Exhibit 10.1


 


May 13, 2020


 


	From:	Morgan Stanley & Co. LLC
	 	1585 Broadway, 5th Floor
	 	New York, NY 10036




 


	To:	Plug Power Inc.
	 	968 Albany Shaker Road
	 	Latham, NY 12110
	 	Attention:	Gerard L. Conway Jr.
	 	Telephone No.:	(518) 738-0970
	 	Facsimile No.:	(518) 782-7884




 


		Re:	Base Call Option Transaction



 


The purpose of this
communication (this “Confirmation”) is to set forth the terms and conditions of the call option transaction
entered into on the Trade Date specified below (the “Transaction”) between Morgan Stanley & Co. LLC (“Dealer”)
and Plug Power Inc. (“Counterparty”). This communication constitutes a “Confirmation” as referred
to in the 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”). Certain defined terms used herein have
the meanings assigned to them in the preliminary Offering Memorandum dated May 13, 2020 (the “Offering Memorandum”)
relating to the USD200,000,000 principal amount of 3.75% Convertible Senior Notes due 2025 (the “Base Convertible Securities”)
issued by Counterparty (as increased by up to an additional USD30,000,000 principal amount of 3.75% Convertible Senior Notes due
2025 that may be issued pursuant to the option to purchase additional convertible securities (the “Optional Convertible
Securities” and, together with the Base Convertible Securities, the “Convertible Securities”)) pursuant
to an Indenture to be dated May 18, 2020 between Counterparty and Wilmington Trust, National Association, as trustee (the “Indenture”).
In the event of any inconsistency between the terms defined in 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 that are also defined herein by reference to the Indenture and (ii) sections of the Indenture that are referred
to herein, in each case, 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. For the avoidance of doubt, subject to the foregoing,
references herein to sections of the Indenture are based on the draft of the Indenture most recently reviewed by the parties at
the time of execution of this Confirmation. If any relevant sections of the Indenture are changed, added or renumbered between
the execution of this Confirmation and the execution of the Indenture, the parties will amend this Confirmation in good faith and
in a commercially reasonable manner to preserve the economic intent of the parties, as evidenced by such draft of the Indenture.
In addition, subject to the foregoing, the parties acknowledge that references to the Indenture herein are references to the Indenture
as in effect on the date of its execution, and if the Indenture is, or the Convertible Securities are, amended, modified or supplemented
following the date of their execution, any such amendment, modification or supplement (other than any amendment, modification or
supplement (i) pursuant to Section 14.07 of the Indenture, subject to the provisions opposite the caption “Discretionary
Adjustments” in Section 2 hereof, or (ii) pursuant to Section 10.01(n) of the Indenture that, as determined by the Calculation
Agent in good faith and in a commercially reasonable manner, conforms the Indenture to the description of Convertible Securities
in the Offering Memorandum) will be disregarded for purposes of this Confirmation unless the parties agree otherwise in writing.


 






     


     


    

 


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 Counterparty 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 Counterparty 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”, (iii) the election of the laws of the State of New York as the governing law (without reference
to choice of law doctrine), and (iv) the election that the “Cross Default” provisions of Section 5(a)(vi) of the Agreement
shall apply to Dealer with a “Threshold Amount” of three percent of Dealer’s parent’s shareholders’
equity; provided that (A) “Specified Indebtedness” shall not include obligations in respect of deposits received
in the ordinary course of Dealer’s banking business, (B) the phrase “or becoming capable at such time of being
declared” shall be deleted from clause (1) of such Section 5(a)(vi) and (C) the following language shall be
added to the end of such Section 5(a)(vi): “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.”).


 


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 among this Confirmation, the Equity Definitions, the 2006 Definitions or the Agreement, the following shall
prevail in the order of precedence indicated: (i) this Confirmation; (ii) the Equity Definitions; (iii) the 2006 Definitions; and
(iv) the Agreement. For the avoidance of doubt, except to the extent of an express conflict, the application of any provision of
this Confirmation, the Agreement, the Equity Definitions or the 2006 Definitions shall not be construed to exclude or limit any
other provision of this Confirmation, the Agreement, the Equity Definitions or the 2006 Definitions.


 


The Transaction hereunder
shall be the sole Transaction under the Agreement. If there exists any ISDA Master Agreement between Dealer and Counterparty or
any confirmation or other agreement between Dealer and Counterparty pursuant to which an ISDA Master Agreement is deemed to exist
between Dealer and Counterparty, then notwithstanding anything to the contrary in such ISDA Master Agreement, such confirmation
or agreement or any other agreement to which Dealer and Counterparty 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 constitutes 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:	May 13, 2020
	 	 
	Effective
    Date:	The closing date of the
    initial issuance of the Convertible Securities.
	 	 
	Option
    Style:	Modified American, as
    described under “Procedures for Exercise” below.



 






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	Option
    Type:	Call
	 	 
	Seller:	Dealer
	 	 
	Buyer:	Counterparty
	 	 
	Shares:	The Common Stock of Counterparty,
                                     par value USD0.01 (Ticker Symbol: “PLUG”).
	 	 
	Number of Options:	200,000. For the avoidance of doubt, the Number of Options outstanding shall be reduced by each exercise of Options hereunder. In no event will the Number of Options be less than zero.
	 	 
	Applicable Percentage:	50%
	 	 
	Option Entitlement:	A number equal to the product of the Applicable Percentage and 198.6196.
	 	 
	Make-Whole Adjustment:	Any adjustment to the Conversion Rate pursuant to Section 14.03 of the Indenture.
	 	 
	Discretionary Conversion Rate Increase:	Any adjustment to the Conversion Rate pursuant to Section 14.04(h) of the Indenture.
	 	 
	Strike Price:	USD5.0347
	 	 
	Cap Price:	USD6.5760
	 	 
	Rounding of Strike Price/Cap Price/Option Entitlement:	In connection with any adjustment to the Option Entitlement, Strike Price or Cap Price, the Calculation Agent will round the adjusted Option Entitlement to the nearest 0.0001 and the adjusted Strike Price or Cap Price to the nearest USD0.0001, as the case may be.
	 	 
	Number of Shares:	As of any date, a number of Shares equal to the product of the Number of Options and the Option Entitlement.
	 	 
	Premium:	USD7,650,000
	 	 
	Premium Payment Date:	The Effective Date
	 	 
	Exchange:	The NASDAQ Capital Market
	 	 
	Related Exchange:	All Exchanges




 


Procedures
for Exercise:


 


	Exercise
    Dates:	Each Conversion
    Date.
	 	 
