of (A) the amount of cash, if any, paid to the Holder
of the related Convertible Note upon conversion of such Convertible Note and (B) the number of Shares, if any, delivered to the
Holder of the related Convertible Note upon conversion of such Convertible Note multiplied by the Applicable Limit Price
on the Settlement Date for such Option, over (ii) USD 1,000.



 


		Applicable Limit Price:	On any day, the opening price as displayed
under the heading “Op” on Bloomberg page MCS <equity> (or any successor thereto).



 






    7


     


    

 


		Valid Day:	A day on which (i) there is no Market Disruption
Event and (ii) trading in the Shares generally occurs on the Exchange or, if the Shares are not then listed on the Exchange, on
the principal other United States national or regional securities exchange on which the Shares
are then listed or, if the Shares are not then listed on a United States national or regional securities exchange, on the principal
other market on which the Shares are then listed or admitted for trading. If the Shares are not so listed or admitted for trading,
 “Valid Day” means a Business Day.



 


		Scheduled Valid Day:	A day that is scheduled to be a Valid Day on
the principal United States national or regional securities exchange or market on which the Shares are listed or admitted for
trading. If the Shares are not so listed or admitted for trading, “Scheduled Valid Day” means a Business Day.



 


		Business Day:	Any day other than a Saturday, a Sunday or a
day on which the Federal Reserve Bank of New York is authorized or required by law or executive order to close or be closed.



 


		Relevant Price:	On any Valid Day, the per Share volume-weighted
average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page MCS <equity> AQR (or its equivalent
successor if such page is not available) in respect of the period from the scheduled opening time of the Exchange to the Scheduled
Closing Time of the Exchange on such Valid Day (or if such volume-weighted average price is unavailable at such time, the market
value of one Share on such Valid Day, as determined by the Calculation Agent in a good faith commercially reasonable manner using,
if practicable, a volume-weighted average method. The Relevant Price will be determined without regard to after-hours trading
or any other trading outside of the regular trading session trading hours.



 


		Settlement Averaging Period:	For any Option, the 50 consecutive
Valid Days commencing on, and including, the 51st Scheduled Valid Day immediately prior to the Expiration Date; provided
that if the Notice of Final Settlement Method for such Option specifies that Settlement in Shares or Low Cash Combination
Settlement applies to the related Convertible Note, the Settlement Averaging Period shall be the 100 consecutive Valid Days commencing
on, and including, the 101st Scheduled Valid Day immediately prior to the Expiration Date.



 


		Settlement Date:	For any Option, the second Business Day immediately
following the final Valid Day of the Settlement Averaging Period for such Option.



 


		Settlement Currency:	USD



 


		Other Applicable Provisions: 	The provisions of Sections
9.1(c), 9.8, 9.9 and 9.11 of the Equity Definitions will be applicable, except that all references in such provisions to “Physically-settled”
shall be read as references to “Share Settled”. “Share Settled” in relation to any Option means that Net
Share Settlement or Combination Settlement is applicable to that Option.



 






    8


     


    

 


		Representation and Agreement:	Notwithstanding anything to the contrary
in the Equity Definitions (including, but not limited to, Section 9.11 thereof), the parties acknowledge that (i) any Shares delivered
to Counterparty shall be, upon delivery, subject to restrictions and limitations arising from Counterparty’s status as issuer
of the Shares under applicable securities laws, (ii) Dealer may deliver any Shares required to be delivered hereunder in certificated
form in lieu of delivery through the Clearance System and (iii) any Shares delivered to Counterparty may be “restricted
securities” (as defined in Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”)).



 


3.                  
Additional Terms applicable to the Transaction.


 


Adjustments applicable to the
Transaction:


 


		Potential Adjustment Events:	Notwithstanding Section 11.2(e)
of the Equity Definitions, a “Potential Adjustment Event” means an occurrence of any event or condition, as set forth
in any Dilution Adjustment Provision, that would result in an adjustment pursuant to the Indenture to the “Conversion Rate”
or the composition of a “unit of Reference Property” or to any “Last Reported Sale Price”, “Daily
VWAP,” “Daily Conversion Value” or “Daily Settlement Amount” (each as defined in the Indenture).
For the avoidance of doubt, Dealer shall not have any delivery or payment obligation hereunder, and no adjustment shall be made
to the terms of the Transaction, on account of (x) any distribution of cash, property or securities by Counterparty to holders
of the Convertible Notes (upon conversion or otherwise) or (y) any other transaction in which holders of the Convertible Notes
are entitled to participate, in each case, in lieu of an adjustment under the Indenture of the type referred to in the immediately
preceding sentence (including, without limitation, pursuant to the fourth sentence of the first paragraph of Section 14.04(c)
of the Indenture or the last sentence of Section 14.04(d) of the Indenture).



 


		Method of Adjustment:	Calculation Agent Adjustment, which
means that, notwithstanding Section 11.2(c) of the Equity Definitions, upon any Potential Adjustment Event, the Calculation Agent,
acting in good faith and in a commercially reasonable manner, shall make a corresponding adjustment to any one or more of the
Strike Price, Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment for
the Transaction.



 






    9


     


    

 


Notwithstanding
the foregoing and “Consequences of Merger Events / Tender Offers” below:


 


		(i)	if the Calculation Agent in good faith disagrees with any adjustment to the Convertible Notes that
involves an exercise of discretion by Counterparty or its board of directors (including, without limitation, pursuant to Section
14.05 of the Indenture, Section 14.07 of the Indenture or any supplemental indenture entered into thereunder or in connection with
any proportional adjustment or the determination of the fair value of any securities, property, rights or other assets), then in
each such case, the Calculation Agent will determine the adjustment to be made to any one or more of the Strike Price, Number of
Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction in a commercially
reasonable manner taking into account the relevant provisions of the Indenture; provided that, notwithstanding the foregoing,
if any Potential Adjustment Event occurs during the Settlement Averaging Period but no adjustment was made to any Convertible Note
under the Indenture because the relevant Holder (as such term is defined in the Indenture) was deemed to be a record owner of the
underlying Shares on the related Conversion Date, then the Calculation Agent shall make an adjustment, as determined by it, acting
in good faith and in a commercially reasonable manner, to the terms hereof in order to account for such Potential Adjustment Event;



 


