Confirmation regarding issuer warrant transaction dated 6/9/2010



 Exhibit 10.3 

GOLDMAN, SACHS & CO. | 200 WEST STREET | NEW YORK, NEW YORK 10282-2198 | TEL: 212-902-1000 

Opening Transaction 
  

			
	To:	  	 National Financial Partners Corp.

340 Madison Avenue, 20th Floor
 New York, New
York 10173

		
	A/C:	  	00673131
		
	From:	  	Goldman, Sachs & Co.
		
	Re:	  	Base Issuer Warrant Transaction
		
	Ref. No:	  	SDB1631832885
		
	Date:	  	June 9, 2010

  

 
 Ladies and Gentlemen: 

The purpose of this communication (this “Confirmation”) is to set forth the terms and conditions of the above-referenced
transaction entered into on the Trade Date specified below (the “Transaction”) between Goldman, Sachs & Co. (“Dealer”) and National Financial Partners Corp. (“Issuer”). This
communication constitutes a “Confirmation” as referred to in the ISDA Master Agreement specified below. 
 1. This
Confirmation is subject to, and incorporates, the definitions and provisions of the 2006 ISDA Definitions (the “2006 Definitions”) and the definitions and provisions of the 2002 ISDA Equity Derivatives Definitions (the
“Equity Definitions”, and together with the 2006 Definitions, the “Definitions”), in each case as published by the International Swaps and Derivatives Association, Inc. (“ISDA”). In the event of any
inconsistency between the 2006 Definitions and the Equity Definitions, the Equity Definitions will govern. For purposes of the Equity Definitions, each reference herein to a Warrant shall be deemed to be a reference to a Call Option or an Option, as
context requires. 
 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.

 This Confirmation evidences a complete and binding agreement between Dealer and Issuer as to the terms of the Transaction to
which this Confirmation relates. This Confirmation shall be subject to an agreement (the “Agreement”) in the form of the 1992 ISDA Master Agreement (Multicurrency—Cross Border) as if Dealer and Issuer had executed an agreement
in such form on the date hereof (but without any Schedule except for (i) the election of Loss and Second Method and US Dollars (“USD”) as the Termination Currency, (ii) the replacement of the word “third” in the
last line of Section 5(a)(i) of the Agreement with the word “first” and (iii) the election that the “Cross Default” provisions of Section 5(a)(vi) of the Agreement shall apply to Issuer with the words “, or
becoming capable at such time of being declared,” deleted from clause (1) of Section 5(a)(vi), with a “Threshold Amount” of USD 10 million. In addition, Section 5(a)(i) of the Agreement shall be amended by adding at the
end of such section the following: “Notwithstanding the foregoing, a default under this Section 5(a)(i) 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,”.








 All provisions contained in, or incorporated by reference to, the Agreement will govern this
Confirmation except as expressly modified herein. In the event of any inconsistency between this Confirmation and either the Definitions or the Agreement, this Confirmation shall govern. 

The Transaction hereunder shall be the sole Transaction under the Agreement. If there exists any ISDA Master Agreement between Dealer and
Issuer or any confirmation or other agreement between Dealer and Issuer pursuant to which an ISDA Master Agreement is deemed to exist between Dealer and Issuer, then notwithstanding anything to the contrary in such ISDA Master Agreement, such
confirmation or agreement or any other agreement to which Dealer and Issuer are parties, the Transaction shall not be considered a Transaction under, or otherwise governed by, such existing or deemed ISDA Master Agreement. 

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

 

			
	Trade Date:	  	June 9, 2010
		
	Effective Date:	  	June 15, 2010 or such other date as agreed between the parties, subject to Section 8(k) below
		
	Components:	  	The Transaction will be divided into individual Components, each with the terms set forth in this Confirmation, and, in particular, with the Number of Warrants and Expiration
Date set forth in this Confirmation. The payments and deliveries to be made upon settlement of the Transaction will be determined separately for each Component as if each Component were a separate Transaction under the Agreement.
		
	Warrant Style:	  	European
		
	Warrant Type:	  	Call
		
	Seller:	  	Issuer
		
	Buyer:	  	Dealer
		
	Shares:	  	The Common Stock of Issuer, par value USD 0.10 (Ticker Symbol: “NFP”).
		
	Number of Warrants:	  	For each Component, as provided in Annex A to this Confirmation.
		
	Warrant Entitlement:	  	One Share per Warrant
		
	Strike Price:	  	USD 15.765
		
	Premium:	  	USD 10,512,500
		
	Premium Payment Date:	  	The Effective Date
		
	Exchange:	  	New York Stock Exchange
		
	Related Exchange:	  	All Exchanges

  

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 Procedures for Exercise: 

In respect of any Component: 
  

			
	Expiration Time:	  	Valuation Time
		
	Expiration Date:	  	As provided in Annex A to this Confirmation (or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day that is not already an Expiration
Date for another Component); provided that, if that date is a Disrupted Day, the Expiration Date for such Component shall be the first succeeding Scheduled Trading Day that is not a Disrupted Day and is not or is not deemed to be an
Expiration Date in respect of any other Component of the Transaction hereunder; and provided further that, if the Expiration Date has not occurred pursuant to the preceding proviso as of the Final Disruption Date, the Calculation Agent shall
have the right to elect, in its reasonable discretion, that the Final Disruption Date shall be the Expiration Date (irrespective of whether such date is an Expiration Date in respect of any other Component for the Transaction). Notwithstanding the
foregoing and anything to the contrary in the Equity Definitions, if a Market Disruption Event occurs on any Expiration Date, the Calculation Agent may determine that such Expiration Date is a Disrupted Day only in part, in which case the
Calculation Agent shall make adjustments to the Number of Warrants for the relevant Component for which such day shall be the Expiration Date, shall designate the Scheduled Trading Day determined in the manner described in the immediately preceding
sentence as the Expiration Date for the remaining Warrants for such Component and may determine the VWAP Price based on transactions in the Shares effected on such Disrupted Day taking into account the nature and duration of such Market Disruption
Event on such day. Any Scheduled Trading Day on which, as of the date hereof, the Exchange is scheduled to close prior to its normal close of trading shall be deemed not to be a Scheduled Trading Day; if a closure of the Exchange prior to its normal
close of trading on any Scheduled Trading Day is scheduled following the date hereof, then such Scheduled Trading Day shall be deemed to be a Disrupted Day in full. Section 6.6 of the Equity Definitions shall not apply to any Valuation Date
occurring on an Expiration Date. “Final Disruption Date” means April 6, 2018.
		
	Market Disruption Event:	  	Section 6.3(a) of the Equity Definitions is hereby amended by (A) deleting the words “during the one hour period that ends at the relevant Valuation Time, Latest
Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be,” in clause (ii) thereof and (B) by replacing the words “or (iii) an Early Closure.” therein with “(iii) an Early Closure, or
(iv) a Regulatory Disruption.”.

  

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		  	Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the term “Scheduled Closing Time” in the fourth line
thereof.
		
	Regulatory Disruption:	  	Any event that Dealer, in its reasonable discretion, and based on the advice of counsel, determines makes it appropriate, with regard to any legal, regulatory or self-regulatory
requirements or related policies and procedures generally applicable to the relevant line of business, for Dealer to refrain from or decrease any market activity in connection with the Transaction.
		
	Automatic Exercise:	  	Applicable; and means that the Number of Warrants for the corresponding Expiration Date will be deemed to be automatically exercised at the Expiration Time on such Expiration
Date unless Dealer notifies Seller (by telephone or in writing) prior to the Expiration Time on such Expiration Date that it does not wish Automatic Exercise to occur, in which case Automatic Exercise will not apply to such Expiration
Date.
		
	Issuer’s Telephone Number and Telex and/or Facsimile Number and Contact Details for purpose of Giving Notice:	  	As provided in Section 6(a) below.


