EX-10.5





 Exhibit 10.5 

EXECUTION VERSION 
 Morgan Stanley & Co.
International plc 
 c/o Morgan Stanley & Co. LLC 

1585 Broadway, 5th Floor 
 New York, NY 10036  

May 27, 2020 
  

	To:	 NuVasive, Inc. 



	    	 7475 Lusk Boulevard 



	    	 San Diego, California 92121 



 

	Re:	 Base Issuer Warrant Transaction 



 
  

Dear Ladies and Gentlemen: 
 The purpose of this
communication (this “Confirmation”) is to set forth the terms and conditions of the above-referenced transaction entered into on the Trade Date specified below (the “Transaction”) between Morgan Stanley &
Co. International plc. (“Dealer”) and NuVasive, Inc. (“Issuer”). 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”). For purposes of the Equity Definitions, each reference herein to a Warrant shall be deemed to be a reference to a Call Option or an Option, as context
requires. 
 Issuer is hereby advised, and Issuer acknowledges, that Dealer has engaged in, or refrained from engaging in, substantial
financial transactions and has taken other material actions in reliance upon the parties’ entry into the Transaction to which this Confirmation relates on the terms and conditions set forth below. 

This Confirmation evidences a complete and binding agreement between Dealer and Issuer as to the terms of the Transaction to which this
Confirmation relates. This Confirmation shall supplement, form a part of, and be subject to an agreement in the form of the ISDA 2002 Master Agreement (the “Agreement”) as if Dealer and Issuer had executed an agreement in such form
on the Trade Date (but without any Schedule except for (i) the election of the laws of the State of New York as the governing law (without reference to choice of law doctrine); (ii) the election that the “Cross Default” provisions of
Section 5(a)(vi) of the Agreement shall apply to Dealer with (a) a “Threshold Amount” with respect to Dealer of three percent of the shareholders’ equity of Dealer’s ultimate parent, (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 thereof: “Notwithstanding the foregoing, a default under
subsection (2) hereof shall not constitute an Event of Default if (x) the default was caused solely by error or omission of an administrative or operational nature; (y) funds were available to enable the party to make the payment when
due; and (z) the payment is made within two Local Business Days of such party’s receipt of written notice of its failure to pay.”; and (iii) the term “Specified Indebtedness” shall have the meaning specified in
Section 14 of the Agreement, except that such term shall not include obligations in respect of deposits received in the ordinary course of Dealer’s banking business). In the event of any inconsistency between provisions of the Agreement
and this Confirmation, this Confirmation will prevail for the purpose of the Transaction to which this Confirmation relates. The parties hereby agree that no Transaction other than the Transaction to which this Confirmation relates shall be governed
by the Agreement. If there exists any ISDA Master Agreement between Dealer and Issuer or any confirmation or other agreement between Dealer and Issuer pursuant to which an ISDA Master Agreement is deemed to exist between Dealer and Issuer, then
notwithstanding anything to the contrary in such ISDA Master Agreement, such confirmation or agreement or any other agreement to which Dealer and Issuer are parties, the Transaction shall not be considered a Transaction or Specified Transaction
under, or otherwise governed by, such existing or deemed ISDA Master Agreement. 












 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. 

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

 

			
	 Trade Date:
	  	May 27, 2020
		
	 Effective Date:
	  	June 1, 2020, or such other date as agreed between the parties, except that with respect to Section 8(l), the Effective Date shall be the Trade Date.
		
	 Components:
	  	The Transaction will be divided into individual Components, each with the terms set forth in this Confirmation, and, in particular, with the Number of Warrants and Expiration Date set forth in this Confirmation. The payments and
deliveries to be made upon settlement of the Transaction will be determined separately for each Component as if each Component were a separate Transaction under the Agreement.
		
	 Warrant Style:
	  	European
		
	 Warrant Type:
	  	Call
		
	 Seller:
	  	Issuer
		
	 Buyer:
	  	Dealer
		
	 Shares:
	  	The Common Stock of Issuer, par value USD 0.001 (Ticker Symbol: “NUVA”).
		
	 Number of Warrants:
	  	For each Component, as provided in Annex A to this Confirmation.
		