	Conversion
    Date:	With
    respect to any conversion of a Convertible Security (other than (x) any conversion of Convertible Securities with a “Conversion
    Date” (as defined in the Indenture) occurring prior to the Free Convertibility Date or (y) any conversion of Convertible
    Securities in respect of which holder(s) of such Convertible Securities would be entitled to an increase in the Conversion
    Rate pursuant to a Make-Whole Adjustment (any such conversion described in clause (x) or clause (y), an “Early
    Conversion”), to which the provisions of Section 8(b)(iii) of this Confirmation shall
    apply), the date on which the holder of such Convertible Security satisfies all of the requirements for conversion thereof
    as set forth in Section 14.02(b) of the Indenture, provided
    that no Conversion Date shall be deemed to have occurred with respect to Exchanged Securities
    (such Convertible Securities, other than Exchanged Securities, the “Relevant
    Convertible Securities” for such Conversion Date).



 






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	Free
    Convertibility Date:	December 1, 2024
	 	 
	Exchanged
    Securities:	With respect to any Conversion
    Date, any Convertible Securities with respect to which Counterparty makes the election described in Section 14.12 of the Indenture
    and the financial institution designated by Counterparty accepts such Convertible Securities in accordance with Section 14.12
    of the Indenture, as long as Counterparty does not submit a Notice of Exercise in respect thereof.
	 	 
	Expiration
    Time:	The Valuation Time
	 	 
	Expiration
    Date:	June 1, 2025, subject to earlier exercise
	 	 
	Automatic
    Exercise on Conversion Dates:	Applicable, which means
    that on each Conversion Date occurring on or after the Free Convertibility Date, a number of Options equal to the number of
    Relevant Convertible Securities for such Conversion Date in denominations of USD1,000 principal amount shall be automatically
    exercised, subject to “Notice of Exercise” below.
	 	 
	Notice
    Deadline:	In respect of any exercise
    of Options hereunder on any Conversion Date on or after the Free Convertibility Date, 5:00 P.M., New York City time, on the
    Scheduled Trading Day immediately preceding the Expiration Date.
	 	 
	Notice
    of Exercise:	Counterparty shall notify
    Dealer in writing prior to the Notice Deadline of the number of Relevant Convertible Securities being converted on the related
    Conversion Date. If Counterparty fails to give such notice when due in respect of any exercise of Options hereunder with a
    Conversion Date occurring on or after the Free Convertibility Date, Automatic Exercise shall apply and the Conversion Date
    shall be deemed to be the Notice Deadline.



 






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	Notice
    of Final Settlement Method:	In addition,
    Counterparty shall notify Dealer in writing before 5:00 P.M., New York City time, on the Scheduled Trading Day immediately
    preceding the Free Convertibility Date of the Relevant Settlement Method with respect to each Option exercised hereunder relating
    to Relevant Convertible Securities with a Conversion Date occurring on or after the Free Convertibility Date, the settlement
    method for such Relevant Convertible Securities and, if the settlement method for such Relevant Convertible Securities is
    not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Relevant Convertible
    Security (the “Specified Dollar Amount”) that Counterparty has elected (or is deemed to have elected) to
    deliver to holder(s) of such Relevant Convertible Securities (any such notice, a “Notice of Final Settlement Method”);
    provided that, if Counterparty does not timely deliver the Notice of Final Settlement Method, then the Notice of Final
    Settlement Method shall be deemed timely given and the Relevant Settlement Method shall be Net Share Settlement (and, for
    the avoidance of doubt, the Settlement Averaging Period shall be determined without regard to the proviso in the definition
    thereof), and Counterparty shall not specify Settlement in Shares or Low Cash Combination Settlement as the settlement method
    for any Relevant Convertible Securities. Counterparty acknowledges its responsibilities under applicable securities laws,
    and in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, in respect of
    any settlement method election (including any such deemed settlement method election as set forth in the proviso in the immediately
    preceding sentence).
	 	 
	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.
	 	 
	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 U.S. 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 Trading 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 traded on any U.S. exchange relating to the Shares.”
	 	 
	Dealer’s
    Contact Details for purpose of Giving Notice:	As specified in Section
    6(b) below.



 






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	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 to settle its conversion obligations in respect of the related
                                         Relevant Convertible Security (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
                                         USD1,000 (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 USD1,000, 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 Relevant Convertible Security 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 USD1,000,
then the Relevant Settlement Method for such Option shall be Combination Settlement; and


 


(iii)         if
Counterparty has elected to settle its conversion obligations in respect of the related Relevant Convertible Security 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 Trading Day during
    the Settlement Averaging Period for each such Option, of (i) (a) the Daily Option Value for such Trading Day, divided
    by (b) the Relevant Price on such Trading Day, divided by (ii) the number of Trading Days in the Settlement Averaging
    Period.



 






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	 	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 Trading Day of the
    Settlement Averaging Period.
	 	 
	Combination Settlement:	If Combination Settlement is applicable to any Option exercised
    or deemed 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 Trading
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 USD1,000
and (2) the Daily Option Value, divided by (B) the number of Trading Days in the Settlement Averaging Period; provided
that if the calculation in clause (A) above results in zero or a negative number for any Trading Day, the Daily Combination Settlement
Cash Amount for such Trading Day shall be deemed to be zero; and



 


		(ii)	Shares (the “Combination Settlement Share Amount”) equal to the sum, for each
Trading Day during the Settlement Averaging Period for such Option, of a number of Shares for such Trading Day (the “Daily
Combination Settlement Share Amount”) equal to (A) (1) the Daily Option Value on such Trading Day minus the
Daily Combination Settlement Cash Amount for such Trading Day, divided by (2) the Relevant Price on such Trading Day, divided
by (B) the number of Trading 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 Trading Day, the Daily Combination Settlement Share Amount for such Trading
Day shall be deemed to be zero.
	 	 	 
	 	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 Trading Day of the Settlement Averaging Period.



 






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	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 Trading Day during the Settlement Averaging Period for such Option, of (i) the Daily Option Value for such Trading Day, divided by (ii) the number of Trading Days in the Settlement Averaging Period.  
	 	 
	Daily Option Value:	For any Trading Day, an amount equal to (i) the Option Entitlement on such Trading Day, multiplied by (ii) (A) the lesser of the Relevant Price on such Trading Day and the Cap Price, less (B) the Strike Price on such Trading Day; provided that if the calculation contained in clause (ii) above results in a negative number, the Daily Option Value for such Trading Day shall be deemed to be zero.  In no event will the Daily Option Value be less than zero.
	 	 
	Trading 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 U.S. national or regional securities exchange on which the Shares are then listed or, if the Shares are not then listed on a U.S. 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, “Trading Day” means a Business Day.
	 	 
	Scheduled Trading Day:	A day that is scheduled to be a Trading Day on the principal U.S. 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 Trading 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 Trading Day, the per Share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page “PLUG  <equity> AQR” (or its equivalent successor if such page is not available) in respect of the period from the scheduled open of trading to the scheduled close of trading of the primary trading session on such Trading Day (or if such volume-weighted average price is unavailable, the market value of one Share on such Trading Day, as determined by the Calculation Agent 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.