		(ii)	in connection with any Potential Adjustment Event as a result of an event or condition set forth
in Section 14.04(b) of the Indenture or Section 14.04(c) of the Indenture where, in either case, the period for determining “Y”
(as such term is used in Section 14.04(b) of the Indenture) or “SP0” (as such term is used in Section 14.04(c)
of the Indenture), as the case may be, begins before Counterparty has publicly announced the event or condition giving rise to
such Potential Adjustment Event, then the Calculation Agent shall, in good faith and in a commercially reasonable manner, have
the right to adjust any variable relevant to the exercise, settlement or payment for the Transaction as appropriate to reflect
the costs (including, but not limited to, hedging mismatches and market losses) and expenses incurred by Dealer in connection with
its hedging activities, with such adjustments made assuming that Dealer maintains commercially reasonable hedge positions, as a
result of such event or condition not having been publicly announced prior to the beginning of such period; and



 






    10


     


    

 


		(iii)	if any Potential Adjustment Event is declared and (a) the event or condition giving rise to such
Potential Adjustment Event is subsequently amended, modified, cancelled or abandoned, (b) the “Conversion Rate”
(as defined in the Indenture) is otherwise not adjusted at the time or in the manner contemplated by the relevant Dilution Adjustment
Provision based on such declaration or (c) the “Conversion Rate” (as defined in the Indenture) is adjusted as a result
of such Potential Adjustment Event and subsequently re-adjusted (each of clauses (a), (b) and (c), a “Potential Adjustment
Event Change”) then, in each case, the Calculation Agent shall, in good faith and in a commercially reasonable manner,
have the right to adjust any variable relevant to the exercise, settlement or payment for the Transaction as appropriate to reflect
the costs (including, but not limited to, hedging mismatches and market losses) and expenses incurred by Dealer in connection with
its hedging activities, with such adjustments made assuming that Dealer maintains commercially reasonable hedge positions, as a
result of such Potential Adjustment Event Change.



 


		Dilution Adjustment Provisions:	Sections 14.04(a), (b), (c),
(d) and (e) and Section 14.05 of the Indenture.



 


Extraordinary Events applicable
to the Transaction:


 


		Merger Events:	Applicable; provided that notwithstanding
Section 12.1(b) of the Equity Definitions, a “Merger Event” means the occurrence of any event or condition set forth
in the definition of “Specified Corporate Event” in Section 14.07(a) of the Indenture.



 


		Tender Offers:	Applicable; provided that notwithstanding
Section 12.1(d) of the Equity Definitions, a “Tender Offer” means the occurrence of any event or condition set forth
in Section 14.04(e) of the Indenture.



 






    11


     


    

 



		Consequences of Merger Events/

                                                                          Tender Offers:
	Notwithstanding Section 12.2 and Section 12.3
of the Equity Definitions, upon the occurrence of a Merger Event or a Tender Offer, the Calculation Agent shall make a corresponding
adjustment in respect of any adjustment under the Indenture to any one or more of the nature of the Shares (in the case of a Merger
Event), Strike Price, Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment
for the Transaction, subject to the second paragraph under “Method of Adjustment”; provided, however,
that (i) such adjustment shall be made without regard to any adjustment to the Conversion Rate pursuant to any Excluded Provision
and (ii) in no event shall the Cap Price be less than the Strike Price; provided further that if, with respect to a Merger
Event or a Tender Offer, (i) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity
or person that is not a corporation or is not organized under the laws of the United States, any State thereof or the District
of Columbia or (ii) the Counterparty to the Transaction following such Merger Event or Tender Offer will not (A) be a corporation
organized under the laws of the United States, any State thereof or the District of Columbia or (B) be the Issuer and, in either
case, Dealer determines at any time following the occurrence of such Merger Event or Tender Offer that (x) such Merger Event or
Tender Offer has had or will have an adverse effect on Dealer’s rights and obligations under the Transaction or (y) Dealer
will incur or has incurred an increased (as compared with circumstances existing on the Trade Date) amount of tax, duty, expense
or fee to (1) acquire, establish, re-establish, substitute, maintain, unwind or dispose of any transaction(s) or asset(s) constituting
a commercially reasonable hedge position in respect of the economic risk of entering into and performing its obligations with respect
to the Transaction or (2) realize, recover or remit the proceeds of any transaction(s) or asset(s) constituting a commercially
reasonable hedge position in respect of the economic risk of entering into and performing its obligations with respect to the transaction,
then Dealer may elect in its commercially reasonable discretion that Cancellation and Payment (Calculation Agent Determination)
may apply; provided further, for the avoidance of doubt, adjustments shall be made pursuant to the provisions set forth
above regardless of whether any Merger Event or Tender Offer gives rise to an Early Conversion.



 


 


		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 phrase “exercise, settlement, payment
or any other terms of the Transaction (including, without limitation, the spread)” shall be replaced with the phrase “Cap
Price (provided that in no event shall the Cap Price be less than the Strike Price)”, and the words “whether within
a commercially reasonable (as determined by the Calculation Agent) period of time prior to or after the Announcement Event”
shall be inserted prior to the word “which” in the seventh line, and (z) for the avoidance of doubt, the Calculation
Agent may determine whether the relevant Announcement Event has had a material economic effect on the Transaction (and, if so,
shall adjust the Cap Price 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; provided that, in no event shall the Cap Price
be less than the Strike Price. An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions,
to which Article 12 of the Equity Definitions is applicable.



 






    12


     


    

 


		Announcement Event:	(i) The public announcement by (w) any entity
of any transaction or event that is reasonably likely to be completed (as determined by the Calculation Agent which may take 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, (x) Issuer, any affiliate of Issuer or any subsidiary of Issuer of any potential acquisition or
disposition by Issuer and/or its subsidiaries (other than to Issuer and/or any one or more of its subsidiaries) where the aggregate
consideration exceeds 25% of the market capitalization of Issuer as of the date of such announcement (an “Acquisition
Transaction”), (y) any entity of the intention to enter into a Merger Event or Tender Offer or (z) Issuer, any
affiliate of Issuer or any subsidiary of Issuer of the intention to enter into 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 may
include, a Merger Event or Tender Offer or an Acquisition Transaction or (iii) any subsequent public announcement by the relevant
entity making such previous announcement or Issuer 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 such party or Issuer, 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 in its commercially reasonable
judgment. 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,” (A) “Merger Event” shall mean such term as defined under Section 12.1(b)
of the Equity Definitions (but, for the avoidance of doubt, 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) and (B)
 “Tender Offer” shall mean such term as defined under Section 12.1(d) of the Equity Definitions but shall be amended
by replacing “10%” with “15%”.



 






    13


     


    

 


		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.



 


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 phrase “the interpretation” in the third line thereof
with the phrase “, or public announcement of, the formal or informal interpretation”, (ii) replacing the word “Shares”
where it appears in clause (X) thereof with the words “Hedge Position” and (iii) replacing the parenthetical beginning
after the word “regulation” in the second line thereof with 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)” and (iv) adding the words “provided that, in the case of clause (Y) hereof and any law,
regulation or interpretation, the consequences of such law, regulation or interpretation is applied equally by Dealer to all of
its similarly situated counterparties and/or similar transactions, if any;” after the semi-colon in the last line thereof.