Settlement Terms: 
 In
respect of any Component: 
  

			
	 Settlement Currency: 
	  	 USD 

		
	Settlement Method Election:	  	Applicable; provided that:
		
		  	(i) Issuer may elect Cash Settlement only if, on or prior to the Settlement Method Election Date, Issuer delivers written notice to Dealer stating that Issuer has elected that
Cash Settlement apply, specifying the Components of the Transaction to which such election applies, and Dealer delivers written consent to such election by Issuer, by the second
(2nd) Scheduled Trading Day immediately following the day
on which such notice is delivered by Issuer; provided that, such consent will not be unreasonably withheld;
		
		  	(ii) on such notice delivery date, Issuer shall represent and warrant to Dealer in writing that, as of such notice delivery date:
		
		  	 (A) Issuer and its officers or directors, are not aware of any material nonpublic information regarding Issuer or the
Shares,


  

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		  	 (B) Issuer is electing Cash Settlement in good faith and not as part of a plan or scheme to evade compliance with the federal securities
laws,

		
		  	 (C) the assets of Issuer at their fair valuation exceed the liabilities of Issuer, including contingent liabilities,

		
		  	 (D) the capital of Issuer is adequate to conduct the business of Issuer,

		
		  	 (E) Issuer 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,

		
		  	 (F) it would be able to purchase the Number of Shares in compliance with the laws of Issuer’s jurisdiction or organization,

		
		  	 (G) Issuer has the power to make such election and to execute and deliver any documentation relating to such election that it is required by this
Confirmation to deliver and to perform its obligations under this Confirmation and has taken all necessary action to authorize such election, execution, delivery and performance,

		
		  	 (H) such election and performance of its obligations under this Confirmation do not violate or conflict with any law applicable to it, any provision
of its constitutional documents, any order or judgment of any court or other agency of government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets, and

		
		  	 (I) any transaction that Dealer makes with respect to the Shares during the period beginning at the time that Issuer delivers notice of its Cash
Settlement election and ending at the close of business on the final day of the Settlement Period shall be made by Dealer at Dealer’s sole discretion for Dealer’s own account and Issuer shall not have, and shall not attempt to exercise,
any influence over how, when, whether or at what price Dealer effects such transactions, including, without limitation, the prices paid or received by Dealer per Share pursuant to such transactions, or whether such transactions are made on any
securities exchange or privately,

		
		  	(iii) such Settlement Method Election shall apply to the Component(s) specified in such notice (or, if none are specified, to all Components); and
		
		  	(iv) no event of default has occurred and is continuing under any indebtedness of the Issuer or its subsidiaries in an aggregate principal amount of $10.0 million or
more.

  

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		  	At any time prior to making a Settlement Method Election, Issuer may, without the consent of Dealer, amend this Confirmation by notice to Dealer to eliminate Issuer’s right
to elect Cash Settlement.
		
		  	Notwithstanding the foregoing, in refusing to grant its consent with respect to Issuer’s Cash Settlement election, in addition to other reasons, Dealer may refuse such if
Dealer notifies Issuer that, in the reasonable judgment of Dealer, the election of Cash Settlement or any purchases of Shares that Dealer (or its affiliates) might make in connection therewith, based upon the advice of counsel and as a result of
events occurring after the Trade Date, would raise material risks under applicable securities laws.
		
	Electing Party:	  	Issuer
		
	Settlement Method Election Date:	  	The tenth
(10th) Scheduled Trading Day immediately preceding the
scheduled Expiration Date for the Component with the earliest scheduled Expiration Date.
		
	Default Settlement Method:	  	Net Share Settlement
		
	Net Share Settlement:	  	On each Settlement Date, Issuer shall deliver to Dealer a number of Shares equal to the Number of Shares to be Delivered for such Settlement Date to the account specified by
Dealer and cash in lieu of any fractional Share valued at the Relevant Price on the Valuation Date corresponding to such Settlement Date. If, in the reasonable opinion of Issuer or Dealer, based on advice of counsel, for any reason, the Shares
deliverable upon Net Share Settlement would not be immediately freely transferable by Dealer under Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”), then Dealer may elect to either (x) accept delivery of
such Shares notwithstanding any restriction on transfer or (y) have the provisions set forth in Section 8(b) below apply.
		
		  	The Number of Shares to be Delivered shall be delivered by Issuer to Dealer no later than 12:00 noon (local time in New York City) on the relevant Settlement
Date.
		
	Number of Shares to be Delivered:	  	In respect of any Exercise Date, subject to the last sentence of Section 9.5 of the Equity Definitions, the product of (i) the number of Warrants exercised or deemed exercised on
such Exercise Date, (ii) the Warrant Entitlement and (iii) (A) the excess of the VWAP Price on the Valuation Date occurring in respect of such Exercise Date over the Strike Price (or, if there is no such excess, zero) divided by (B) such VWAP
Price.

  

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	VWAP Price:	  	For any Scheduled Trading Day, as determined by the Calculation Agent based on the New York Volume Weighted Average Price per Share for the regular trading session (including any
extensions thereof) of the Exchange on such Exchange Business Day (without regard to pre-open or after hours trading outside of such regular trading session), as published by Bloomberg at 4:15 P.M., New York City time (or 15 minutes following the
end of any extension of the regular trading session), on such Scheduled Trading Day, on Bloomberg page “NFP.N <Equity> AQR” (or any successor thereto) (or if such published volume weighted average price is unavailable or is
manifestly incorrect, the market value of one Share on such Exchange Business Day, as determined by the Calculation Agent using a volume weighted method).
		
	Other Applicable Provisions:	  	The provisions of Sections 9.1(c), 9.4, 9.8, 9.9, 9.11 and 9.12 of the Equity Definitions will be applicable as if “Physical Settlement” applied to the Transaction;
provided that the Representation and Agreement contained in Section 9.11 of the Equity Definitions shall be modified by excluding any representations therein relating to restrictions, obligations, limitations or requirements under applicable
securities laws that exist as a result of the fact that Issuer is the issuer of the Shares.
		
	Option Cash Settlement Amount:	  	For any Exercise Date, the product of (i) the number of Warrants exercised or deemed exercised on such Exercise Date, (ii) the Warrant Entitlement and
(iii) (A) the excess of the VWAP Price on the Valuation Date occurring on such Exercise Date over the Strike Price (or, if there is no such excess, zero).


Adjustments: 
 In respect of
any Component: 
  

			
	Method of Adjustment:	  	Calculation Agent Adjustment; provided that in respect of an Extraordinary Dividend, “Calculation Agent Adjustment” shall be as described in the provision below.
For the avoidance of doubt, Calculation Agent Adjustment (including, without limitation, in respect of Extraordinary Dividends) shall continue to apply until the obligations of the parties (including any obligations of Issuer pursuant to Section
8(e) below) under the Transaction have been satisfied in full.
		
	Extraordinary Dividend:	  	Any cash dividend or distribution on the Shares with an ex-dividend date occurring on or after the Trade Date and on or prior to the Expiration Date (or, if any Deficit Shares
are owed pursuant to Section 8(e) below, such later date on which Issuer’s obligations under this Transaction have been satisfied in full).


 

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	Extraordinary Dividend Adjustment:	  	If at any time during the period from and including the Trade Date, to and including the Expiration Date for the Component with the latest Expiration Date (or, if any Deficit
Shares are owed pursuant to Section 8(e) below, such later date on which Issuer’s obligations under this Transaction have been satisfied in full), an ex-dividend date for an Extraordinary Dividend occurs or is deemed to occur, then the
Calculation Agent will make adjustments to any one or more of the Strike Price, the Number of Warrants, the Warrant Entitlement and/or any other variable relevant to the exercise, settlement, payment or other terms of the Transaction as it
determines appropriate to account for the economic effect on the Transaction of such Extraordinary Dividend.


Extraordinary Events: 
  

			
		
	New Shares:	  	In the definition of New Shares in Section 12.1(i) of the Equity Definitions, the text in clause (i) thereof shall be deleted in its entirety and replaced with “publicly
quoted, traded or listed on any of he New York Stock Exchange, The NASDAQ Global Market or The NASDAQ Global Select Market (or their respective successors) and of entity or person organized under the laws of the United States, any State thereof or
the District of Columbia”.
		