	 Warrant Entitlement:
	  	One Share per Warrant
		
	 Strike Price:
	  	USD104.8410. Notwithstanding anything to the contrary in the Agreement, this Confirmation or the Equity Definitions, in no event shall the Strike Price be subject to adjustment to the extent that, after giving effect to such
adjustment, the Strike Price would be less than USD63.54, except for any adjustment pursuant to the terms of this Confirmation and the Equity Definitions in connection with a stock split or similar change to Issuer’s capitalization.
		
	Number of Shares:	  	As of any date, a number of Shares equal to the product of the Number of Warrants and the Warrant Entitlement.


  
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	 Premium:
	  	USD12,492,000
		
	 Premium Payment Date:
	  	The Effective Date
		
	 Exchange:
	  	The NASDAQ Global Select Market
		
	 Related Exchange:
	  	All Exchanges
		
	Procedures for Exercise:	  	
		
	 In respect of any Component:
	  	
		
	 Expiration Time:
	  	Valuation Time
		
	 Expiration Date:
	  	As provided in Annex A to this Confirmation (or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day that is not already an Expiration Date for another Component); provided that if
that date is a Disrupted Day, the Expiration Date for such Component shall be the first succeeding Scheduled Trading Day that is not a Disrupted Day and is not deemed to be an Expiration Date in respect of any other Component of the Transaction
hereunder; and provided further that if the Expiration Date has not occurred pursuant to the preceding proviso as of the Final Disruption Date, the Calculation Agent shall have the right to elect, in its commercially reasonable discretion,
that the Final Disruption Date shall be the Expiration Date (irrespective of whether such date is an Expiration Date in respect of any other Component for the Transaction). Notwithstanding the foregoing and anything to the contrary in the Equity
Definitions, if a Market Disruption Event occurs on any Expiration Date, the Calculation Agent may determine in good faith that such Expiration Date is a Disrupted Day only in part, in which case the Calculation Agent shall make reasonable
adjustments in good faith and in a commercially reasonable manner to the Number of Warrants for the relevant Component for which such day shall be the Expiration Date, shall designate the Scheduled Trading Day determined in the manner described in
the immediately preceding sentence as the Expiration Date for the remaining Warrants for such Component and may determine the VWAP Price for such Expiration Date based on transactions in the Shares taking into account the nature and duration of the
Market Disruption Event occurring on such day. Any Scheduled Trading Day on which, as of the date hereof, the Exchange is scheduled to close prior to its normal close of trading shall be deemed not to be a Scheduled Trading Day; if a closure of the
Exchange prior to its normal close of trading on any Scheduled Trading Day is scheduled following the date hereof, then such Scheduled Trading Day shall be deemed to be a Disrupted Day in full. Section 6.6 of the Equity Definitions shall not
apply to any Valuation Date occurring on an Expiration Date. “Final Disruption 


  
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		  	 Date” means December 11, 2023. Market Disruption Event:

Section 6.3(a) of the Equity Definitions is hereby amended by (A) deleting the words “during the one hour period that ends at the relevant
Valuation Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be,” in clause (ii) thereof and (B) replacing
the words “or (iii) an Early Closure.” therein with “(iii) an Early Closure, or (iv) a Regulatory Disruption.”

		
		  	Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the term “Scheduled Closing Time” in the fourth line thereof.
		
	 Regulatory Disruption:
	  	Any event that Dealer, in good faith and in a commercially reasonable manner and based on the advice of counsel, determines makes it appropriate, with regard to any legal, regulatory or self-regulatory requirements or related
policies and procedures (whether or not such requirements or related policies and procedures are imposed by law or have been voluntarily adopted by Dealer, but so long as such requirements or related policies and procedures are similarly applicable
to transactions similar to the Transaction and consistently applied), for Dealer to refrain from or decrease any market activity in connection with the Transaction in connection with Dealer establishing, maintaining or unwinding a commercially
reasonable Hedge Position.
		
	 Automatic Exercise:
	  	Applicable; and means that the Number of Warrants for the corresponding Expiration Date will be deemed to be automatically exercised at the Expiration Time on such Expiration Date unless Dealer notifies Seller (by telephone or in
writing) prior to the Expiration Time on such Expiration Date that it does not wish Automatic Exercise to occur, in which case Automatic Exercise will not apply to such Expiration Date.
		
	 Issuer’s Telephone Number and Telex and/or Facsimile Number and Contact Details for purpose of Giving
Notice:
	  	As provided in Section 6(a) below.
		