 


		Failure to Deliver:	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:



 


“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”.



 






    14


     


    

 


	 	Increased Cost of Hedging:	Applicable




 


		Hedging Party:	For all applicable Additional Disruption Events,
Dealer. All calculations, adjustments and determinations by Dealer acting in its capacity as the Hedging Party shall be made in
good faith and in a commercially reasonable manner and assuming that Dealer maintains a commercially reasonable hedge position.



 


		Determining Party:	For all applicable Extraordinary Events, Dealer;
provided that, any determinations or calculations by the Determining Party shall be made in good faith and in a commercially
reasonable manner; provided further that, following any determination or calculation by the Determining Party hereunder,
upon a written request by Counterparty, the Determining Party shall promptly (but in any event within five Scheduled Trading Days)
provide to Counterparty by e-mail to the e-mail address provided by Counterparty in such request a report (in a commonly used
file form for the storage and manipulation of financial data) displaying in reasonable detail the basis for such determination
or calculation (including any quotations, market date or information from internal or external sources, and any assumptions used
in making such determination or calculation), it being understood that the Determining Party shall not be obligated to disclose
any proprietary or confidential models used by it for such determination or calculation or any information that may be proprietary
or confidential or subject to an obligation not to disclose such information.



 


		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 written notice to the Calculation Agent by Counterparty of such failure, Counterparty shall
have the right to designate a nationally recognized third-party dealer in over-the-counter corporate equity derivatives to
act, during the period commencing on the date such Event of Default occurred and ending on the Early Termination Date with
respect to such Event of Default (or, if earlier, the date on which such Event of Default is no longer continuing), as the
Calculation Agent. Following any determination or calculation by the Calculation Agent hereunder, upon a request by
Counterparty, the Calculation Agent shall promptly (but in any event within five Scheduled Trading Days) provide to
Counterparty by e-mail to the e-mail address provided by Counterparty in such request a report (in a commonly used file
format for the storage and manipulation of financial data) displaying in reasonable detail the basis for such determination
or calculation (including any quotations, market data or information from internal or external sources, and any assumptions
used in making such determination or calculation), it being understood that the Calculation Agent shall not be obligated to
disclose any proprietary or confidential models used by it for such determination or calculation or any information that may
be proprietary or confidential or subject to an obligation not to disclose such information.


 






    15


     


    

 


5.            
Account Details.


 


		(a)	Account for payments to Counterparty:



 


To be provided.


 


Account for delivery of Shares to Counterparty:


 


To be provided.


 


		(b)	Account for payments to Dealer:



 


	 	Bank:	[_____]
	 	ABA#: 	[_____]
	 	Acct No.:	 [_____]
	 	Beneficiary:	 [_____]
	 	Ref: 	[_____]




 


Account for delivery of Shares from Dealer:


[_____]


 


6.            
Offices.


 


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



 


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



 


JPMorgan Chase Bank, National Association


New York Branch


383 Madison Avenue


New York, NY 10179


 


7.            
Notices. 


 


		(a)	Address for notices or communications to Counterparty:



 


The Marcus Corporation


100 East Wisconsin Avenue,
Suite 1900


Milwaukee, Wisconsin 53202-4125


	 	Attention: 	[_____]
	 	Telephone No.: 	[_______]




 


 


		(b)	Address for notices or communications to Dealer:



 


	 	JPMorgan
    Chase Bank, National Association
	 	EDG
    Marketing Support
	 	Email:	 [_____]
	 	 	[_____]
	 	Facsimile No:	 [_____]




 






    16


     


    

 


	 	With
    a copy to:
	 	 
	 	Attention: 	[_____]
	 	Title:	 [_____]
	 	 
	 	Telephone No:	 [_____]
	 	Email:	[_____]




 


8.            
Representations and Warranties of Counterparty.


 


Each of the representations and
warranties of Counterparty set forth in Section 3 of the Purchase Agreement (the “Purchase Agreement”) dated
as of [__________], 2020, between Counterparty and J.P. Morgan Securities LLC, as representative of the Initial Purchasers party
thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as of
the date hereof and as of the Premium Payment Date as if set forth herein. Counterparty hereby further represents and warrants
to Dealer on the date hereof and on and as of the Premium Payment Date that:


 


		(a)	Counterparty 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 Counterparty’s part; and this Confirmation has been duly and validly executed and delivered by Counterparty
and constitutes its valid and binding obligation, enforceable against Counterparty 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 Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent
documents) of Counterparty, 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 to which Counterparty or any of its subsidiaries is a party or by which Counterparty
or any of its subsidiaries is bound 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 Counterparty 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)	Counterparty 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.



 


		(e)	Counterparty 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).



 


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



 


		(g)	To Counterparty’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, in each case,
other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic
issuers listed on the Exchange.



 






    17


     


    

 


		(h)	Counterparty (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 USD 50 million.



 


		(i)	(j)Counterparty acknowledges that the Transaction may constitute a purchase of its equity securities
or a capital distribution. Counterparty further acknowledges that, pursuant to the provisions of the Coronavirus Aid, Relief and
Economic Security Act (the “Cares Act”), Counterparty will be required to agree to certain time-bound restrictions
on its ability to purchase its equity securities or make capital distributions if it receives loans, loan guarantees or direct
loans (as that term is defined in the Cares Act) under section 4003(b) of the Cares Act. Counterparty further acknowledges that
it may be required to agree to certain time-bound restrictions on its ability to purchase its equity securities or make capital
distributions if it receives loans, loan guarantees or direct loans (as that term is defined in the Cares Act) under programs or
facilities established by the Board of Governors of the Federal Reserve System or the U.S. Department of Treasury for the purpose
of providing liquidity to the financial system, and may be required to agree to similar restrictions under programs or facilities
established in the future. Accordingly, Counterparty represents and warrants that it has not applied, and throughout the Term of
this Transaction shall not apply, for a loan, loan guarantee, direct loan (as that term is defined in the Cares Act) or other investment,
or to receive any financial assistance or relief (howsoever defined) under any program or facility that (a) is established under
applicable law (whether in existence as of the Trade Date or subsequently enacted, adopted or amended), including without limitation
the Cares Act and the Federal Reserve Act, as amended, and (b) requires under applicable law (or any regulation, guidance, interpretation
or other pronouncement thereunder), as a condition of such loan, loan guarantee, direct loan (as that term is defined in the Cares
Act), investment, financial assistance or relief, that the Counterparty agree, attest, certify or warrant that it has not, as of
the date specified in such condition, repurchased, or will not repurchase, any equity security of Counterparty, and that it has
not, as of the date specified in such condition, made a capital distribution or will not make a capital distribution. Counterparty
further represents and warrants that the Premium is not being paid, in whole or in part, directly or indirectly, with funds received
under or pursuant to any program or facility, including the U.S. Small Business Administration’s “Paycheck Protection
Program”, that (a) is established under applicable law (whether in existence as of the Trade Date or subsequently enacted,
adopted or amended), including without limitation the Cares Act and the Federal Reserve Act, as amended, and (b) requires under
such applicable law (or any regulation, guidance, interpretation or other pronouncement of a governmental authority with jurisdiction
for such program or facility) that such funds be used for specified or enumerated purposes that do not include the purchase of
this Transaction (either by specific reference to this Transaction or by general reference to transactions with the attributes
of this Transaction in all relevant respects).