	Consequences of Merger Events:	  	
		
	 (a)    Share-for-Share:
	  	Modified Calculation Agent Adjustment
		
	 (b)    Share-for-Other:
	  	Cancellation and Payment (Calculation Agent Determination)
		
	 (c)    Share-for-Combined:
	  	Component Adjustment
		
	Tender Offer:	  	Applicable
		
	Consequences of Tender Offers:	  	
		
	 (a)    Share-for-Share:
	  	Modified Calculation Agent Adjustment
		
	 (b)    Share-for-Other:
	  	Modified Calculation Agent Adjustment
		
	 (c)    Share-for-Combined:
	  	Modified Calculation Agent Adjustment
		
	Modified Calculation Agent Adjustment:	  	If, in respect of any Merger Event or Tender Offer to which Modified Calculation Agent Adjustment applies, the adjustments to be made in accordance with Section 12.2(e)(i) or
12.3(d)(i), as the case may be, of the Equity Definitions would result in Issuer being different from the issuer of the Shares, then with respect to such Merger Event or Tender Offer, as a condition precedent to the adjustments contemplated in
Section 12.2(e)(i) or Section 12.3(d)(i), as the case may be, of the Equity Definitions, Issuer and the issuer of the Shares shall, prior to the Merger Date or Tender Offer Date, as the case may be, have entered into such
documentation

  

 8 









			
		  	containing representations, warranties and agreements relating to securities law and other issues as requested by Dealer that Dealer has determined, in its reasonable discretion,
to be reasonably necessary or appropriate to allow Dealer to continue as a party to the Transaction, as adjusted under Section 12.2(e)(i) or Section 12.3(d)(i), as the case may be, of the Equity Definitions, and to preserve its hedging or hedge
unwind activities in connection with the Transaction in a manner compliant with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to Dealer, and if such conditions are not met or if the
Calculation Agent determines that no adjustment that it could make under Section 12.2(e)(i) or 12.3(d)(i), as the case may be, of the Equity Definitions will produce a commercially reasonable result, then the consequences set forth in Section
12.2(e)(ii) or 12.3(d)(i), as the case may be, of the Equity Definitions shall apply.
		
	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 such exchange or quotation system, such exchange or quotation system shall thereafter be deemed to be
the Exchange.

		
	Additional Termination Event(s):	  	Notwithstanding anything to the contrary in the Equity Definitions, if, as a result of an Extraordinary Event, any Transaction would be cancelled or terminated (whether in whole
or in part) pursuant to Article 12 of the Equity Definitions, an Additional Termination Event (with such terminated Transaction(s) (or portions thereof) being the Affected Transaction(s) and Issuer being the sole Affected Party) shall be deemed to
occur, and, in lieu of Sections 12.7, 12.8 and 12.9 of the Equity Definitions, Section 6 of the Agreement shall apply to such Affected Transaction(s).
		
	Additional Disruption Events:	  	
		
	 (a)    Change in Law:
	  	Applicable
		
	 (b)    Failure to Deliver:
	  	Applicable
		
	 (c)    Insolvency Filing:
	  	Applicable

  

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	 (d)    Hedging Disruption:
	  	Applicable; provided that Section 12.9(a)(v) of the Equity Definitions is hereby modified by 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, as anticipated on the Trade Date; provided that the scheduled exercise or
scheduled expiration of call options on the Shares (with a Trade Date of even date herewith) sold by Dealer to Company in accordance with the terms of such call options shall not provide the sole basis for the occurrence of a Hedging
Disruption.”
		
		  	(ii) Section 12.9(b)(iii) of the Equity Definitions is hereby modified by inserting in the third line thereof, after the words “to terminate the Transaction”, the
following words:
		
		  	“or a portion of the Transaction affected by such Hedging Disruption”.
		
	 (e)    Increased Cost of Hedging:
	  	Applicable
		
	 (f)     Loss of Stock Borrow:
	  	Applicable
		
	 Maximum Stock Loan Rate:
	  	1.00% per annum
		
	 (g)    Increased Cost of Stock Borrow:
	  	Applicable
		
	 Initial Stock Loan Rate:
	  	0.35% per annum
		
	Hedging Party:	  	Dealer for all applicable Additional Disruption Events.
		
	Determining Party:	  	Dealer for all applicable Additional Disruption Events.
		
	Non-Reliance:	  	Applicable
		
	Agreements and Acknowledgments Regarding Hedging Activities:	  	 Applicable

		
	Additional Acknowledgments:	  	Applicable
		
	3. Calculation Agent:	  	Dealer. All calculations and determinations by the Calculation Agent shall be made in good faith and in a commercially reasonable manner. The Calculation Agent shall deliver,
within five Exchange Business Days of a written request by Issuer, a written explanation of any calculation made by it, and including, where applicable, the methodology and data applied, it being understood that the Calculation Agent shall not be
obligated to disclose any proprietary models used by it for such calculation.

  

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	4. Account Details:	  	

 Dealer Payment Instructions: 

Chase Manhattan Bank New York 

For A/C Goldman, Sachs & Co. 

A/C #930-1-011483 

ABA: 021-000021 

Account for delivery of Shares to Dealer: To be provided by Dealer 

Issuer Payment Instructions: 

Wachovia 
 12
East 49th Street 
 New York, New York 10017 

Bank Routing or ABA: 031201467 

Account #: 2000030131497 

5. Offices: 

The Office of Dealer for the Transaction is: 

200 West Street, New York, New York 10282-2198 

The Office of Issuer for the Transaction is: 

340 Madison Avenue, 20th Floor, New York, New York 10173 

6. Notices: For purposes of this Confirmation: 

(a) 
  

			
	To:	  	National Financial Partners Corp.
		  	340 Madison Avenue, 20th Floor
		  	New York, New York 10173
	Attn:	  	Donna Blank
		
	Telephone:	  	(212) 307-1049
	Facsimile:	  	(212) 301-1149
	
	 With a copy to: 

		
	Attn:	  	Yossi Vebman
		  	Skadden, Arps, Slate, Meagher & Flom LLP
		  	Four Times Square
		  	New York, New York 10036
	Telephone:	  	(212) 735-3719
	Facsimile:	  	(212) 735-3719

 (b) Address for notices or
communications to Dealer: 
  

			
	To:	  	Goldman, Sachs & Co.
	Attn:	  	Serge Marquié,
		  	Equity Capital Markets
		  	200 West Street
		  	New York, New York 10282
	Telephone:	  	(212) 902-9779
	Facsimile:	  	(917) 977-4253
	Email:	  	marqse@am.ibd.gs.com

  

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	With a copy to:
		
	Attn:	  	Jared Kramer
		  	Equity Capital Markets
	Telephone:	  	(212) 902-3002
	Facsimile:	  	(212) 902-3000
	Email:	  	jared.kramer@gs.com

 And email
notification to the following address: 
 Eq-derivs-notifications@am.ibd.gs.com 

7. Representations, Warranties and Agreements: 

(a) In addition to the representations and warranties in the Agreement and those contained elsewhere herein, Issuer represents and
warrants to and for the benefit of, and agrees with, Dealer as follows: 
 (i) On the Trade Date and as of the
date of any election by Issuer of the Share Termination Alternative under (and as defined in) Section 8(a) below, (A) none of Issuer and its officers and directors is aware of any material nonpublic information regarding Issuer or the
Shares and (B) all reports and other documents filed by Issuer with the Securities and Exchange Commission (the “SEC”) pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), when
considered as a whole (with the more recent such reports and documents deemed to amend inconsistent statements contained in any earlier such reports and documents), do not contain any untrue statement of a material fact or any omission of a material
fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading. 

(ii) Without limiting the generality of Section 13.1 of the Equity Definitions, Issuer acknowledges that neither
Dealer nor any of its affiliates is making any representations or warranties or taking any position or expressing any view with respect to the treatment of the Transaction under any accounting standards including ASC Topic 260, Earnings Per
Share, ASC Topic 815, Derivatives and Hedging, or ASC Topic 480, Distinguishing Liabilities from Equity and ASC 815-40, Derivatives and Hedging – Contracts in Entity’s Own Equity (or any successor issue
statements). 
 (iii) Prior to the Trade Date, Issuer shall deliver to Dealer a resolution of Issuer’s board
of directors authorizing the Transaction and such other certificate or certificates as Dealer shall reasonably request. 

(iv) Issuer is not entering into this Confirmation to create actual or apparent trading activity in the Shares (or any
security convertible into or exchangeable for Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for Shares) or otherwise in violation of the Exchange Act. 

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

(vi) On the Trade Date and the Premium Payment Date (A) the assets of Issuer at their fair valuation exceed the
liabilities of Issuer, including contingent liabilities, (B) the capital of Issuer is adequate to conduct the business of Issuer and (C) Issuer 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. 
 (vii) Issuer
shall not take any action to decrease the number of Available Shares below the Capped Number (each as defined below). 