	Settlement Terms:	  	
		
	 In respect of any Component:
	  	
		
	 Settlement Currency:
	  	USD
		
	 Settlement Method Election:
	  	Applicable; provided that:
		
		  	(i) references to “Physical Settlement” in Section 7.1 of the Equity Definitions shall be replaced by references to “Net Share Settlement”;


  
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		  	(ii) Issuer may elect Cash Settlement only if, on or prior to the Settlement Method Election Date, Issuer delivers written notice to Dealer stating that Issuer has elected that Cash Settlement apply with respect to every Component
of the Transaction, and Dealer delivers written consent to such election by Issuer, by the second (2nd) Scheduled Trading Day immediately following the day on which such notice is delivered by Issuer;
		
		  	(iii) in such notice, Issuer shall represent and warrant to Dealer in writing that, as of such notice delivery date:
		
		  	 (A) none of Issuer and its officers or directors, or any person that controls, potentially controls, or otherwise
exercises influence over, Issuer’s decision to elect Cash Settlement is aware of any material nonpublic information regarding Issuer or the Shares;

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

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

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

		
		  	 (E) Issuer has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not
believe that it will, incur debt beyond its ability to pay as such debts mature;

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

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

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

		
		  	(iv) in giving such notice, Issuer acknowledges that any transaction that Dealer makes with respect to the Shares during the period beginning at the time that Issuer delivers notice of its Cash Settlement election and ending at the
close of business on the final day of


  
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		  	the Settlement Period shall be made by Dealer at Dealer’s sole discretion for Dealer’s own account and Issuer shall not have, and shall not attempt to exercise, any influence over how, when, whether or at what price Dealer
effects such transactions, including, without limitation, the prices paid or received by Dealer per Share pursuant to such transactions, or whether such transactions are made on any securities exchange or privately; and
		
		  	(v) such Settlement Method Election shall apply to every Component.
		
		  	Notwithstanding the foregoing, Issuer shall not have the right to elect Cash Settlement if Dealer notifies Issuer that, in the reasonable judgment of Dealer and based on the advice of counsel, the election of Cash Settlement or any
hedge unwind activity of Dealer (or its affiliates) in connection therewith would raise material risks under applicable securities laws or any other legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not
such requirements or related policies are imposed by laws or have been voluntarily adopted by Dealer, but so long as such requirements or related policies are similarly applicable to transactions similar to the Transaction and consistently
applied).
		
	 Electing Party:
	  	Issuer
		
	 Settlement Method Election Date:
	  	The second (2nd) Scheduled Trading Day immediately preceding the scheduled Expiration Date for the Component with the earliest scheduled Expiration Date.
		
	 Default Settlement Method:
	  	Net Share Settlement
		
	 Settlement Date:
	  	Section 9.4 of the Equity Definitions is hereby amended by (i) inserting the words “or cash” immediately following the word “Shares” in the first line thereof, and (ii) inserting the words
“for the Shares” immediately following the words “Settlement Cycle” in the second line thereof.
		
	 Net Share Settlement:
	  	If applicable, on each Settlement Date, Issuer shall deliver to Dealer a number of Shares equal to the Number of Shares to be Delivered for such Settlement Date to the account specified by Dealer and cash in lieu of any fractional
Share valued at the Relevant Price on the Valuation Date corresponding to such Settlement Date. If, in the reasonable opinion of Dealer, based on advice of counsel, for any reason, the Shares deliverable upon Net Share Settlement would not be
immediately freely transferable by Dealer under Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”), then Dealer may elect to either (x) accept delivery of such Shares notwithstanding any restriction on
transfer or (y) have the provisions set forth in Section 8(c) below apply.


  
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		  	The Number of Shares to be Delivered shall be delivered by Issuer to Dealer no later than 12:00 noon (local time in New York City) on the relevant Settlement Date.
		
	 Number of Shares to be Delivered:
	  	In respect of any Exercise Date, the product of (i) the number of Warrants exercised or deemed exercised on such Exercise Date, (ii) the Warrant Entitlement and (iii) (A) the excess of the VWAP Price on the Valuation
Date occurring in respect of such Exercise Date over the Strike Price (or, if there is no such excess, zero) divided by (B) such VWAP Price.
		