 


		(j)	Counterparty represents and warrants that it has received, read and understands the OTC Options
Risk Disclosure Statement and a copy of the most recent disclosure pamphlet prepared by The Options Clearing Corporation entitled
 “Characteristics and Risks of Standardized Options”.



 


9.           
Other Provisions.


 


		(a)	Opinions. Counterparty 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 (c) of this Confirmation; 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.



 






    18


     


    

 


		(b)	Repurchase Notices.
                                         Counterparty shall, on any day on which Counterparty effects any repurchase of Shares,
                                         promptly give Dealer a written notice (which, for the avoidance of doubt, may be by email)
                                         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 [__]12
                                         million (in the case of the first such notice) or (ii) thereafter more than
                                         [__]13
                                         million less than the number of Shares included in the immediately preceding
                                         Repurchase Notice; provided that, with respect to any repurchase of Shares pursuant
                                         to a plan under Rule 10b5-1 under the Exchange Act (as defined below), Counterparty may
                                         elect to satisfy such requirement by promptly giving Dealer written notice of entry into
                                         such plan, the maximum number of Shares that may be purchased thereunder and the approximate
                                         dates or periods during which such repurchases may occur (with such maximum number of
                                         Shares deemed repurchased on the date of such notice for purposes of this Section 9(b)).
                                         For the avoidance of doubt, any “net settlement” of equity by Counterparty
                                         for the benefit of employees, directors or service providers to Counterparty for the
                                         purpose of paying the exercise price of equity awards or withholding taxes that does
                                         not result in a reduction of the total number of outstanding Shares shall not be deemed
                                         to be a repurchase of Shares. Counterparty 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
                                         and documented out-of-pocket expenses (including reasonable and documented attorney’s
                                         fees), joint or several, which an Indemnified Person may become subject to, in each case,
                                         as a result of Counterparty’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 and documented
                                         out-of-pocket 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 as a result of Counterparty’s failure to provide Dealer with a Repurchase
                                         Notice in accordance with this paragraph, such Indemnified Person shall promptly notify
                                         Counterparty in writing, and Counterparty, upon request of the Indemnified Person, shall
                                         retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified
                                         Person and any others Counterparty may designate in such proceeding and shall pay the
                                         reasonable and documented fees and expenses of such counsel related to such proceeding.
                                         Counterparty shall not be liable to the extent that the Indemnified Person fails to notify
                                         Counterparty within a commercially reasonable period of time after any action is commenced
                                         against it in respect of which indemnity may be sought hereunder. In addition, Counterparty
                                         shall not have liability for any settlement of any such proceeding contemplated by this
                                         paragraph that is effected without its written consent, but if settled with such consent
                                         or if there be a final judgment for the plaintiff, Counterparty agrees to indemnify any
                                         Indemnified Person from and against any loss or liability by reason of such settlement
                                         or judgment. Counterparty shall not, without the prior written consent of the Indemnified
                                         Person, effect any settlement of any such pending or threatened proceeding 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 Counterparty hereunder, 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 (b) 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.



 





 



12
Insert the number of Shares outstanding that would cause Dealer’s current position in the Shares underlying
the Transaction (including the number of Shares underlying any additional transaction if the greenshoe is exercised in full, and
any Shares under pre-existing call option transactions with Counterparty) to increase by 0.5%.


13
Insert the number of Shares that, if repurchased, would cause Dealer’s current position in the Shares underlying
the Transaction (including the number of Shares underlying any additional transaction if the greenshoe is exercised in full, and
any Shares under pre-existing call option transactions with Counterparty) to increase by a further 0.5% from the threshold for
the first Repurchase Notice.


 






    19


     


    

 


		(c)	Regulation M. Counterparty 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 Counterparty, other than a distribution meeting the requirements of the exception set forth in Rules 101(b)(10)
and 102(b)(7) of Regulation M. Counterparty shall not, until the second Scheduled Trading Day immediately following the Effective
Date, engage in any such distribution.



 


		(d)	No Manipulation. Counterparty 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 otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for the Shares) or otherwise
in violation of the Exchange Act.



 


		(e)	Transfer or Assignment.



 


		(i)	Counterparty shall have the right to transfer or assign its rights and obligations hereunder with
respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided
that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to
the following conditions:



 


		(A)	With respect to any Transfer Options, Counterparty shall not be released from its notice and indemnification
obligations pursuant to Section 9(b) or any obligations under Section 9(n) or 9(s) of this Confirmation;



 


		(B)	Any Transfer Options shall only be transferred or assigned to a third party that is a United States
person (as defined in the Internal Revenue Code of 1986, as amended);



 


		(C)	Such transfer or assignment shall be effected on terms, including any reasonable undertakings by
such third party (including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a
manner that, in the reasonable judgment of Dealer, will not expose Dealer to material risks under applicable securities laws) and
execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party
and Counterparty, as are requested and reasonably satisfactory to Dealer;



 


		(D)	Dealer will not, as a result of such transfer and assignment, be required to pay the transferee
on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than an amount that Dealer would have been required
to pay to Counterparty in the absence of such transfer and assignment;



 


		(E)	An Event of Default, Potential Event of Default or Termination Event will not occur as a result
of such transfer and assignment;



 


		(F)	Counterparty shall cause the transferee to make such Payee Tax Representations and to provide such
tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that results described in clauses (D)
and (E) will not occur upon or after such transfer and assignment; and



 





		(G)	Counterparty shall be responsible for all reasonable costs and expenses, including reasonable and
documented counsel fees, incurred by Dealer in connection with such transfer or assignment.