 






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	Settlement Averaging Period:	For any Option, the 40 consecutive Trading Days commencing on, and including, the 41st Scheduled Trading 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 Relevant Convertible Security, the Settlement Averaging Period shall be the 80 consecutive Trading Days commencing on, and including, the 81st Scheduled Trading Day immediately prior to the Expiration Date.
	 	 
	Settlement Date:	For any Option, the second Business Day immediately following the final Trading Day of the Settlement Averaging Period for such Option.
	 	 
	Settlement Currency:	USD
	 	 
	Other Applicable Provisions: 	The provisions of Sections 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.
	 	 
	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”)).







 






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	Adjustments:	



 





	Method of Adjustment:	Notwithstanding Section 11.2 of the Equity Definitions, upon the occurrence of any event or condition set forth in the Dilution Adjustment Provisions (a “Potential Adjustment Event”) that requires an adjustment under the Indenture, the Calculation Agent shall, in good faith and in a commercially reasonable manner, make a corresponding adjustment in respect of any one or more of the Strike Price, the Number of Options, the Option Entitlement and any other term relevant to the exercise, settlement or payment of the Transaction, to the extent an analogous adjustment is required under the Indenture, subject to “Discretionary Adjustments” below.  Immediately upon the occurrence of any Potential Adjustment Event, Counterparty shall notify the Calculation Agent of such Potential Adjustment Event.
	 	 
		Notwithstanding anything to the contrary herein or in the Equity Definitions:
	 	 
	 	(i) 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 reasonable costs (solely related to hedging mismatches and market losses) and commercially reasonable  out-of-pocket expenses incurred by Dealer in connection with its commercially reasonable hedging activities as a result of such event or condition not having been publicly announced prior to the beginning of such period; and
	 	 
	 	(ii) 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 reasonable costs (solely related to hedging mismatches and market losses) and commercially reasonable out-of-pocket  expenses incurred by Dealer in connection with its commercially reasonable hedging activities as a result of such Potential Adjustment Event Change.



 






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	 	Upon the occurrence of any Potential Adjustment Event Change, Counterparty shall immediately notify the Calculation Agent in writing of the details of such Potential Adjustment Event Change.



 


	 	For the avoidance of doubt, Dealer shall not have any payment or delivery obligation hereunder in respect of, 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 the holders of Convertible Securities (upon conversion or otherwise) or (y) any other transaction in which holders of Convertible Securities are entitled to participate, in each case, in lieu of an adjustment under the Indenture in respect of a Potential Adjustment Event (including, without limitation, under the fifth sentence of Section 14.04(c) of the Indenture or the fourth sentence of Section 14.04(d) of the Indenture).
	 	 
	Dilution Adjustment Provisions:	Sections 14.04(a), (b), (c), (d) and (e) and Section 14.05 of the Indenture
	 	 
	Discretionary Adjustments:	Notwithstanding anything to the contrary herein or in the Equity Definitions, if the Calculation Agent in good faith disagrees with any adjustment under the Indenture that is the basis of any adjustment hereunder and that involves an exercise of discretion by Counterparty, its board of directors or a committee of its board of directors (including, without limitation, pursuant to Section 14.05 of the Indenture or pursuant to Section 14.07 of the Indenture or any supplemental indenture entered into thereunder or in connection with the determination of the fair value of any securities, property, rights or other assets), then the Calculation Agent will determine the corresponding 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 of or under the Transaction in good faith and in a commercially reasonable manner consistent with the methodology set forth in the Indenture.  In addition, notwithstanding the foregoing, if any Potential Adjustment Event occurs during the Settlement Averaging Period but no adjustment was made to any Convertible Security under the Indenture because the relevant holder of such Convertible Security was deemed to be a record owner of the underlying Shares on the related Conversion Date, then the Calculation Agent shall, in good faith and in a commercially reasonable manner, make an adjustment, consistent with the methodology set forth in the Indenture as determined by it, to the terms hereof in order to account for such Potential Adjustment Event.  For the avoidance of doubt, Dealer’s payment and/or delivery obligation hereunder shall be calculated on the basis of such adjustments by the Calculation Agent.



 






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	Extraordinary Events:	 
	 	 
	Merger Events:	Notwithstanding Section 12.1(b) of the Equity Definitions, “Merger Event” shall have the meaning given to the term “Share Exchange Event” in Section 14.07 of the Indenture.
	 	 
	Consequences of Merger Events/Tender Offers:	Notwithstanding Section 12.2 of the Equity Definitions, upon the occurrence of a Merger Event, the Calculation Agent, acting in good faith and commercially reasonably, shall make a corresponding adjustment in respect of any adjustment under the Indenture to any one or more of the nature of the Shares, the Number of Options, the Option Entitlement, composition of the “Shares” hereunder and any other variable relevant to the exercise, settlement or payment for the Transaction, to the extent an analogous adjustment is required under Section 14.07 of the Indenture in respect of such Merger Event, as determined in good faith and in a commercially reasonable manner by the Calculation Agent by reference to such Section, subject to “Discretionary Adjustments” above; provided that such adjustment shall be made without regard to any adjustment to the Conversion Rate pursuant to a Make-Whole Adjustment or a Discretionary Conversion Rate Increase; provided further that in respect of any election by the holders of Shares with respect to the consideration due upon consummation of any Merger Event, the Calculation Agent shall have the right to adjust any variable relevant to the exercise, settlement or payment for the Transaction as appropriate to compensate Dealer for any losses (which shall be limited to market losses customary for transactions similar to the Transaction with counterparties similar to Counterparty) solely as a result of any mismatch on its Hedge Position, assuming Dealer maintains a commercially reasonable Hedge Position, and the type and amount of consideration actually paid or issued to the holders of Shares in respect of such Merger Event; and 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) securities issued by an entity that is not a corporation 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, will not be a corporation organized under the laws of the United States, any State thereof or the District of Columbia or will not be the Issuer, Dealer may elect in its commercially reasonable discretion that Cancellation and Payment (Calculation Agent Determination) shall apply.  For the avoidance of doubt, adjustments shall be made pursuant to the provisions set forth above regardless of whether any Merger Event gives rise to an Early Conversion. For purposes of this paragraph, “Tender Offer” means the occurrence of any event or condition set forth in Section 14.04(e) of the Indenture.



 






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	Notice of Merger Consideration:	Upon the occurrence of a Merger Event, Counterparty shall reasonably promptly (but in any event prior to consummation of such Merger Event) notify the Calculation Agent of, in the case of a Merger Event that causes the Shares to be converted into the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), the weighted average of the types and amounts of consideration actually received by holders of Shares upon consummation of such Merger Event.  
	 	 
	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 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, in good faith and in a commercially reasonable manner, determine whether the relevant Announcement Event has had an economic effect on the Transaction (and, if so, may 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.  An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, to which Article 12 of the Equity Definitions is applicable. 