(viii) (A) On the Trade Date, the Shares or securities that are convertible into, or exchangeable or exercisable for
Shares, are not, and shall not be, subject to a “restricted period,” as such term is defined in Regulation M under the Exchange Act (“Regulation M”) and (B) Issuer

  

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shall not engage in any “distribution,” as such term is defined in Regulation M, other than a distribution meeting the requirements of the exceptions set forth in sections 101(b)(10)
and 102(b)(7) of Regulation M, until the second Exchange Business Day immediately following the Trade Date. 

(ix) (A) During the period starting on the first Expiration Date and ending on the last Expiration Date (the
“Settlement Period”), the Shares or securities that are convertible into, or exchangeable or exercisable for Shares, are not, and shall not be, subject to a “restricted period,” as defined in Regulation M and
(B) Issuer shall not engage in any “distribution,” as such term is defined in Regulation M, other than a distribution meeting the requirements of the exceptions set forth in sections 101(b)(10) and 102(b)(7) of Regulation M, until the
second Exchange Business Day immediately following the Settlement Period. 
 (x) During the Settlement Period and
on any other Exercise Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 of the Exchange Act (“Rule 10b-18”)) shall directly or indirectly (including, without
limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest,
including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except through Dealer; provided that this Section shall not apply to
the following: (A) privately negotiated purchases of Shares (or any security convertible into or exchangeable for Shares); (B) purchases of Shares pursuant to exercises of stock options granted to former or current employees, officers,
directors, independent contractors or other affiliates of Issuer, including the withholding and/or purchase of Shares from holders of such options to satisfy payment of the option exercise price and/or satisfy tax withholding requirements in
connection with the exercise of such options; (C) purchases of Shares from holders of performance shares or units or restricted shares or units to satisfy tax withholding requirements in connection with vesting; or (D) the conversion or
exchange by holders of any convertible or exchangeable securities of the Issuer previously issued; or (E) purchases of Shares effected by or for a plan by an agent independent of the Issuer that satisfy the requirements of
Rule10b-18(a)(13)(ii). 
 (xi) Issuer agrees that it (A) will not during the Settlement Period make, or
permit to be made, any public announcement (as defined in Rule 165(f) under the Securities Act) of any Merger Transaction or potential Merger Transaction unless such public announcement is made prior to the opening or after the close of the regular
trading session on the Exchange for the Shares; (B) shall promptly (but in any event prior to the next opening of the regular trading session on the Exchange) notify Dealer following any such announcement that such announcement has been made;
and (C) shall promptly (but in any event prior to the next opening of the regular trading session on the Exchange) provide Dealer with written notice specifying (i) Issuer’s average daily Rule 10b-18 Purchases (as defined in Rule
10b-18) during the three full calendar months immediately preceding the announcement date that were not effected through Dealer or its affiliates and (ii) the number of Shares purchased pursuant to the proviso in Rule 10b-18(b)(4) under the
Exchange Act for the three full calendar months preceding the announcement date. Such written notice shall be deemed to be a certification by Issuer to Dealer that such information is true and correct. In addition, Issuer shall promptly notify
Dealer of the earlier to occur of the completion of such transaction and the completion of the vote by target shareholders. “Merger Transaction” means any merger, acquisition or similar transaction involving a recapitalization as
contemplated by Rule 10b-18(a)(13)(iv) under the Exchange Act. 
 (xii) Any Shares issued or delivered in
connection with the Transaction shall be duly authorized and validly issued, fully paid and non-assessable, and the issuance or delivery thereof shall not be subject to any preemptive or similar rights and shall, upon issuance, be accepted for
listing or quotation on the Exchange. The Shares of Issuer initially issuable upon exercise of the Warrants have been reserved for issuance by all required corporate action of the Issuer. 

(xiii) No state or local (including non-U.S. jurisdictions) law, rule, regulation or regulatory order applicable to the
Shares would give rise to any reporting, consent, registration or 
  

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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, holding (however defined) or
having a right to acquire Shares. 
 (b) Each of Dealer and Issuer agrees and represents that it is an “eligible contract
participant” as defined in Section 1a(12) of the U.S. Commodity Exchange Act, as amended, and is entering into the Transaction as principal (and not as agent or in any other capacity, fiduciary or otherwise) and not for the benefit of any
third party. 
 (c) Each of Dealer and Issuer acknowledges that the offer and sale of the Transaction to it is intended to be
exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”), by virtue of Section 4(2) thereof. Accordingly, Dealer represents and warrants to Issuer that (i) it has the financial ability
to bear the economic risk of its investment in the Transaction and is able to bear a total loss of its investment and its investments in and liabilities in respect of the Transaction, which it understands are not readily marketable, are not
disproportionate to its net worth, and it is able to bear any loss in connection with the Transaction, including the loss of its entire investment in the Transaction, (ii) it is an “accredited investor” as that term is defined in
Regulation D as promulgated under the Securities Act, (iii) it is entering into the Transaction for its own account and without a view to the distribution or resale thereof, (iv) the assignment, transfer or other disposition of the
Transaction has not been and will not be registered under the Securities Act and is restricted under this Confirmation, the Securities Act and state securities laws, and (v) its financial condition is such that it has no need for liquidity with
respect to its investment in the Transaction and no need to dispose of any portion thereof to satisfy any existing or contemplated undertaking or indebtedness and is capable of assessing the merits of and understanding (on its own behalf or through
independent professional advice), and understands and accepts, the terms, conditions and risks of the Transaction. 
 (d) Each
of Dealer and Issuer agrees and acknowledges that Dealer is a “financial institution,” “swap participant” and “financial participant” within the meaning of Sections 101(22), 101(53C) and 101(22A) of Title 11 of the
United States Code (the “Bankruptcy Code”). The parties hereto further agree and acknowledge (A) that this Confirmation is (i) a “securities contract,” as such term is defined in Section 741(7) of the
Bankruptcy Code, with respect to which each payment and delivery hereunder or in connection herewith is a “termination value,” “payment amount” or “other transfer obligation” within the meaning of Section 362 of
the Bankruptcy Code and a “settlement payment” within the meaning of Section 546 of the Bankruptcy Code, and (ii) a “swap agreement,” as such term is defined in Section 101(53B) of the Bankruptcy Code, with respect
to which each payment and delivery hereunder or in connection herewith is a “termination value,” “payment amount” or “other transfer obligation” within the meaning of Section 362 of the Bankruptcy Code and a
“transfer” within the meaning of Section 546 of the Bankruptcy Code, and (B) that Dealer is entitled to the protections afforded by, among other sections, Sections 362(b)(6), 362(b)(17), 362(b)(27), 362(o), 546(e), 546(g),
546(j), 548(d)(2), 555, 560 and 561 of the Bankruptcy Code. 
 (e) Issuer shall deliver to Dealer an opinion of counsel, dated
as of the Effective Date and reasonably acceptable to Dealer in form and substance, with respect to the matters set forth in Section 3(a) of the Agreement. 

(f) 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. 
 (g) Issuer
understands that notwithstanding any other relationship between Issuer and Dealer and its affiliates, in connection with this Transaction and any other over-the-counter derivative transactions between Issuer and Dealer or its affiliates, Dealer or
its affiliates is acting as principal and is not a fiduciary or advisor in respect of any such transaction, including any entry, exercise, amendment, unwind or termination thereof. 

8. Other Provisions: 

(a) Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events. If Issuer shall owe Dealer any
amount pursuant to Section 12.2, 12.3, 12.6, 12.7 or 
  

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12.9 of the Equity Definitions or pursuant to Section 6(d)(ii) of the Agreement (a “Payment Obligation”), Issuer shall have the right, in its sole discretion, to satisfy any
such Payment Obligation by the Share Termination Alternative (as defined below) by giving irrevocable telephonic notice to Dealer, confirmed in writing within one Scheduled Trading Day, no later than 9:30 A.M., New York City time, on the Merger
Date, Tender Offer Date, Announcement Date or Early Termination Date, as applicable (“Notice of Share Termination”); provided that Issuer shall not have the right to so elect (but, for the avoidance of doubt, Dealer shall
have the right to so elect) in the event of (i) an Insolvency, a Nationalization, a Tender Offer or a Merger Event, in each case, in which the consideration or proceeds to be paid to holders of Shares consists solely of cash or (ii) an
Event of Default in which Issuer is the Defaulting Party or a Termination Event in which Issuer is the Affected Party, which Event of Default or Termination Event resulted from an event or events within Issuer’s control. Upon such Notice of
Share Termination, the following provisions shall apply on the Scheduled Trading Day immediately following the Merger Date, the Tender Offer Date, Announcement Date or Early Termination Date, as applicable: 

 

			
	Share Termination Alternative:	  	Applicable and means that Issuer shall deliver to Dealer the Share Termination Delivery Property on the date on which the Payment Obligation would otherwise be due pursuant to
12.7 or 12.9 of the Equity Definitions or Section 6(d)(ii) of the Agreement, as applicable (the “Share Termination Payment Date”), in satisfaction of the Payment Obligation.
		