 






    20


     


    

 



 


		(ii)	Dealer may, without Counterparty’s consent, transfer or assign all or any part of its
                                                              rights or obligations under the Transaction (A) to any affiliate of Dealer (1) that has a long-term issuer rating that is
                                                              equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations
                                                              hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar
                                                              transactions, by Dealer or Dealer’s ultimate parent, or (B) to any other third party with a long-term issuer rating
                                                              equal to or better than the lesser of (1) the credit rating of Dealer at the time of the transfer and (2) A- by Standard and
                                                              Poor’s Rating Group, Inc. or its successor (“S&P”), or A3 by Moody’s Investor Service,
                                                              Inc. (“Moody’s”) or, if either S&P or Moody’s ceases to rate such debt, at least an
                                                              equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer; provided that,
                                                              under the applicable law effective on the date of such assignment, (1) Counterparty will not, as a result of such
                                                              transfer or assignment, receive from the transferee or assignee on any payment date an amount under Section 2(d)(i)(4)
                                                              of the Agreement that is less than the amount that Counterparty would have received from Dealer in the absence of such
                                                              transfer or assignment, unless such transferee or assignee agrees to indemnify Counterparty for any such amounts on terms and
                                                              conditions reasonably acceptable to Counterparty; and (2) such transfer or assignment does not cause a deemed exchange
                                                              for Counterparty of the transaction under Section 1001 of the Internal Revenue Code of 1986, as amended (the
                                                              “Code”). If at any time at which (A) the Section 16 Percentage exceeds 9.0%, (B) the Option 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 is unable after using its
                                                              commercially reasonable efforts to effect a transfer or assignment of Options 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 portion of the Transaction, 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 Options equal to the number of Options
                                                              underlying the Terminated Portion, (2) Counterparty 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(l) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this sentence as if Counterparty 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 “Option 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 Options and the Option Entitlement and
                                                              (2) the aggregate number of Shares underlying any other call option transaction sold by Dealer to Counterparty, 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 Counterparty 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
                                                              reasonably be expected to 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.



 






    21


     


    

 


		(iii)	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
Counterparty, Dealer may designate any of its affiliates to purchase, sell, receive or deliver such Shares or other securities,
or to 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 Counterparty solely to the extent
of any such performance.



 


		(f)	Staggered Settlement. If upon advice of counsel with respect to applicable legal
and regulatory requirements, including any requirements relating to Dealer’s commercially reasonable hedging activities hereunder,
Dealer reasonably determines that it would not be practicable or advisable to deliver, or to acquire Shares to deliver, any or
all of the Shares to be delivered by Dealer on any Settlement Date for the Transaction, Dealer may, by notice to Counterparty on
or prior to any Settlement Date (a “Nominal Settlement Date”), elect to deliver the Shares on two or more dates
(each, a “Staggered Settlement Date”) as follows:



 


		(i)	in such notice, Dealer will specify to Counterparty the related Staggered Settlement Dates (each
of which will be on or prior to such Nominal Settlement Date) and the number of Shares that it will deliver on each Staggered Settlement
Date;



 


		(ii)	the aggregate number of Shares that Dealer will deliver to Counterparty hereunder on all such Staggered
Settlement Dates will equal the number of Shares that Dealer would otherwise be required to deliver on such Nominal Settlement
Date; and



 


		(iii)	if the Net Share Settlement terms or the Combination Settlement terms set forth above were to apply
on the Nominal Settlement Date, then the Net Share Settlement terms or the Combination Settlement terms, as the case may be, will
apply on each Staggered Settlement Date, except that the Shares otherwise deliverable on such Nominal Settlement Date will be allocated
among such Staggered Settlement Dates as specified by Dealer in the notice referred to in clause (i) above.



 


		(g)	Communications with Employees of J.P. Morgan Securities LLC. If Counterparty interacts
with any employee of J.P. Morgan Securities LLC with respect to the Transaction, Counterparty is hereby notified that such employee
will act solely as an authorized representative of JPMorgan Chase Bank, N.A. (and not as a representative of J.P. Morgan Securities
LLC) in connection with the Transaction.



 



    22


     


    

 





		(h)	[Reserved.]



 


		(i)	Additional Termination Events.



 


		(i)	Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect
of which a Notice of Conversion (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered
by the relevant converting Holder (as such term is defined in the Indenture):



 


		(A)	Counterparty shall, within five Scheduled
Trading Days of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”)
to Dealer specifying (x) the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes,
the “Affected Convertible Notes”) and (y) the settlement date for the conversion of such Affected Convertible
Notes, and the giving of such Early Conversion Notice shall constitute an Additional Termination
Event as provided in this clause (i)[; provided that any “Early Conversion Notice” delivered to Dealer
pursuant to the Base Call Option Confirmation shall be deemed to be an Early Conversion Notice pursuant to this Confirmation and
the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]14;



 


		(B)	upon receipt of any such Early Conversion
Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier
than the settlement date for the conversion of the relevant Affected Convertible Note) with respect to the portion of the Transaction
corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number
of Affected Convertible Notes [minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation),
if any, that relate to such Affected Convertible Notes (and for the purposes of determining whether any Options under this
Confirmation or under the Base Call Option Confirmation will be among the Affected Number of Options hereunder or under, and as
defined in, the Base Call Option Confirmation, the Convertible Notes specified in such Early Conversion Notice shall be allocated
first to the Base Call Option Confirmation until all Options thereunder are exercised or terminated)]15
and (y) the Number of Options as of the Conversion Date for such Early Conversion;



 


		(C)	any payment hereunder with respect to such termination shall be calculated pursuant to Section
6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to
the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party
with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction;
provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable Percentage,
multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if
any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected
Convertible Note and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an
Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the Applicable Limit Price, minus
(y) USD 1,000;



 





 






14
Include in Additional Call Option Confirmation only.


15
Include in Additional Call Option Confirmation only.



 






    23


     


    

 








		(D)	for the avoidance of doubt, in determining the amount payable
in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the
relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of
Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded
Provision and (z) the corresponding Convertible Notes remain outstanding; and



 


		(E)	the Transaction shall remain in full force and effect, except that, as of the Conversion Date for
such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options.



 


		(ii)	Notwithstanding anything to the contrary in this Confirmation,
if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01
of the Indenture, then such event of default that has resulted in the Convertible Notes becoming due and payable under the terms
thereof shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination
Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction
and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement.



 


		(iii)	Notwithstanding anything to the contrary in this Confirmation,
the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with
respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction
shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant
to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements,
waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon,
maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to
the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term
that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other
than, in each case, any amendment or supplement (x) pursuant to Section 10.01(l) of the Indenture that, as determined by the Calculation
Agent, conforms the Indenture or the Convertible Notes to the “Description of notes” section of the Offering Memorandum
or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer.