 






    13


     


    

 


	Announcement Event:	(i) The public announcement by Issuer, any subsidiary of Issuer, any affiliate of Issuer, any agent of Issuer or a Valid Third Party Entity of (x) any transaction or event that, if completed, would constitute a Merger Event or Tender Offer, (y) any potential acquisition or disposition by Issuer and/or its subsidiaries where the aggregate consideration exceeds 30% of the market capitalization of Issuer as of the date of such announcement (a “Transformative Transaction”) or (z) the intention to enter into a Merger Event or Tender Offer or a Transformative 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 a Transformative Transaction or (iii) any subsequent public announcement by Issuer, any subsidiary of Issuer, any affiliate of Issuer, any agent of Issuer or a Valid Third Party Entity of a change to a transaction or intention that is the subject of an announcement of the type described in clause (i) or (ii) of this sentence (including, without limitation, a new announcement, whether or not by the same party, relating to such a transaction or intention or the announcement of a withdrawal from, or the abandonment or discontinuation of, such a transaction or intention), as determined by the Calculation Agent.  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. 
	 	 
	Valid Third Party Entity:	In respect of any transaction, any third party that the Calculation Agent determines has a bona fide intent to enter into or consummate such transaction (it being understood and agreed that in determining whether such third party has such a bona fide intent, the Calculation Agent may take into consideration the effect of the relevant announcement by such third party on the Shares and/or options relating to the Shares and, if such effect is material, may deem such third party to have a bona fide intent to enter into or consummate such transaction).  



 






    14


     


    

 


	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 Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market, The NASDAQ Global Market or The NASDAQ Capital 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, the 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 the Transaction (or the cancelled or terminated portion thereof) being the Affected Transaction and Counterparty 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.







 


Additional Disruption
Events:


 





	(a)    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) adding the phrase “and/or Hedge Position” after the word “Shares” in clause (X) thereof and (iii) immediately following the word “Transaction” in clause (X) thereof, adding the phrase “in the manner contemplated by the Hedging Party on the Trade Date”; and provided further that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) 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 or promulgation of new regulations authorized or mandated by existing statute)” and (ii) adding the words “, or holding, acquiring or disposing of Shares or any Hedge Positions relating to,” after the words “obligations under” in clause (Y) thereof.
	 	 
	(b)    Failure to Deliver:	Applicable
	 	 
	(c)    Insolvency Filing:	Applicable



 






    15


     


    

 


 


	(d)    Hedging
Disruption:	Applicable; provided that:
	 	 
	 	(i) Section 12.9(a)(v) of the Equity Definitions is hereby amended by inserting the following sentence at the end of such Section: 
	 	 
	 	“For the avoidance of doubt, (i) the term “equity price risk” shall be deemed to include, but shall not be limited to, stock price and volatility risk, and (ii) the transactions or assets referred to in phrases (A) or (B) above must be available on commercially reasonable pricing and other 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”.
	 	 
	(e)    Increased Cost of Hedging:	Not Applicable
	 	 
	Hedging Party:	Dealer
	 	 
	Determining Party:	Dealer; provided that the Determining Party will promptly, upon written notice from Counterparty, provide a statement displaying in reasonable detail the basis for such determination, adjustment or calculation, as the case may be (including any quotations, market data or information from internal or external sources used in making such determination, adjustment or calculation, it being understood that the Determining Party shall not be required to disclose any confidential information or proprietary models used by it in connection with such determination, adjustment or calculation, as the case may be).
	 	 
	Non-Reliance:	Applicable
	 	 
	Agreements and Acknowledgments Regarding Hedging Activities:	Applicable
	 	 
	Additional Acknowledgments:	Applicable
	 	 
	Hedging Adjustment:	For the avoidance of doubt, whenever Dealer, Determining Party or the Calculation Agent is permitted to make an adjustment pursuant to the terms of this Confirmation or the Equity Definitions to take into account the effect of any event (other than an adjustment made by reference to the Indenture), the Calculation Agent, Determining Party or Dealer, as the case may be, shall make such adjustment by reference to the effect of such event on Dealer assuming that Dealer maintains a commercially reasonable hedge position.



 






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	3.    Calculation Agent:	Dealer;
provided that all calculations and determinations by the Calculation Agent (other than calculations or determinations made
by reference to the Indenture) shall be made in good faith and in a commercially reasonable manner and assuming for such purposes
that Dealer is maintaining, establishing and/or unwinding, as applicable, a commercially reasonable hedge position; provided
further that if 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 occurs, Counterparty shall have the right to appoint a successor calculation agent which shall be
a nationally recognized third-party dealer in over-the-counter corporate equity derivatives. Calculation Agent agrees that it
will promptly, upon written notice from Counterparty, provide a statement displaying in reasonable detail the basis for such determination,
adjustment or calculation, as the case may be (including any quotations, market data or information from internal or external
sources used in making such determination, adjustment or calculation, it being understood that the Calculation Agent shall not
be required to disclose any confidential information or proprietary models used by it in connection with such determination, adjustment
or calculation, as the case may be).



 


		4.	Account Details:



 


Dealer Payment
Instructions:


 


To be provided
by Dealer.


 


Counterparty
Payment Instructions:


 


To be provided
by Counterparty.


 


		5.	Offices:



 


The Office
of Dealer for the Transaction is: New York


 


Morgan Stanley
 & Co. LLC


1585 Broadway,
5th Floor


New York,
NY 10036


 


The Office
of Counterparty for the Transaction is:


 


Inapplicable, Counterparty is not a Multibranch Party


 


		6.	Notices: For purposes of this Confirmation:



 


		(a)	Address for notices or communications to Counterparty:



 


	To:	Plug Power Inc.
	 	968 Albany Shaker Road
	 	Latham, NY 12110
	Attn:	Gerard L. Conway Jr.
	Telephone:	(518) 738-0970
	Email:	gconway@plugpower.com
	 	 
	with a copy to:	 
	 	 
	Goodwin Procter LLP
	The New York Times Building
	620 Eighth Avenue
	New York, NY 10018
	Attn:	John S. Servidio
	Telephone:	(212) 813-8964
	Email:	JServidio@goodwinlaw.com




 






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		(b)	Address for notices or communications to Dealer:



 


		To:	Morgan Stanley & Co. LLC
	 	 	1585 Broadway, 4th Floor
	 	 	New York, NY 10036
		Attn:	Usman Khan
		Telephone:	(212) 761-0955
		Facsimile:	(212) 404-9480
		Email:	Usman.S.Khan@morganstanley.com
	 	 	 
	 	With a copy to:	Morgan Stanley
 & Co. LLC
	 	 	1221 Avenue of the Americas, 34th
Floor
	 	 	New York, NY 10020
		Attn:	Steven Seltzer
		Telephone:	(212) 761-1719
		Facsimile:	(212) 404-9480
	 	Email:
	Steven.Seltzer1@morganstanley.com



 


7.     
Representations, Warranties and Agreements:


 


(a)           In
addition to the representations and warranties in the Agreement and those contained elsewhere herein, Counterparty 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 Notice of Share Termination under (and as defined in) Section 8(c) below, (A) Counterparty
is not aware of any material nonpublic information regarding Counterparty or the Shares and (B) all reports and other documents
filed by Counterparty with the Securities and Exchange Commission 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)           (A)
On the Trade Date, the Shares or securities that are convertible into, or exchangeable or exercisable for Shares, are not subject
to a “restricted period,” as such term is defined in Regulation M under the Exchange Act (“Regulation M”)
and (B) Counterparty 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.