	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 the aggregate amount of a security therein with an amount of cash in the Settlement Currency 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 of property contained in one Share Termination Delivery Unit on the date such Share Termination Delivery Units are to be delivered as Share Termination Delivery
Property, as determined by the Calculation Agent in its discretion by commercially reasonable means and notified by the Calculation Agent to Issuer at the time of notification of the Payment Obligation.
		
	Share Termination Delivery Unit:	  	In the case of a Termination Event, Event of Default or Delisting, one Share or, in the case of an Insolvency, Nationalization, Merger Event or Tender Offer, one Share or a unit
consisting of the number or amount of each type of 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 Insolvency,
Nationalization, Merger Event or Tender Offer. If such Insolvency, Nationalization, Merger Event or Tender Offer involves a choice of consideration to be received by holders, such holder shall be deemed to have elected to receive the maximum
possible amount of cash.
		
	Failure to Deliver:	  	Applicable
		
	Other Applicable Provisions:	  	If Share Termination Alternative is applicable, the provisions of Sections 9.1(c), 9.8, 9.9, 9.10, 9.11 and 9.12 of the Equity Definitions will be applicable as if “Physical
Settlement” applied to the Transaction, except that all references to “Shares” shall be read as references to “Share Termination Delivery Units”; provided that the Representation and Agreement contained in Section
9.11 of the Equity Definitions shall be modified by excluding any representations therein relating to restrictions, obligations, limitations or requirements under


 

 15 









			
		  	applicable securities laws as a result of the fact that Issuer is the issuer of any Share Termination Delivery Units. If, in the reasonable opinion of counsel to Issuer or Dealer
for any reason, any securities comprising the Share Termination Delivery Units deliverable pursuant to this Section 8(a) would not be immediately freely transferable by Dealer under Rule 144 under the Securities Act, then Dealer may elect to
either (x) permit delivery of such securities notwithstanding any restriction on transfer or (y) have the provisions set forth in Section 8(b) below apply.


(b) Registration/Private Placement Procedures. (i) With respect to the Transaction, the following provisions shall apply to
the extent provided for above opposite the caption “Net Share Settlement” in Section 2 or in paragraph (a) of this Section 8. If so applicable and the Shares or Share Termination Delivery Units, as the case may be, at such
time may not be sold by Dealer without any restrictions under Rule 144 under the Securities Act or otherwise, then, at the election of Issuer by notice to Dealer within one Exchange Business Day after the relevant delivery obligation arises, but in
any event at least one Exchange Business Day prior to the date on which such delivery obligation is due, either (A) all Shares or Share Termination Delivery Units, as the case may be, delivered by Issuer to Dealer shall be, at the time of such
delivery, covered by an effective registration statement of Issuer for immediate resale by Dealer (such registration statement and the corresponding prospectus (the “Prospectus”) (including, without limitation, any sections
describing the plan of distribution) in form and content commercially reasonably satisfactory to Dealer) or (B) Issuer shall deliver additional Shares or Share Termination Delivery Units, as the case may be, so that the value of such Shares or
Share Termination Delivery Units, as determined by the Calculation Agent to reflect an appropriate liquidity discount, equals the value of the number of Shares or Share Termination Delivery Units that would otherwise be deliverable if such Shares or
Share Termination Delivery Units were freely tradeable (without prospectus delivery) upon receipt by Dealer (such value, the “Freely Tradeable Value”); provided that, if requested by Dealer, Issuer shall make the election
described in this clause (B) with respect to Shares delivered on all Settlement Dates no later than one Exchange Business Day prior to the first Exercise Date, and the applicable procedures described below shall apply to all Shares delivered on
the Settlement Dates on an aggregate basis. (For the avoidance of doubt, as used in this paragraph (b) only, the term “Issuer” shall mean the issuer of the relevant securities, as the context shall require.) 

(ii) If Issuer makes the election described in clause (b)(i)(A) above: 

(A) Dealer (or an affiliate of Dealer designated by Dealer) shall be afforded a reasonable opportunity to conduct a due
diligence investigation with respect to Issuer that is customary in scope for underwritten offerings of equity securities and that yields results that are commercially reasonably satisfactory to Dealer or such affiliate, as the case may be, in its
discretion; and 
 (B) Buyer (or an affiliate of Dealer designated by Dealer) and Issuer shall enter into an
agreement (a “Registration Agreement”) on commercially reasonable terms in connection with the public resale of such Shares or Share Termination Delivery Units, as the case may be, by Dealer or such affiliate substantially similar
to underwriting agreements customary for underwritten offerings of equity securities, in form and substance commercially reasonably satisfactory to Dealer or such affiliate and Issuer, which Registration Agreement shall include, without limitation,
provisions substantially similar to those contained in such underwriting agreements relating to the indemnification of, and contribution in connection with the liability of, Dealer and its affiliates and Issuer, shall provide for the payment by
Issuer of all expenses in connection with such resale, including all registration costs and all reasonable fees and expenses of counsel for Dealer, and shall provide for the delivery of accountants’ “comfort letters” to Dealer or such
affiliate with respect to the financial statements and certain financial information contained in or incorporated by reference into the Prospectus. 
  

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 (iii) If Issuer makes the election described in clause (b)(i)(B) above: 

(A) Dealer (or an affiliate of Dealer designated by Dealer) and any potential institutional purchaser of any such Shares
or Share Termination Delivery Units, as the case may be, from Dealer or such affiliate identified by Dealer shall be afforded a commercially reasonable opportunity to conduct a due diligence investigation in compliance with applicable law with
respect to Issuer customary in scope for private placements of equity securities (including, without limitation, the right to have made available to them for inspection all financial and other records, pertinent corporate documents and other
information reasonably requested by them), subject to execution by such recipients of customary confidentiality agreements reasonably acceptable to Issuer; 

(B) Dealer (or an affiliate of Dealer designated by Dealer) and Issuer shall enter into an agreement (a “Private
Placement Agreement”) on commercially reasonable terms in connection with the private placement of such Shares or Share Termination Delivery Units, as the case may be, by Issuer to Dealer or such affiliate and the private resale of such
shares by Dealer or such affiliate, substantially similar to private placement purchase agreements customary for private placements of equity securities, in form and substance commercially reasonably satisfactory to Dealer and Issuer, which Private
Placement Agreement shall include, without limitation, provisions substantially similar to those contained in such private placement purchase agreements relating to the indemnification of, and contribution in connection with the liability of, Dealer
and its affiliates and Issuer, shall provide for the payment by Issuer of all expenses in connection with such resale, including all fees and reasonable expenses of counsel for Dealer, shall contain representations, warranties and agreements of
Issuer reasonably necessary or advisable to establish and maintain the availability of an exemption from the registration requirements of the Securities Act for such resales, and shall use commercially reasonable efforts to provide for the delivery
of accountants’ “comfort letters” to Dealer or such affiliate with respect to the financial statements and certain financial information contained in or incorporated by reference into the offering memorandum prepared for the resale of
such Shares; 
 (C) Issuer agrees that any Shares or Share Termination Delivery Units so delivered to Dealer,
(i) may be transferred by and among Dealer and its affiliates, and Issuer shall effect such transfer without any further action by Dealer and (ii) after the minimum “holding period” within the meaning of Rule 144(d) under the
Securities Act has elapsed with respect to such Shares or any securities issued by Issuer comprising such Share Termination Delivery Units, Issuer shall promptly remove, or cause the transfer agent for such Shares or securities to remove, any
legends referring to any such restrictions or requirements from such Shares or securities upon delivery by Dealer (or such affiliate of Dealer) to Issuer or such transfer agent of any seller’s and broker’s representation letters
customarily delivered by Dealer in connection with resales of restricted securities pursuant to Rule 144 under the Securities Act, without any further requirement for the delivery of any certificate, consent, agreement, opinion of counsel, notice or
any other document, any transfer tax stamps or payment of any other amount or any other action by Dealer (or such affiliate of Dealer); and 

(D) Issuer may not make the election described in this clause (b) if, on the date of its election, it has taken, or
caused to be taken, any action that would make unavailable either the exemption pursuant to Section 4(2) of the Securities Act for the sale by Issuer to Dealer (or any affiliate designated by Dealer) of the Shares or the exemption pursuant to
Section 4(1) or Section 4(3) of the Securities Act for resales of the Shares by Dealer (or any such affiliate of Dealer). 