 






    24


     


    

 


		(iv)	Within 15 Scheduled Trading Days following any Repayment
Event (as defined below), Counterparty may notify Dealer of such Repayment Event and the aggregate principal amount of Convertible
Notes subject to such Repayment Event or the portion of such aggregate principal amount that Counterparty elects to be subject
to such Repayment Event (any such notice, a “Repayment Notice”)[; provided that any “Repayment
Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be a Repayment Notice pursuant
to this Confirmation and the terms of such Repayment Notice shall apply, mutatis mutandis, to this Confirmation]16.
Such Repayment Notice shall contain the representation by Counterparty to Dealer that Counterparty is not, on the date thereof,
in possession of any material non-public information with respect to Counterparty or the Shares. The receipt by Dealer from Counterparty
of any Repayment Notice shall constitute an Additional Termination Event as provided in this Section 9(i)(iv). Upon receipt of
any such Repayment Notice, Dealer shall designate an Exchange Business Day following receipt of such Repayment Notice as an Early
Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “Repayment
Options”) equal to the lesser of (A)[(x)]17 the
aggregate principal amount of such Convertible Notes specified in such Repayment Notice, divided by USD 1,000, [minus
(y) the number of “Repayment Options” (as defined in the Base Call Option Confirmation), if any, that relate to
such Convertible Notes (and for the purposes of determining whether any Options under this Confirmation or under the Base Call
Option Confirmation will be among the Repayment Options hereunder or under, and as defined in, the Base Call Option Confirmation,
the Convertible Notes specified in such Repayment Notice shall be allocated first to the Base Call Option Confirmation until all
Options thereunder are exercised or terminated)]18
and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date,
the Number of Options shall be reduced by the number of Repayment Options. Any payment hereunder with respect to such termination
(the “Repayment Unwind Payment”) shall be calculated 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 Options equal to the number of Repayment Options, (2) Counterparty were the sole Affected Party with respect to such Additional
Termination Event and (3) the terminated portion of the Transaction were the sole Affected Transaction. “Repayment
Event” means that (i) any Convertible Notes are repurchased (whether in connection with or as a result of a fundamental
change, howsoever defined, or for any other reason) by Counterparty or any of its subsidiaries, (ii) any Convertible Notes are
delivered to Counterparty or any of its subsidiaries in exchange for delivery of any property or assets of such party (howsoever
described), (iii) any principal of any of the Convertible Notes is repaid prior to the final maturity date of the Convertible
Notes (for any reason other than as a result of an acceleration of the Convertible Notes that results in an Additional Termination
Event pursuant to Section 9(j)(ii)), or (iv) any Convertible Notes are exchanged by or for the benefit of the “Holders”
(as defined in the Indenture) thereof for any other securities of Counterparty or any of its subsidiaries (or any other property,
or any combination thereof) pursuant to any exchange offer or similar transaction. For the avoidance of doubt, any conversion
of Convertible Notes (whether into cash, Shares, “Reference Property” (as defined in the Indenture) or any combination
thereof) pursuant to the terms of the Indenture shall not constitute a Repayment Event.



 


		(j)	Amendments to Equity Definitions.



 


		(i)	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 words “a material”
and adding the phrase “or the Options” at the end of the sentence.



		 	 



		(ii)	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”.



		 	 



		(iii)	Section 12.9(b)(i) of the Equity Definitions is hereby
amended by (1) replacing “either party may elect” with “Dealer may elect” and (2) replacing “notice
to the other party” with “notice to Counterparty” in the first sentence of such section.



		 	 



		(iv)	Section 12.9(b)(vi) of the Equity Definitions is hereby
amended by (1) adding the word “or” immediately before subsection “(B)”, (2) deleting the comma at the
end of subsection (A), (3) deleting subsection (C) in its entirety, (4) deleting the word “or” immediately preceding
subsection (C) and (5) replacing the words “either party” in the last sentence of such Section with “Dealer”.



 





 






16 Include in Additional
Call Option Confirmation only.


17 Include in Additional Call
Option Confirmation only.


18 Include in Additional Call
Option Confirmation only.


 






    25


     


    

 


		(k)	Setoff. In addition to and without limiting any rights of set-off that a party hereto
may have as a matter of law, pursuant to contract or otherwise, upon the occurrence of an Early Termination Date, Dealer (and only
Dealer) shall have the right to set off any obligation that it may have to Counterparty under this Confirmation, including without
limitation any obligation to make any payment of cash or delivery of Shares to Counterparty, against any obligation Counterparty
may have to Dealer under any other agreement between Dealer and Counterparty relating to Shares (each such contract or agreement,
a “Separate Agreement”), including without limitation any obligation to make a payment of cash or a delivery
of Shares or any other property or securities. For this purpose, Dealer shall be entitled to convert any obligation (or the relevant
portion of such obligation) denominated in one currency into another currency at the rate of exchange at which it would be able
to purchase the relevant amount of such currency, and to convert any obligation to deliver any non-cash property into an obligation
to deliver cash in an amount calculated by reference to the market value of such property as of the Early Termination Date, as
determined by the Calculation Agent in its sole discretion; provided that in the case of a set-off of any obligation to
release or deliver assets against any right to receive fungible assets, such obligation and right shall be set off in kind and;
provided further that in determining the value of any obligation to deliver Shares, the value at any time of such obligation
shall be determined by reference to the market value of the Shares at such time, as determined reasonably and in good faith by
the Calculation Agent. If an obligation is unascertained at the time of any such set-off, the Calculation Agent may reasonably
and in good faith estimate the amount or value of such obligation, in which case set-off will be effected in respect of that estimate,
and the relevant party shall account to the other party at the time such obligation or right is ascertained. For the avoidance
of doubt and notwithstanding anything to the contrary provided in this Section 9(k), in the event of bankruptcy or liquidation
of either Counterparty or Dealer neither party shall have the right to set off any obligation that it may have to the other party
under the Transaction against any obligation such other party may have to it, whether arising under the Agreement, this Confirmation
or any other agreement between the parties hereto, by operation of law or otherwise. For the avoidance of doubt, the parties acknowledge
that the obligations of Counterparty and Dealer under this Confirmation are not secured by any collateral that would otherwise
secure the obligations of Counterparty or Dealer hereunder or pursuant to any other agreement.



 


		(l)	Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events.
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) an Announcement Event, Merger Event or Tender Offer that is within Counterparty’s control, or (iii)
an Event of Default in which Counterparty is the Defaulting Party or a Termination Event in which Counterparty 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 Counterparty’s control), and if Dealer would owe any amount to Counterparty 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 Dealer shall satisfy the Payment Obligation by the Share Termination Alternative (as defined below), unless (a) Counterparty
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 date of the Announcement Event, 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) Counterparty remakes the representation set forth in Section 8(f) as of
the date of such election and (c) Dealer agrees, in its commercially reasonable 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.