 


(iii)          Without
limiting the generality of Section 13.1 of the Equity Definitions, Counterparty 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).


 


(iv)          Without
limiting the generality of Section 3(a)(iii) of the Agreement, the Transaction will not violate Rule 13e-1 or Rule 13e-4 under
the Exchange Act.


 






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(v)           Prior
to the Trade Date, Counterparty shall deliver to Dealer a resolution of Counterparty’s board of directors authorizing the
Transaction.


 


(vi)          Counterparty
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.


 


(vii)         Counterparty
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.


 


(viii)        On
each of the Trade Date and the Premium Payment Date, 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
Counterparty would be able to purchase the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s
incorporation.


 


(ix)           The
representations and warranties of Counterparty set forth in Section 3 of the Agreement and Section 1 of the Purchase Agreement,
dated as of May 13, 2020, between Counterparty and Morgan Stanley & Co. LLC, as representative of the Initial Purchasers party
thereto (the “Purchase Agreement”), are true and correct as of the Trade Date and the Effective Date and are
hereby deemed to be repeated to Dealer as if set forth herein.


 


(x)            To
the knowledge of Counterparty, 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 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; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable
generally to the ownership of equity securities by Dealer or any of its affiliates solely as a result of it or any of such affiliates
being financial institutions or broker-dealers.


 


(xi)           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 USD50 million.


 


(b)           Each
of Dealer and Counterparty agrees and represents that it is an “eligible contract participant” as defined in Section
1a(18) 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 Counterparty 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(a)(2) thereof. Accordingly,
Counterparty represents and warrants to Dealer 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.


 






    19


     


    

 


(d)           Each
of Dealer and Counterparty agrees and acknowledges that Dealer is a “financial institution” and “financial participant”
within the meaning of Sections 101(22) and 101(22A) of the Bankruptcy Code. The parties hereto further agree and acknowledge (A)
that this Confirmation is 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 (B) that Dealer is entitled to the protections afforded
by, among other sections, Sections 362(b)(6), 362(b)(27), 362(o), 546(e), 546(j), 548(d)(2), 555 and 561 of the Bankruptcy Code.


 


(e)            As
a condition to the effectiveness of the Transaction, Counterparty shall deliver to Dealer an opinion of counsel, dated as of the
Premium Payment Date and reasonably acceptable to Dealer in form and substance, with respect to the matters set forth in Section
3(a) of the Agreement and Section 7(a)(vii) hereof; provided that any such opinion of counsel may contain customary exceptions
and qualifications, including, without limitation, exceptions and qualifications relating to indemnification provisions.


 


(f)            Counterparty
understands that notwithstanding any other relationship between Counterparty and Dealer and its affiliates, in connection with
this Transaction and any other over-the-counter derivative transactions between Counterparty 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.


 


(g)           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”.


 


(h)           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, in each case,
to the extent such rules are applicable to such party.


 


(i)             Counterparty
acknowledges that the Transaction may constitute a purchase of its equity securities. Counterparty further acknowledges that, pursuant
to the provisions of the Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”), the Counterparty
would be required to agree to certain time-bound restrictions on its ability to purchase its equity securities 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 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 for the purpose of providing liquidity to the financial system
(together with loans, loan guarantees or direct loans under section 4003(b) of the CARES Act, “Governmental Financial
Assistance”). Accordingly, Counterparty represents and warrants that it has not applied for, and prior to the termination
or settlement of this Transaction has no intention to apply for Governmental Financial Assistance under any governmental program
or facility that (a) is established under the CARES Act or the Federal Reserve Act, as amended, and (b) requires, as a condition
of such Governmental Financial Assistance, 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.


 






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8.    
Other Provisions:


 


(a)           Right
to Extend. Dealer may postpone or add, in whole or in part, any Trading Day or Trading 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 relevant Options (in which
event the Calculation Agent, in good faith and in a commercially reasonable manner, shall make appropriate adjustments to Dealer’s
payment and/or delivery obligation hereunder), if Dealer determines, in good faith and in a commercially reasonable manner, and,
in respect of clause (ii) below, based on the advice of counsel, that such extension is reasonably necessary or appropriate (i)
to preserve Dealer’s commercially reasonable hedging or hedge unwind activity hereunder in light of existing liquidity conditions
in the cash market, the stock borrow market or other relevant market (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 purchases or sales of Shares or Share Termination
Delivery Units in connection with its commercially reasonable hedging, hedge unwind or settlement activity hereunder in a manner
that would (assuming, in the case of purchases, 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 (whether or not such
requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer and, in the case of policies
or procedures, so long as such policies or procedures are consistently applied to transactions similar to the Transaction); provided
that no such Trading Day or other date of valuation, payment or delivery may be postponed or added more than 40 Trading Days after
the original Trading Day or other date of valuation, payment or delivery, as the case may be.


 


(b)            Additional
Termination Events.


 


(i)            The
occurrence of an event of default with respect to Counterparty under the terms of the Convertible Securities as set forth in Section
6.01 of the Indenture, which default has resulted in the Convertible Securities becoming due and payable under the terms thereof,
shall constitute an Additional Termination Event with respect to which the Transaction is the sole Affected Transaction and Counterparty
is the sole Affected Party, and Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b)
of the Agreement and to determine the amount payable pursuant to Section 6(e) of the Agreement.


 


(ii)           Within
five (5) Scheduled Trading Days promptly following any Repayment Event (as defined below), Counterparty may notify Dealer of such
Repayment Event and the aggregate principal amount of Convertible Securities subject to such Repayment Event (any such notice,
a “Repayment Notice”). Any Repayment Notice shall contain a written representation by Counterparty to Dealer
that Counterparty is not, on the date of such Repayment Notice, 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 8(b)(ii). 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) the aggregate principal amount of
such Convertible Securities specified in such Repayment Notice, divided by USD 1,000, 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 Securities are repurchased
(whether pursuant to Section 15.02 of the Indenture, pursuant to Section 16.01 of the Indenture or for any other reason) by Counterparty
or any of its subsidiaries, (ii) any Convertible Securities 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 Securities
is repaid prior to the final maturity date of the Convertible Securities, or (iv) any Convertible Securities are exchanged by or
for the benefit of the Holders (as such term is 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 Securities pursuant to the terms of the Indenture shall not constitute
a Repayment Event.