(c) Make-whole Shares. If Issuer makes the election described in clause (i)(B) of paragraph (b) of this Section 8, then
Dealer or its affiliates may sell (which sale shall be made in a commercially reasonable manner) such Shares or Share Termination Delivery Units, as the case may be, during a period (the “Resale Period”) commencing on the Exchange
Business Day following delivery of such Shares or Share Termination Delivery Units, as the case may be, and ending on the Exchange Business Day on which Dealer or its affiliates completes the sale of all such Shares or Share Termination Delivery
Units, as the case may be, or a sufficient number of Shares or Share Termination Delivery Units, as the case may be, so that the realized net proceeds of such sales exceed the Freely Tradeable Value. If any of such delivered Shares or Share
Termination Delivery Units remain after such realized net proceeds exceed the Freely Tradeable Value, Dealer shall return such remaining Shares or Share Termination Delivery Units to Issuer. 

 

 17 








 
If the Freely Tradeable Value exceeds the realized net proceeds from such resale, Issuer shall transfer to Dealer by the open of the regular trading session on the Exchange on the Exchange
Trading Day immediately following the last day of the Resale Period the amount of such excess (the “Additional Amount”) in cash or in a number of additional Shares or Share Termination Delivery Units, as the case may be,
(“Make-whole Shares”) in an amount that, based on the Relevant Price on the last day of the Resale Period (as if such day was the “Valuation Date” for purposes of computing such Relevant Price), has a dollar value equal to
the Additional Amount. The Resale Period shall continue to enable the sale of the Make-whole Shares in the manner contemplated by this Section 8(c). This provision shall be applied successively until the Additional Amount is equal to zero,
subject to Section 8(e). 
 (d) Beneficial Ownership. Notwithstanding anything to the contrary in the Agreement or
this Confirmation, in no event shall Dealer be entitled to receive, or shall be deemed to receive, any Shares if, immediately upon giving effect to such receipt of such Shares, (i) the “beneficial ownership” (within the meaning of
Section 13 of the Exchange Act and the rules promulgated thereunder) of Shares by Dealer, any of its affiliates subject to aggregation with Dealer for purposes of the “beneficial ownership” test under Section 13 of the Exchange
Act and all persons who may form a “group” (within the meaning of Rule 13d-5(b)(1) under the Exchange Act) with Dealer with respect to “beneficial ownership” of any Shares (collectively, “Dealer Group”) would be
equal to or greater than 9.0% or more of the outstanding Shares on the date of determination, (ii) Dealer, Dealer Group or any person whose ownership position would be aggregated with that of Dealer or Dealer Group (Dealer, Dealer Group or any
such person, a “Dealer Person”) under Section 203 of the Delaware General Corporation Law or other federal, state or local regulations or regulatory orders applicable to ownership of Shares (“Applicable Laws”),
would own, beneficially own, constructively own, control, hold the power to vote or otherwise meet a relevant definition of ownership in excess of a number of Shares equal to (x) the number of Shares that would give rise to reporting (other
than on Form 13D or 13G under the Exchange Act) or registration obligations or other requirements (including obtaining prior approval by a state or federal regulator) of a Dealer Person under Applicable Laws and with respect to which such
requirements have not been met or the relevant approval has not been received or that would subject a Dealer Person to restrictions (including restrictions relating to business combinations and other designated transactions) under Applicable Laws
minus (y) 1.0% of the number of Shares outstanding on the date of determination or (iii) Dealer Group, directly or individually, owns, controls or holds with the power to vote (as such term is used in Section 2(a)(3) of the
1940 Act) in excess of 4.0% of the number of Shares outstanding (any such condition described in clauses (i), (ii) or (iii), an “Excess Ownership Position”). If any delivery owed to Dealer hereunder is not made, in whole or in
part, as a result of this provision, Issuer’s obligation to make such delivery shall not be extinguished and Issuer shall make such delivery as promptly as practicable after, but in no event later than one Exchange Business Day after, Dealer
gives notice to Issuer that such delivery would not result in the existence of an Excess Ownership Position. 
 (e)
Limitations on Settlement by Issuer. Notwithstanding anything herein or in the Agreement to the contrary, in no event shall Issuer be required to deliver Shares in connection with the Transaction in excess of the lower of (i) 9,708,924
Shares (such number, as it may be adjusted from time to time in accordance with the provisions hereof, including the “Adjustment” provisions above, the “Capped Number”) and (ii) so long as the Shareholder Approval (as
defined below) has not been obtained, 4,259,810 Shares (such number, as it may be adjusted from time to time in accordance with the provisions hereof, but without regard, solely for the purposes of this provision, to any adjustments effected
pursuant to Section 11.2(vii) of the Equity Definitions) as of the Trade Date (such limitation, the “Shareholders Approval Limitation”). Issuer represents and warrants to Dealer (which representation and warranty shall be
deemed to be repeated on each day that the Transaction is outstanding) that the Capped Number is equal to or less than the number of authorized but unissued Shares of the Issuer that are not reserved for future issuance in connection with
transactions in the Shares (other than the Transaction) on the date of the determination of the Capped Number (such Shares, the “Available Shares”). In the event that Issuer shall not have delivered the full number of Shares
deliverable as a result of clause (i) of the definition of Capped Number (the resulting deficit, the “Deficit Shares”), Issuer shall be continually obligated to deliver Shares, from time to time until the full number of Deficit
Shares have been delivered pursuant to this paragraph, when, and to the extent, that (A) Shares are repurchased, acquired or otherwise received by Issuer or any of its subsidiaries after the Trade Date (whether or not in exchange for cash, fair
value or any other 
  

 18 








 
consideration), (B) authorized and unissued Shares reserved for issuance in respect of other transactions prior to such date which prior to the relevant date become no longer so reserved and
(C) Issuer additionally authorizes any unissued Shares that are not reserved for other transactions (such events as set forth in clauses (A), (B) and (C) above, collectively, the “Share Issuance Events”). Issuer shall
promptly notify Dealer of the occurrence of any of the Share Issuance Events (including the number of Shares subject to clause (A), (B) or (C) and the corresponding number of Shares to be delivered) and, as promptly as reasonably
practicable, deliver such Shares thereafter. Issuer shall not, until Issuer’s obligations under the Transaction have been satisfied in full, use any Shares that become available for potential delivery to Dealer as a result of any Share Issuance
Event for the settlement or satisfaction of any transaction or obligation other than the Transaction or reserve any such Shares for future issuance for any purpose other than to satisfy Issuer’s obligations to Dealer under the Transaction. In
addition, Issuer agrees to use its reasonable best efforts to obtain a shareholders approval prior to December 31, 2012 (such approval, the “Shareholder Approval”) to eliminate the Shareholders Approval Limitations with respect
to this Transaction. For the avoidance of doubt, “reasonable best efforts” for the purposes of the preceding sentence means, for each of Issuer’s regularly scheduled annual shareholder meeting occurring prior to December 31,
2012, putting forth such proposal on the official shareholder voting ballot, the board of directors of Issuer (the “Board of Directors”) recommending shareholders vote in favor of such proposal, and the Board of Directors supporting
such proposal in the event of any potential opposition. Until such time that the Issuer obtains the Shareholder Approval, if as of any Settlement Date for any Component with respect to this Transaction, as a result of the application of the Share
delivery limitation contained in clause (ii) of the definition of Capped Number, Issuer does not deliver to Dealer a number of Shares equal to the Number of Shares to be Delivered with respect to such Settlement Date or a number of Share
Termination Delivery Units due on any date determined in accordance with Section 8(a) of this Confirmation, the Calculation Agent shall make an adjustment to the Strike Price, the Warrant Entitlement or any other term relevant to any
outstanding Component of this Transaction, to account for such number of shares not so delivered to Dealer, in order to allow Dealer to be made whole for any failure by Issuer to deliver any Shares with respect to the Number of Shares to be
delivered for any Component under this Transaction; provided that the aggregate Number of Shares to be Delivered for all Settlement Dates will not be greater than the Capped Number. 