 



    26


     


    

 










	 	Share Termination Alternative:	If applicable, Dealer shall deliver to Counterparty the Share Termination Delivery Property on, or within a commercially reasonable
period of time after, the date when the relevant Payment Obligation would otherwise be due pursuant to Section 12.7 or 12.9 of
the Equity Definitions or Section 6(d)(ii) and 6(e) of the Agreement, as applicable, in satisfaction of such Payment Obligation
in the manner reasonably requested by Counterparty free of payment.




 


	 	Share Termination Delivery Property:	A number of Share Termination Delivery Units, as calculated by the Calculation Agent, equal to the Payment Obligation divided
by the Share Termination Unit Price. The Calculation Agent shall adjust the 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.




 


	 	Share Termination Unit Price:	The value to Dealer of property contained in one Share Termination Delivery Unit, as determined by the Calculation Agent in its
discretion by commercially reasonable means and notified by the Calculation Agent to Dealer at the time of notification of the
Payment Obligation. For the avoidance of doubt, the parties agree that in determining the Share Termination Delivery Unit Price
the Calculation Agent may consider the purchase price paid in connection with the purchase of Share Termination Delivery Property.




 


	 	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 such 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, as determined by the Calculation Agent.




 


	 	Failure to Deliver:	 Applicable




 


	 	Other applicable provisions:	If Share Termination Alternative is applicable, the provisions of Sections 9.8, 9.9 and 9.11 (as modified above) of the Equity
Definitions and the provisions set forth opposite the caption “Representation and Agreement” in Section 2 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 Share Termination Alternative
is applicable to the Transaction.




 






    27


     


    

 


		(m)	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 either 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.



 


		(n)	Registration. Counterparty hereby agrees that if, in the good faith reasonable judgment
of Dealer based on advice of counsel, the Shares (“Hedge Shares”) acquired by Dealer for the purpose of effecting
a commercially reasonable hedge of its obligations pursuant to the Transaction cannot be sold in the public market by Dealer without
registration under the Securities Act, Counterparty shall, at its election, either (i) in order to allow Dealer to sell the Hedge
Shares in a registered offering, make available to Dealer an effective registration statement under the Securities Act and enter
into an agreement, in form and substance reasonably satisfactory to Dealer, substantially in the form of an underwriting agreement
customary for a registered secondary offering of similar size and in a similar industry; provided, however, that if Dealer,
in its sole reasonable discretion, is not satisfied with access to due diligence materials, the results of its due diligence investigation,
or the procedures and documentation for the registered offering referred to above, then clause (ii) or clause (iii) of this paragraph
shall apply at the election of Counterparty, (ii) in order to allow Dealer to sell the Hedge Shares in a private placement, enter
into a private placement agreement substantially similar to private placement purchase agreements customary for private placements
of equity securities of similar size and in a similar industry, in form and substance reasonably satisfactory to Dealer (in which
case, the Calculation Agent shall make any adjustments to the terms of the Transaction that are necessary, in its reasonable judgment,
to compensate Dealer for any discount from the public market price of the Shares incurred on the sale of Hedge Shares in a private
placement of similar size), provided that no “comfort letter” or “accountants’ consent” shall
be required to be delivered in connection with any private placements, or (iii) purchase the Hedge Shares from Dealer at the then-current
market price on such Exchange Business Days, and in the amounts and at such time(s), requested by Dealer.



 


		(o)	Tax Disclosure. Effective from the date of commencement of discussions concerning
the Transaction, Counterparty 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 Counterparty relating to such tax treatment and tax structure.



 


		(p)	Right to Extend. Dealer may postpone or add, in whole or in part, any Valid Day or
Valid Days during the Settlement Averaging Period or any other date of valuation, payment or delivery by Dealer, with respect to
some or all of the Options hereunder, if Dealer reasonably determines, in its commercially reasonable judgment (in the case of
clause (i) below) or based on the advice of counsel (in the case of clause (ii) below), that such action is reasonably necessary
or appropriate (i) to preserve Dealer’s commercially reasonable hedging or hedge unwind activity hereunder in light of existing
liquidity conditions (but only if there is a material decrease in liquidity relative to Dealer’s expectations on the Trade
Date) or (ii) to enable 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 Dealer were Counterparty or an affiliated purchaser of Counterparty, 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 date of valuation, payment or delivery may be postponed or added more than 50 Valid Days after
the original date of valuation, payment or delivery, as the case may be.



 






    28


     


    




 


		(q)	Status of Claims in Bankruptcy. Dealer acknowledges and agrees that this Confirmation
is not intended to convey to Dealer rights against Counterparty with respect to the Transaction that are senior to the claims of
common stockholders of Counterparty in any United States bankruptcy proceedings of Counterparty; 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 Counterparty 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.



 


		(r)	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, 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.



 


		(s)	Notice of Certain Other Events. Counterparty covenants and agrees that:



 


		(i)	as promptly as reasonably practicable following the public announcement of the results of any election
by the holders of Shares with respect to the consideration due upon consummation of any Merger Event, Counterparty shall give Dealer
written notice of the weighted average of the types and amounts of consideration received by holders of Shares upon consummation
of such Merger Event (the date of such notification, the “Consideration Notification Date”); provided
that in no event shall the Consideration Notification Date be later than the date on which such Merger Event is consummated; and



 


		(ii)	(A) Counterparty shall give Dealer commercially reasonable advance (but in no event less than one
Exchange Business Day) written notice of the section or sections of the Indenture and, if applicable, the formula therein, pursuant
to which any adjustment will be made to the Convertible Notes in connection with any Potential Adjustment Event, Merger Event or
Tender Offer and (B) promptly following any such adjustment, Counterparty shall give Dealer written notice of the details of such
adjustment.



 


		(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)).



 






    29


     


    

 


		(u)	Agreements and Acknowledgements Regarding Hedging. Counterparty understands, acknowledges
and agrees that: (A) at any time on and prior to the 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 Relevant 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 Relevant
Prices, each in a manner that may be adverse to Counterparty.