 






    21


     


    

 


(iii)           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 may, within five (5) Scheduled Trading Days
of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to
Dealer (which Early Conversion Notice shall contain a written representation by Counterparty to Dealer that Counterparty is not,
on the date of such Early Conversion Notice, in possession of any material non-public information with respect to Counterparty
or the Shares) specifying the number of Convertible Securities surrendered for conversion on such Conversion Date (such Convertible
Securities, the “Affected Convertible Securities”), and the giving of such Early Conversion Notice shall constitute
an Additional Termination Event as provided in this Section 8(b)(iii);



 


		(B)	upon receipt of any such Early Conversion Notice, Dealer
shall promptly designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier
than one Scheduled Trading Day following the Conversion Date for such Early Conversion) 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 Securities and (y) the Number of Options as of the Conversion Date for such Early Conversion; provided
that settlement with respect to any such Early Termination Date shall occur on or as promptly as commercially reasonably practicable
after the date of payment of the amount of cash (if any) and/or delivery of the number of Shares (if any) upon settlement of the
conversion of the relevant Affected Convertible Securities.



 


		(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;



 


		(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 adjustment to the conversion rate for the Convertible Securities has occurred pursuant to any Make-Whole Adjustment or Discretionary
Conversion Rate Increase and (z) the corresponding Convertible Securities 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.



 






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(c)            Alternative
Calculations and Payment on Early Termination and on Certain Extraordinary Events. If Dealer shall owe Counterparty any amount
pursuant to Section 6(d)(ii) of the Agreement (a “Payment Obligation”), Counterparty shall have the right, in
its sole discretion, to require Dealer 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 (which written
confirmation shall contain the representation and warranty set forth in Section 7(a)(i)), no later than 9:30 A.M., New York City
time, on the relevant Early Termination Date or date of cancellation or termination in respect of an Extraordinary Event, as applicable
(“Notice of Share Termination”); provided that if Counterparty does not elect to require Dealer to satisfy
its Payment Obligation by the Share Termination Alternative, Dealer shall have the right, in its sole discretion, to elect to satisfy
its Payment Obligation by the Share Termination Alternative, notwithstanding Counterparty’s failure to elect or election
to the contrary; and provided further that Counterparty 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 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 Counterparty is the Defaulting Party or a Termination Event in which Counterparty is the Affected Party or
an Extraordinary Event, which Event of Default, Termination Event or Extraordinary Event resulted from an event or events within
Counterparty’s control. Upon such Notice of Share Termination, the following provisions shall apply on the Scheduled Trading
Day immediately following the relevant merger date, Announcement Date, Early Termination Date or date of cancellation or termination
in respect of an Extraordinary Event, as applicable:


 





	Share Termination
Alternative:	If applicable, means that Dealer shall deliver to Counterparty the Share Termination Delivery Property on the
date on which the Payment Obligation would otherwise be due pursuant to Section 6(d)(ii) of the Agreement or such later date or
dates as Dealer may commercially reasonably determine (the “Share Termination Payment Date”) taking into account
commercially reasonable hedging or hedge unwind activity, in satisfaction of the Payment Obligation.
	 	 
	Share Termination Delivery Property:	A number of Share Termination Delivery Units, as calculated by the Calculation Agent in good faith
and in a commercially reasonable manner, equal to the Payment Obligation divided by the Share Termination Unit Price. The Calculation
Agent shall, in good faith and in a commercially reasonable manner, adjust the Share Termination Delivery Property by replacing
any fractional portion of the aggregate amount 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 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 a commercially reasonable manner and notified by the Calculation Agent to Dealer at the time of notification of the Payment Obligation.
	 	 
	Share Termination Delivery Unit:	In the case of a Termination Event (other than on account of an Insolvency, Nationalization or Merger Event), Event of Default, Delisting or Additional Disruption Event, one Share or, in the case of an Insolvency, Nationalization or Merger Event, 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 or Merger Event, as applicable. If such Insolvency, Nationalization or Merger Event 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.



 






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	Failure to Deliver:	Applicable
	 	 
	Other Applicable Provisions:	If Share Termination Alternative is applicable,
    the provisions of Sections 9.8, 9.9 and 9.11 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 applicable securities laws as a result of the fact that Counterparty is the issuer of any Share Termination
    Delivery Units (or any part thereof).




 


(d)           Disposition
of Hedge Shares. Counterparty hereby agrees that if, in the good faith reasonable judgment of Dealer, based on the advice of
counsel, the Shares (the “Hedge Shares”) acquired by Dealer for the purpose of hedging its obligations pursuant
to the Transaction in a commercially reasonable manner cannot be sold in the U.S. public market by Dealer without registration
under the Securities Act, Counterparty shall, at its election: (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 to cover the resale of such Hedge
Shares and (A) enter into an agreement, in form and substance reasonably satisfactory to Dealer, substantially in the form of an
underwriting agreement for a registered offering, (B) provide accountant’s “comfort” letters in customary
form for registered offerings of equity securities, (C) provide disclosure opinions of nationally recognized outside counsel to
Counterparty reasonably acceptable to Dealer, (D) provide other customary opinions, certificates and closing documents customary
in form for registered offerings of equity securities and (E) afford Dealer a reasonable opportunity to conduct a “due diligence”
investigation with respect to Counterparty customary in scope for underwritten offerings of equity securities (in all cases of
(A)-(E) above, as would be usual and customary for offerings for companies of similar size and industry); provided that
if Counterparty elects clause (i) above but the items referred to therein are not completed in a timely manner, or if Dealer, in
its commercially 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 Section 8(d) 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 industry, in form and substance commercially reasonably satisfactory
to Dealer, including using best efforts to include customary representations, covenants, blue sky and other governmental filings
and/or registrations, indemnities to Dealer, due diligence rights (for Dealer or any designated buyer of the Hedge Shares from
Dealer), and best efforts obligations to provide opinions and certificates and such other documentation as is customary for private
placements agreements for transactions of similar size and type, as is commercially reasonably acceptable to Dealer (in which case,
the Calculation Agent shall make any adjustments to the terms of the Transaction that are necessary, in its good faith, commercially
reasonable judgment, to compensate Dealer for any commercially reasonable discount from the public market price of the Shares incurred
on the sale of Hedge Shares in a private placement); 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), commercially reasonably requested by Dealer. This
Section 8(d) shall survive the termination, expiration or early unwind of the Transaction.