(f) Equity Rights. Dealer acknowledges and agrees that this Confirmation is not intended to convey to it rights with respect to
the Transaction that are senior to the claims of common stockholders in the event of Issuer’s bankruptcy. For the avoidance of doubt, the parties agree that the preceding sentence shall not apply at any time other than during Issuer’s
bankruptcy to any claim arising as a result of a breach by Issuer of any of its obligations under this Confirmation or the Agreement. For the avoidance of doubt, the parties acknowledge that the obligations of Issuer under this Confirmation are not
secured by any collateral that would otherwise secure the obligations of Issuer herein under or pursuant to any other agreement. 

(g) Amendments to Equity Definitions and Agreement. The following amendments shall be made to the Equity Definitions and to the
Agreement: 
 (i) The first sentence of Section 11.2(c) of the Equity Definitions, prior to clause
(A) thereof, is hereby amended to read as follows: ‘(c) If “Calculation Agent Adjustment” is specified as the Method of Adjustment in the related Confirmation of a Share Option Transaction, then following the announcement or
occurrence of any Potential Adjustment Event, the Calculation Agent will determine whether such Potential Adjustment Event has a material effect on the theoretical value of the relevant Shares or options on the Shares and, if so, will (i) make
appropriate adjustment(s), if any, to any one or more of:’ and, the portion of such sentence immediately preceding clause (ii) thereof is hereby amended by deleting the words “diluting or concentrative” and the words
“(provided that no adjustments will be made to account solely for changes in volatility, expected dividends, stock loan rate or liquidity relative to the relevant Shares)” and replacing such latter phrase with the words “(and, for the
avoidance of doubt, adjustments may be made to account solely for changes in volatility, expected dividends, stock loan rate or liquidity relative to the relevant Shares)”; 

 

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 (ii) Sections 11.2(a) and 11.2(e)(vii) of the Equity Definitions are hereby
amended by deleting the words “diluting or concentrative” and replacing them with “material” and adding the phrase “or options on the Shares” at the end of the sentence; 

(iii) Section 12.1(l) of the Equity Definitions shall be amended (x) by deleting the parenthetical phrase in
both the third line thereof and the fifth line thereof and (y) by replacing the word “that” in both the third line thereof and the fifth line thereof with the words “whether or not such announcement” and (ii) Sections
12.2(b), 12.2(e), 12.3(a) and 12.3(d) of the Equity Definitions shall each be amended by replacing each occurrence of the words “Merger Date” and “Tender Offer Date”, as the case may be, with the words “Announcement
Date”; 
 (iv) Section 12.9(b)(iv) of the Equity Definitions is hereby amended by (A) deleting
(1) subsection (A) in its entirety, (2) the phrase “or (B)” following subsection (A) and (3) the phrase “in each case” in subsection (B); (B) replacing “will lend” with “lends” in
subsection (B); and (C) deleting the phrase “neither the Non-Hedging Party nor the Lending Party lends Shares in the amount of the Hedging Shares or” in the penultimate sentence; 

(v) Section 12.9(b)(v) of the Equity Definitions is hereby amended by (A) adding the word “or”
immediately before subsection “(B)” and deleting the comma at the end of subsection (A); and (B)(1) deleting subsection (C) in its entirety, (2) deleting the word “or” immediately preceding subsection (C),
(3) replacing in the penultimate sentence the words “either party” with “the Hedging Party” and (4) deleting clause (X) in the final sentence; and 

(vi) Section 12.7(b) of the Equity Definitions is hereby amended by deleting the words “(and in any event within
five Exchange Business Days) by the parties after” appearing after the words “agreed promptly” and replacing with the words “by the parties on or prior to”. 

(h) Transfer and Assignment. Dealer may transfer or assign its rights and obligations hereunder and under the Agreement, in whole
or in part, at any time, without the consent of Issuer, to any bank, broker-dealer or other regulated entity or any affiliate thereof that in either case regularly enters into over-the-counter equity derivative transactions. 

(i) Disclosure. Effective from the date of commencement of discussions concerning the Transaction, Issuer 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 Issuer relating to such tax treatment and tax structure. 
 (j) Additional Termination Events. The occurrence
of either one of the following shall constitute an Additional Termination Event with respect to which the Transaction shall be the sole Affected Transaction and Issuer shall be the sole Affected Party; provided that with respect to any of the
Additional Termination Events listed in this Section 8(j), Dealer may choose to treat part of the Transaction as the sole Affected Transaction, and, upon the termination of the Affected Transaction, a Transaction with terms identical to those
set forth herein except with a Number of Warrants equal to the unaffected number of Warrants shall be treated for all purposes as the Transaction, which shall remain in full force and effect: 

(i) Dealer reasonably determines, based on advice of counsel, that it is advisable to terminate a portion of the
Transaction so that Dealer’s related hedging activities will comply with applicable securities laws, rules or regulations or related policies and procedures of Dealer (whether or not such requirements, policies or procedures are imposed by law
or have been reasonably voluntarily adopted by Dealer), or Dealer, despite using commercially reasonable efforts, is unable or reasonably determines that it is impractical or illegal to hedge its obligations pursuant to this Transaction in the
public market without registration under the Securities Act or as a result of any legal, regulatory or self-regulatory requirements; 

(ii) any Person (as defined below) acquires beneficial ownership, directly or indirectly, through a purchase, merger or
other acquisition transaction or series of transactions, of shares of Issuer’s capital stock entitling the person to exercise 50% or more of the total voting 

 

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power of all shares of Issuer’s capital stock entitled to vote generally in elections of directors, other than an acquisition by Issuer, any of its subsidiaries or any of its employee
benefit plans; provided that this clause (ii) shall not apply to a merger of Issuer with or into a wholly-owned subsidiary of a corporation that, immediately following the transaction or series of transactions, has a class of common
stock or American Depositary Receipts in respect of common stock traded on a U.S. national securities exchange if immediately following the transaction or series of transactions (a) the holders of Shares immediately prior to the transaction are
entitled to exercise, directly or indirectly, 50% or more of the voting power of all shares of capital stock entitled to vote generally in the election of directors of such parent corporation and (b) such parent corporation fully and
unconditionally guarantees all obligations of such continuing or surviving corporation under Issuer’s notes and the indenture on a senior basis on terms and pursuant to a supplemental indenture satisfactory to the trustee; or 

(iii) Issuer (a) merges or consolidates with or into any other person (other than a subsidiary), another person
merges with or into Issuer, or Issuer conveys, sells, transfers or leases all or substantially all of its assets to another person or (b) engages in any recapitalization, reclassification or other transaction in which all or substantially all
of the Shares are exchanged for or converted into cash, securities or other property, in each case, other than any merger or consolidation: 

(A) that does not result in a reclassification, conversion, exchange or cancellation of the outstanding Shares;

 (B) pursuant to which holders of Shares immediately prior to the transaction are entitled to exercise,
directly or indirectly, 50% or more of the voting power of all shares of capital stock entitled to vote generally in the election of directors of either (a) the continuing or surviving corporation or (b) a corporation that directly or
indirectly owns 100% of the capital stock of such continuing or surviving corporation, in either case, immediately after such transaction; provided that, in the case of this clause (b), such parent corporation fully and unconditionally
guarantees all obligations of such continuing or surviving corporation under Issuer’s notes and the indenture on a senior basis on terms and pursuant to a supplemental indenture reasonably satisfactory to the trustee; or 

(C) which is effected solely to change Issuer’s jurisdiction of incorporation and results in a reclassification,
conversion or exchange of outstanding Shares solely into shares of common stock of the surviving entity. 
 Notwithstanding the
foregoing, a transaction set forth in clauses (ii) or (iii) above will not constitute an Additional Termination Event if at least 90% of the consideration paid for the Shares (excluding cash payments for fractional shares and cash payments
made pursuant to dissenters’ appraisal rights and cash dividends) in such purchase, merger, consolidation, other acquisition transaction or series of transactions, conveyance, sale, transfer, lease, recapitalization, reclassification or other
transaction otherwise constituting an Additional Termination Event under clause (ii) or (iii) above consists of shares of capital stock or American Depositary Receipts in respect of shares of capital stock traded on the New York Stock
Exchange or another U.S. national securities exchange (or which will be so traded immediately following the completion of the purchase, merger, consolidation, other acquisition transaction or series of transactions, conveyance, sale, transfer, lease
recapitalization, reclassification or other transaction) and, as a result of the completion of the purchase, merger, consolidation, other acquisition transaction or series of transactions, conveyance, sale, transfer, lease, recapitalization,
reclassification or other transaction in which all or substantially all Shares are exchanged for or converted into cash, securities or other property. 