 


		(v)	Early Unwind. In the event the sale of the [“Underwritten
                                                               Securities”]19 [“Option
                                                               Securities”]20 (as
                                                               defined in the Purchase Agreement) is not consummated with the Initial Purchaser for any reason, or Counterparty 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 Counterparty 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 Counterparty 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 Counterparty. In the event that, following payment of the Premium, (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, Counterparty
owes to Dealer an amount calculated under Section 6(e) of the Agreement, or (ii) Counterparty owes to Dealer, 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)	Other Adjustments Pursuant to the Equity Definitions. Notwithstanding anything to
the contrary in the Agreement, the Equity Definitions or this Confirmation, upon the occurrence of a Merger Date, the occurrence
of a Tender Offer Date, or declaration by Counterparty of the terms of any Potential Adjustment Event, the Calculation Agent shall
determine whether such occurrence or declaration, as applicable, has had a material economic effect on the Transaction and, if
so, shall adjust the Cap Price as the Calculation Agent reasonably determines appropriate to account for the economic effect on
the Transaction of such occurrence or declaration, as applicable (provided that in no event shall the Cap Price be less
than the Strike Price). Solely for purposes of this Section 9(x) (x) the terms “Potential Adjustment Event,” “Merger
Event,” and “Tender Offer” shall each have the meanings assigned to each such term in the Equity Definitions
(in the case of the definition of “Potential Adjustment Event”, as amended by Section 9(j)(i), and in the case of the
definition of “Tender Offer”, as if all references to “voting shares” in Sections 12.1(d), 12.1(e) and
12.1(l) of the Equity Definitions were instead references to “Shares”) and (y) “Extraordinary Dividend”
means any cash dividend on the Shares.



  


 






 19
Insert for Base Call Option Confirmation.


20 Insert for Additional Call
Option Confirmation.


 



    30


     


    

 





		(y)	U.S. Resolution Stay Protocol.
                                         The parties acknowledge and agree that (i) to the extent that prior to the date hereof
                                         both parties have adhered to the 2018 ISDA U.S. Resolution Stay Protocol (the “Protocol”),
                                         the terms of the Protocol are incorporated into and form a part of the Agreement, and
                                         for such purposes the Agreement shall be deemed a Protocol Covered Agreement, the J.P.
                                         Morgan entity that is a party to the Agreement (“J.P. Morgan”) shall
                                         be deemed a Regulated Entity and the other entity that is a party to the Agreement (“Counterparty”)
                                         shall be deemed an Adhering Party; (ii) to the extent that prior to the date hereof the
                                         parties have executed a separate agreement the effect of which is to amend the qualified
                                         financial contracts between them to conform with the requirements of the QFC Stay Rules
                                         (the “Bilateral Agreement”), the terms of the Bilateral Agreement
                                         are incorporated into and form a part of the Agreement, and for such purposes the Agreement
                                         shall be deemed a Covered Agreement, J.P. Morgan shall be deemed a Covered Entity and
                                         Counterparty shall be deemed a Counterparty Entity; or (iii) if clause (i) and clause
                                         (ii) do not apply, the terms of Section 1 and Section 2 and the related defined terms
                                         (together, the “Bilateral Terms”) of the form of bilateral template
                                         entitled “Full-Length Omnibus (for use between U.S. G-SIBs and Corporate Groups)”
                                         published by ISDA on November 2, 2018 (currently available on the 2018 ISDA U.S. Resolution
                                         Stay Protocol page at www.isda.org and, a copy of which is available upon request),
                                         the effect of which is to amend the qualified financial contracts between the parties
                                         thereto to conform with the requirements of the QFC Stay Rules, are hereby incorporated
                                         into and form a part of the Agreement, and for such purposes the Agreement shall be deemed
                                         a “Covered Agreement,” J.P. Morgan shall be deemed a “Covered Entity”
                                         and Counterparty shall be deemed a “Counterparty Entity.” In the event that,
                                         after the date of the Agreement, both parties hereto become adhering parties to the Protocol,
                                         the terms of the Protocol will replace the terms of this paragraph. In the event of any
                                         inconsistencies between the Agreement and the terms of the Protocol, the Bilateral Agreement
                                         or the Bilateral Terms (each, the “QFC Stay Terms”), as applicable,
                                         the QFC Stay Terms will govern. Terms used in this paragraph without definition shall
                                         have the meanings assigned to them under the QFC Stay Rules. For purposes of this paragraph,
                                         references to “the Agreement” include any related credit enhancements entered
                                         into between the parties or provided by one to the other. In addition, the parties agree
                                         that the terms of this paragraph shall be incorporated into any related covered affiliate
                                         credit enhancements, with all references to J.P. Morgan replaced by references to the
                                         covered affiliate support provider. “QFC Stay Rules” means the regulations
                                         codified at 12 C.F.R. 252.2, 252.81–8, 12 C.F.R. 382.1-7 and 12 C.F.R. 47.1-8,
                                         which, subject to limited exceptions, require an express recognition of the stay-and-transfer
                                         powers of the FDIC under the Federal Deposit Insurance Act and the Orderly Liquidation
                                         Authority under Title II of the Dodd Frank Wall Street Reform and Consumer Protection
                                         Act and the override of default rights related directly or indirectly to the entry of
                                         an affiliate into certain insolvency proceedings and any restrictions on the transfer
                                         of any covered affiliate credit enhancements.



 





		(z)	On and immediately after the Trade Date and the Premium Payment Date, (A) the Counterparty is able
to pay its debts as they become due in the usual course of business and the value of the total assets of Counterparty is not less
than the sum of its total liabilities plus any liquidation preferences (as described in Section 180.0640 of the Wisconsin Business
Corporation Law) of Counterparty, (B) the capital of Counterparty is adequate to conduct the business of Counterparty, and Counterparty’s
entry into the Transaction will not impair its capital, (C) Counterparty has the ability to pay its debts and obligations as such
debts mature and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature,
(D) Counterparty will be able to continue as a going concern; (E) Counterparty is not “insolvent” (as such term is
defined under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”))
and (F) Counterparty would be able to purchase the number of Shares with respect to the Transaction in compliance with the laws
of the jurisdiction of Counterparty’s incorporation (including the requirements that Counterparty be able to pay its debts
as they become due in the usual course of business and the that Counterparty’s total assets being not less than its liabilities
plus any liquidation preferences, under Section 180.0640 of the Wisconsin Business Corporation Law).



 


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



 



    31


     


    




 


 


 


Please confirm that
the foregoing correctly sets forth the terms of our agreement by executing this Confirmation and returning it to J.P. Morgan Securities
LLC, 383 Madison Ave, New York, NY 10179, and by email to EDG_Notices@jpmorgan.com and edg.us.flow.corporates.mo@jpmorgan.com.


 


Very truly yours,


 


	 	JPMorgan Chase Bank, National Association
	 	 
	 	By:	         
	 	Authorized Signatory
	 	Name: 


 


Accepted and confirmed

as of the Trade Date:


 


	The Marcus Corporation	 
	 	 
	By:	       	 
	Authorized Signatory	 
	Name:	 


 


[Signature Page to [Base] [Additional] Capped Call Confirmation]