 






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(e)            Repurchase
and Conversion Rate Adjustment Notices. Counterparty shall, at least two Exchange Business Days prior to any day on which Counterparty
effects any repurchase of Shares or consummates or otherwise engages in any transaction or event (a “Conversion Rate Adjustment
Event”) that could reasonably be expected to lead to an increase in the “Conversion Rate” (as defined in
the Indenture), give Dealer a written notice of such repurchase or Conversion Rate Adjustment Event (a “Repurchase Notice”)
on such day if, following such repurchase or Conversion Rate Adjustment Event, the Notice Percentage would reasonably be expected
to be (i) greater than 17.47% and (ii) greater by 0.5% than the Notice Percentage included in the immediately preceding Repurchase
Notice (or, in the case of the first such Repurchase Notice, greater than the Notice Percentage as of the date hereof). The “Notice
Percentage” as of any day is the fraction, expressed as a percentage, the numerator of which is the Number of Shares
plus the number of Shares underlying any other convertible bond hedge transactions or similar call options sold by Dealer to Counterparty
and the denominator of which is the number of Shares outstanding on such day. In the event that Counterparty fails to provide Dealer
with a Repurchase Notice on the day and in the manner specified in this Section 8(e) then Counterparty agrees to indemnify and
hold harmless Dealer, its affiliates and their respective directors, officers, employees, agents and controlling persons (Dealer
and each such person being an “Indemnified Party”) from and against any and all losses (including losses relating
to the 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 this Transaction), claims, damages and liabilities (or actions in respect
thereof), joint or several, to which such Indemnified Party may become subject under applicable securities laws, including without
limitation, Section 16 of the Exchange Act or under any state or federal law, regulation or regulatory order, relating to
or arising out of such failure. If for any reason the foregoing indemnification is unavailable to any Indemnified Party or insufficient
to hold harmless any Indemnified Party, then Counterparty shall contribute, to the maximum extent permitted by law, to the amount
paid or payable by the Indemnified Party as a result of such loss, claim, damage or liability. In addition, Counterparty will reimburse
any Indemnified Party for all reasonable out-of-pocket expenses (including reasonable counsel fees and expenses) as they are incurred
(after notice to Counterparty) in connection with the investigation of, preparation for or defense or settlement of any pending
or threatened claim or any action, suit or proceeding arising therefrom, whether or not such Indemnified Party is a party thereto
and whether or not such claim, action, suit or proceeding is initiated or brought by or on behalf of Counterparty. This indemnity
shall survive the completion of the Transaction contemplated by this Confirmation and any assignment and delegation of the Transaction
made pursuant to this Confirmation or the Agreement and shall inure to the benefit of any permitted assignee of Dealer.
Counterparty will not be liable to an Indemnified Party, whether by indemnity or contribution, to the extent that any loss, claim,
damage, liability or expense resulted from such Indemnified Party’s gross negligence, fraud, or willful misconduct, as determined
by a court of competent jurisdiction in a final, non-appealable judgment.


 






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(f)            Transfer
and Assignment. Either party may transfer or assign any of its rights or obligations under the Transaction with the prior written
consent of the non-transferring party, such consent not to be unreasonably withheld or delayed; provided that Dealer may
transfer or assign without any consent of Counterparty its rights and obligations hereunder, in whole or in part, to any person,
or any person whose obligations would be guaranteed by a person, in either case, with a rating (i) for its long-term, unsecured
and unsubordinated indebtedness at least equivalent to Dealer’s (or its ultimate parent’s) as of the date of such transfer
or assignment or (ii) that is no lower than A3 from Moody’s Investor Service, Inc. (or its successor) or A- from Standard
and Poor's Rating Group, Inc. (or its successor); provided further that, at the time of such transfer or assignment either
(i) both the Dealer and transferee in any such transfer or assignment are a “dealer in securities” within the meaning
of Section 475(c)(1) of the Internal Revenue Code of 1986, as amended (the “Code”) or (ii) the transfer or assignment
does not result in a deemed exchange by Counterparty within the meaning of Section 1001 of the Code. If at any time at which (1)
the Equity Percentage exceeds 8.0% or (2) Dealer, Dealer Group (as defined below) 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 law, rule, regulation or regulatory
order or organizational documents or contracts of Counterparty 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
in excess of a number of Shares equal to (x) the number of Shares that would give rise to reporting, registration, filing or notification
obligations or other requirements (including obtaining prior approval by a state or federal regulator, but excluding reporting
obligations arising under Section 13 of the Exchange Act) of a Dealer Person under Applicable Restrictions and with respect to
which such requirements have not been met or the relevant approval has not been received, or that would have any other adverse
effect on a Dealer Person, under Applicable Restrictions minus (y) 1% of the number of Shares outstanding on the date of
determination (either such condition described in clause (1) or (2), an “Excess Ownership Position”), Dealer,
in its discretion, is unable to effect a transfer or assignment to a third party after its commercially reasonable efforts on pricing
and terms and within a time period reasonably acceptable to Dealer such that an Excess Ownership Position no longer exists, Dealer
may designate any Scheduled Trading Day as an Early Termination Date with respect to a portion (the “Terminated Portion”)
of the Transaction, such that an Excess Ownership Position would no longer exist following the resulting partial termination of
the Transaction (after taking into account commercially reasonable adjustments to Dealer’s commercially reasonable Hedge
Positions from such partial termination). In the event that Dealer so designates an Early Termination Date with respect to a portion
of the Transaction, a payment or delivery shall be made pursuant to Section 6 of the Agreement or Section 8(c) of this Confirmation
as if (i) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Terminated Portion
of the Transaction, (ii) Counterparty were the sole Affected Party with respect to such partial termination, (iii) such portion
of the Transaction were the only Terminated Transaction and (iv) Dealer were the party entitled to designate an Early Termination
Date pursuant to Section 6(b) of the Agreement and to determine the amount payable pursuant to Section 6(e) of the Agreement. The
 “Equity 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. In the case of a transfer or assignment by Counterparty
of its rights and obligations hereunder and under the Agreement, in whole or in part (any such Options so transferred or assigned,
the “Transfer Options”), to any party, withholding of such consent by Dealer shall not be considered unreasonable
if such transfer or assignment does not meet the 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 8(e) or any obligations under Section 2 (regarding Extraordinary Events) or 8(d) 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 Code);


 


(C)           Such
transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (including, but not
limited to, undertakings 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 by, and
reasonably satisfactory to, Dealer;


 


(D)           Dealer
shall 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 shall not occur as a result of such transfer and assignment;


 






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(F)           Without
limiting the generality of clause (B), Counterparty shall have caused 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 counsel fees, incurred by Dealer in connection
with such transfer or assignment.


 


(g)           Delivery
of Shares. Notwithstanding anything to the contrary herein, Dealer may, by prior notice to Counterparty, satisfy its obligation
to deliver any Shares or other securities on any date due (an “Original Delivery Date”) by making separate deliveries
of Shares or such securities, as the case may be, at more than one time on or prior to such Original Delivery Date, so long as
the aggregate number of Shares and other securities so delivered on or prior to such Original Delivery Date is equal to the number
required to be delivered on such Original Delivery Date.


 


(h)           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.


 


(i)            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.