For purposes of Section 8(j), whether a Person is a “beneficial owner” will be determined in accordance with Rule 13d-3
under the Exchange Act, and “Person” includes any syndicate or group that would be deemed to be a “person” under Section 13(d)(3) of the Exchange Act; 

 

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 (iv) There is a default, event of default or other similar condition or event (however
described) by Issuer under any obligation (whether present or future, contingent or otherwise, as principal or surety or otherwise) under the credit agreement, dated as of August 22, 2006, as amended, among the Issuer, several lenders that are
parties thereto and Bank of America, N.A. as administrative agent, or any successor or substitute agreement therefor (the “Credit Agreement”), which has resulted in any indebtedness under the Credit Agreement (or, if no amounts have
been drawn under the Credit Agreement, would have resulted in any drawn amounts) becoming due and payable under the Credit Agreement, before it would otherwise have been due and payable; or 

(v) So long as Issuer does not obtain the Shareholder Approval described in Section 8(e) of this Confirmation, at any time during
the period from and including the Trade Date, to and including the final Expiration Date, (1) the Number of Shares to be Delivered with respect to all Components of this Transaction that would be deliverable (determined as if such time were the
Valuation Time, such date were the Exercise Date and Valuation Date for a number of Warrants equal to the Number of Warrants as of such date, and Net Share Settlement applied) exceeds a number of Shares equal to 80% of the Capped Number, or
(2) Issuer makes a public announcement of any transaction or event that, in the reasonable opinion of Dealer would, upon consummation of such transaction or upon the occurrence of such event, as applicable, and after giving effect to any
applicable adjustments hereunder, cause the Number of Shares to be Delivered with respect to all Components of this Transaction immediately following the consummation of such transaction or the occurrence of such event (determined as if the time
immediately following the consummation of such transaction or the occurrence of such event were the Valuation Time, the date upon which such transaction is consummated or such event occurs were the Exercise Date and Valuation Date for a number of
Warrants equal to the Number of Warrants as of such Date, and Net Share Settlement applied) to exceed a number of Shares equal to 80% of the Capped Number. 

(k) Effectiveness. If, on or prior to the Effective Date, Dealer reasonably determines that it is advisable to cancel the
Transaction because of concerns that Dealer’s related hedging activities could be viewed as not complying with applicable securities laws, rules or regulations, the Transaction shall be cancelled and shall not become effective, and neither
party shall have any obligation to the other party in respect of the Transaction. 
 (l) Unwind Calculation. In
connection with any calculation of any amount pursuant to Section 6 of the Agreement or Section 12 of the Equity Definitions, for the avoidance of doubt, Dealer shall make any such calculations without taking into account the limitation
set forth in clause (ii) of the first sentence of Section 8(e) of this Confirmation. 
 (m) Extension of
Settlement. Dealer may divide any Component into additional Components and designate the Expiration Date and the Number of Warrants for each such Component if Dealer determines, in its reasonable discretion, that such further division is
necessary or advisable to preserve Dealer’s hedging or hedge unwind activity hereunder in light of existing liquidity conditions in the cash market or stock loan market or to enable Dealer to effect purchases of Shares in connection with its
hedging activity hereunder in a manner that would, if Dealer were Issuer or an affiliated purchaser of Issuer, based on advice of counsel be in compliance with applicable legal, regulatory and self-regulatory requirements or with related policies
and procedures applicable to Dealer. 
 (n) No Netting and Set-off. The provisions of Section 2(c) of the Agreement
shall not apply to the Transaction. Each party waives any and all rights it may have to set-off delivery or payment obligations it owes to the other party under the Transaction against any delivery or payment obligations owed to it by the other
party, whether arising under the Agreement, under any other agreement between parties hereto, by operation of law or otherwise. 

(o) Delivery of Cash. For the avoidance of doubt, nothing in this Confirmation shall be interpreted as requiring the Issuer to
deliver cash in respect of the settlement of the Transaction, except in circumstances where the required cash settlement thereof is permitted for classification of the contract as equity by EITF 00-19 as in effect on the relevant Trade Date
(including, without limitation, where the Issuer so elects to deliver cash or fails timely to elect to deliver Shares or Share Termination Delivery Property in respect of such settlement). 

 

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 (p) Amendment. This Confirmation and the Agreement may not be modified, amended or
supplemented, except in a written instrument signed by Issuer and Dealer. 
 (q) Counterparts. This Confirmation may be
executed in several counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. 

(r) Governing Law. THE AGREEMENT, THIS CONFIRMATION AND ALL MATTERS ARISING IN CONNECTION WITH THE AGREEMENT AND THIS
CONFIRMATION SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO ITS CHOICE OF LAW DOCTRINE, OTHER THAN TITLE 14 OF THE NEW YORK GENERAL OBLIGATIONS LAW). 

9. Waiver of Jury Trial. Each party waives, to the fullest extent permitted by applicable law, any right
it may have to a trial by jury in respect of any suit, action or proceeding relating to the Transaction. Each party (i) certifies that no representative, agent or attorney of the other party has represented, expressly or otherwise, that such
other party would not, in the event of such a suit, action or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other party have been induced to enter into the Transaction by, among other things, the mutual
waivers and certifications provided herein. 
 10. Submission to Jurisdiction.
Section 13(b) of the Agreement is deleted in its entirety and replaced by the following: 
 “Each party hereby
irrevocably and unconditionally submits for itself and its property in any suit, legal action or proceeding relating to the Agreement and/or the Transaction, or for recognition and enforcement of any judgment in respect thereof, (each,
“Proceedings”) to the exclusive jurisdiction of the Supreme Court of the State of New York, sitting in New York County, the courts of the United States of America for the Southern District of New York and appellate courts from any thereof.
Nothing in this Confirmation or the Agreement precludes either party from bringing Proceedings in any other jurisdiction if (A) the courts of the State of New York or the United States of America for the Southern District of New York lack
jurisdiction over the parties or the subject matter of the Proceedings or declines to accept the Proceedings on the grounds of lacking such jurisdiction; (B) the Proceedings are commenced by a party for the purpose of enforcing against the
other party’s property, assets or estate any decision or judgment rendered by any court in which Proceedings may be brought as provided hereunder; (C) the Proceedings are commenced to appeal any such court’s decision or judgment to
any higher court with competent appellate jurisdiction over that court’s decisions or judgments if that higher court is located outside the State of New York or Borough of Manhattan, such as a federal court of appeals or the U.S. Supreme Court;
or (D) any suit, action or proceeding has been commenced in another jurisdiction by or against the other party or against its property, assets or estate and, in order to exercise or protect its rights, interests or remedies under the Agreement
or this Confirmation, the party (1) joins, files a claim, or takes any other action, in any such suit, action or proceeding, or (2) otherwise commences any Proceeding in that other jurisdiction as the result of that other suit, action or
proceeding having commenced in that other jurisdiction.” 
  

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 Issuer hereby agrees (a) to check this Confirmation carefully and immediately upon
receipt so that errors or discrepancies can be promptly identified and rectified and (b) to confirm that the foregoing (in the exact form provided by Dealer) correctly sets forth the terms of the agreement between Dealer and Issuer with respect
to the Transaction, by manually signing this Confirmation or this page hereof as evidence of agreement to such terms and providing the other information requested herein and immediately returning an executed copy to Goldman, Sachs & Co.
Equity Derivatives Documentation Department, Facsimile No. (212) 428-1980/83. 
  

					
	Yours faithfully,
	
	GOLDMAN, SACHS & CO.
		
	By:	 	 /s/ Jonathan Lipnick

		 	Name:	 	Jonathan Lipnick
		 	Title:	 	VP


 Agreed and Accepted By: 

 

					
	NATIONAL FINANCIAL PARTNERS CORP.
		
	By:	 	 /s/ Donna Blank

		 	Name:	 	Donna Blank
		 	Title:	 	CFO