 


(j)            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 Counterparty’s bankruptcy. For the avoidance of doubt,
the parties agree that the preceding sentence shall not apply at any time other than during Counterparty’s bankruptcy to
any claim arising as a result of a breach by Counterparty of any of its obligations under this Confirmation or the Agreement. For
the avoidance of doubt, the parties acknowledge that the obligations of Counterparty under this Confirmation are not secured by
any collateral that would otherwise secure the obligations of Counterparty herein under or pursuant to any other agreement.


 


(k)           Early
Unwind. In the event the sale by Counterparty of the “Base Convertible Securities” is not consummated pursuant
to the Purchase Agreement for any reason by the close of business in New York on May 18, 2020 (or such later date as agreed upon
by the parties) (May 18, 2020 or such later date being the “Early Unwind Date”), the Transaction shall automatically
terminate (the “Early Unwind”) on the Early Unwind Date and the Transaction and all of the respective rights
and obligations of Dealer and Counterparty hereunder shall be cancelled and terminated. Following such termination and cancellation,
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 either party arising out of, and to be performed in connection with, the Transaction
either prior to or after the Early Unwind Date. Dealer and Counterparty represent and acknowledge to the other that upon an Early
Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.


 


(l)             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 “Daily VWAP” (as defined in the Indenture); (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 “Daily VWAP”
(as defined in the Indenture), each in a manner that may be adverse to Counterparty; and (E) the Transaction is a derivatives transaction
in which it has granted Dealer an option, and Dealer may purchase shares for its own account at an average price that may be greater
than, or less than, the price paid by Counterparty under the terms of the Transaction.


 






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(m)          Wall
Street Transparency and Accountability Act. In connection with Section 739 of the Wall Street Transparency and Accountability
Act of 2010 (the “WSTAA”), the parties hereby agree that neither the enactment of the WSTAA (or any statute
containing any legal certainty provision similar to Section 739 of the WSTAA) or any regulation under the WSTAA (or any such statute),
nor any requirement under the WSTAA (or any statute containing any legal certainty provision similar to Section 739 of the WSTAA)
or an amendment made by the WSTAA (or any such statute), 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 or Illegality).


 


(n)            Governing
Law; Exclusive Jurisdiction; Waiver of Jury.


 


(i)            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 ARTICLE 5 OF THE NEW YORK GENERAL OBLIGATIONS LAW).


 


(ii)            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 this Confirmation or the Agreement, 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 decline 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 this Confirmation
or the Agreement, 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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(iii)            EACH
OF COUNTERPARTY AND DEALER HEREBY IRREVOCABLY WAIVES (ON ITS OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF
OF ITS STOCKHOLDERS) ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS CONFIRMATION OR THE AGREEMENT.


 


(o)            Amendment.
This Confirmation and the Agreement may not be modified, amended or supplemented, except in a written instrument signed by Counterparty
and Dealer.


 


(p)            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.


 


(q)            Tax
Matters.  For purposes of Sections 4(a)(i) and (ii) of the Agreement, Counterparty agrees to deliver to Dealer, upon request,
one duly executed and completed United States Internal Revenue Service Form W-9 (or successor thereto).


 


(r)             Withholding
Tax with Respect to Non-US Counterparties. “Indemnifiable Tax” as defined in Section 14 of the Agreement shall
not include (i) any U.S. federal withholding tax imposed or collected pursuant to Sections 1471 through 1474 of the Code, any current
or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code,
or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in
connection with the implementation of such Sections of the Code (a “FATCA Withholding Tax”) or (ii) any U.S.
federal withholding tax imposed on amounts treated as dividends from sources within the United States under Section 871(m) of the
Code (or any Treasury regulations or other guidance issued thereunder). For the avoidance of doubt, a FATCA Withholding Tax is
a Tax the deduction or withholding of which is required by applicable law for the purposes of Section 2(d) of the Agreement.


 


(s)            Amendment
to Equity Definitions.


 


(i)            Solely
in respect of adjustments to the Cap Price pursuant to Section 8(t), Section 11.2(e)(vii) of the Equity Definitions is hereby amended
by deleting the words “that may have a diluting or concentrative effect on the theoretical value of the relevant Shares”
and replacing them with the words “that is the result of a corporate event involving the Issuer or its securities that has,
in the commercially reasonable judgment of the Calculation Agent, a material economic effect on the Shares or options on the Shares;
provided that such event is not based on (a) an observable market, other than the market for the Company’s own stock
or (b) an observable index, other than an index calculated and measured solely by reference to Company’s own operations.”.


 


(ii)            Section
12.9(b)(i) of the Equity Definitions is hereby amended by (1) replacing “either party may elect” with “Dealer
may elect or, if Counterparty represents to Dealer in writing at the time of such election that (i) it is not aware of any material
nonpublic information with respect to Counterparty or the Shares and (ii) it is not making such election as part of a plan or scheme
to evade compliance with the U.S. federal securities laws, Counterparty may elect”.


 


(t)            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 in good faith and in a commercially reasonable
manner whether such occurrence or declaration, as applicable, has had a material economic effect on the Transaction and, if so,
may, in its good faith and commercially reasonable discretion, adjust the Cap Price to preserve the fair value of the Options (provided
that in no event shall the Cap Price be less than the Strike Price; provided further that any adjustment to the Cap
Price made pursuant to this Section 8(t) shall be made without duplication of any other adjustment hereunder). Solely for purposes
of this Section 8(t), the terms “Potential Adjustment Event,” “Merger Event,” and “Tender Offer”
shall each have the meanings assigned to each such term in the Equity Definitions (as amended by Section 8(s)(i)).


 






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(u)            Notice
of Certain Other Events. (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 Securities 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.


 


(v)            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.


 


(w)            QFC
Stay Rules. The parties 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 this Confirmation, and for such purposes this Confirmation shall be deemed a Protocol Covered Agreement and each party shall
be deemed to have the same status as Regulated Entity and/or Adhering Party as applicable to it under the Protocol; (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 this Confirmation and each party shall be deemed
to have the status of “Covered Entity” or “Counterparty Entity” (or other similar term) as applicable to
it under the Bilateral Agreement; 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 this Confirmation, and for such purposes this Confirmation shall be deemed
a “Covered Agreement,” Dealer shall be deemed a “Covered Entity” and Counterparty shall be deemed a “Counterparty
Entity.” In the event that, after the date of this Confirmation, 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 this Confirmation
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 “this Confirmation” include any related
credit enhancements entered into between the parties or provided by one to the other. “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.


 






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Counterparty 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 Counterparty 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 Dealer.


 


 


	 	Yours faithfully,
	 	 
	 	 
	 	MORGAN STANLEY & CO.
    LLC
	 	 
	 	 
	 	By:	/s/
Darren McCarley 





	 	 	Name: Darren McCarley
	 	 	Title: Managing Director 




 


 


	Agreed and Accepted By:	 
	 	 
	 	 
	PLUG POWER INC.	 
	 	 
	 	 
	By:	/s/ Paul B. Middleton	 
	 	Name:  Paul B. Middleton	 
	 	Title: Chief Financial Officer 	 




 






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