	 VWAP Price:
	  	For any Exchange Business Day, as determined by the Calculation Agent based on the NASDAQ Volume Weighted Average Price per Share for the regular trading session (including any extensions thereof) of the Exchange on such Exchange
Business Day (without regard to pre-open or after hours trading outside of such regular trading session), as published by Bloomberg at 4:15 P.M., New York City time (or 15 minutes following the end of any
extension of the regular trading session), on such Exchange Business Day, on Bloomberg page “NUVA.Q <Equity> AQR” (or any successor thereto) (or if such published volume weighted average price is unavailable or is manifestly
incorrect, the market value of one Share on such Exchange Business Day, as determined by the Calculation Agent using, if practicable, a volume weighted method).
		
	 Other Applicable Provisions:
	  	The provisions of Sections 9.1(c), 9.4, 9.8, 9.9, 9.11 and 9.12 of the Equity Definitions will be applicable as if “Physical Settlement” applied to the Transaction; provided that the Representation and Agreement
contained in Section 9.11 of the Equity Definitions shall be modified by excluding any representations therein relating to restrictions, obligations, limitations or requirements under applicable securities laws that exist as a result of the
fact that Issuer is the issuer of the Shares.
		
	 Option Cash Settlement Amount:
	  	For any Exercise Date, the product of (i) the number of Warrants exercised or deemed exercised on such Exercise Date, (ii) the Warrant Entitlement and (iii) the excess of the VWAP Price on the Valuation Date occurring
in respect of such Exercise Date over the Strike Price (or, if there is no such excess, zero).
		
	Adjustments:	  	
		
	 In respect of any Component:
	  	


  
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	 Method of Adjustment:
	  	Calculation Agent Adjustment; provided that the parties agree that open market Share repurchases through a dealer pursuant to accelerated share repurchases, forward contracts or similar transactions (including without limitation any
discount to average VWAP Prices) that are entered into at prevailing market prices and in accordance with customary market terms for transactions of such type to repurchase Shares shall not be considered Potential Adjustment Events as long as the
number of Shares so repurchased does not in the aggregate with all such other repurchases prior to the last Expiration Date exceed 15% of the total number of Shares outstanding as disclosed in Issuer’s most recent annual report filed on Form 10-K with the Securities and Exchange Commission at the time of such repurchase, as determined by Calculation Agent in a commercially reasonable manner. For the avoidance of doubt, Calculation Agent Adjustment shall
continue to apply until the obligations of the parties (including any obligations of Issuer pursuant to Section 8(f) below) under the Transaction have been satisfied in full.
		
	 Extraordinary Dividend:
	  	Any dividend or distribution on the Shares (other than any dividend or distribution of the type described in Section 11.2(e)(i) or Section 11.2(e)(ii)(A) of the Equity Definitions).
		
	Extraordinary Events:	  	
		
	 New Shares:
	  	In the definition of New Shares in Section 12.1(i) of the Equity Definitions, the text in clause (i) thereof shall be deleted in its entirety and replaced with “publicly quoted, traded or listed on any of The New York
Stock Exchange, The NASDAQ Global Market or The NASDAQ Global Select Market (or their respective successors).
		
	 Consequences of Merger Events:
	  	
		
	 (a) Share-for-Share:
	  	Modified Calculation Agent Adjustment
		
	 (b) Share-for-Other:
	  	Cancellation and Payment (Calculation Agent Determination); provided that Dealer may elect, in its commercially reasonable discretion, that Modified Calculation Agent Adjustment shall apply for all or part of the
Transaction.
		
	 (c) Share-for-Combined:
	  	Cancellation and Payment (Calculation Agent Determination); provided that Dealer may elect, in its commercially reasonable discretion, that Modified Calculation Agent Adjustment or Component Adjustment shall apply for all or
part of the Transaction.
		
	 Tender Offer:
	  	Applicable; provided that the definition of “Tender Offer” in Section 12.1 of the Equity Definitions shall be amended by replacing the phrase “greater than 10%” with the phrase “greater than
20%”.


  
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	 Consequences of Tender Offers:
	  	
		
	 (a) Share-for-Share:
	  	Modified Calculation Agent Adjustment
		
	 (b) Share-for-Other:
	  	Modified Calculation Agent Adjustment
		
	 (c) Share-for-Combined:
	  	Modified Calculation Agent Adjustment
		
	 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 words “within a commercially reasonable (as determined by the
Calculation Agent) period of time prior to or after the date of the Announcement Event” shall be inserted after “Transaction)” in the sixth line thereof, and (z) for the avoidance of doubt, the Calculation Agent shall determine
whether the relevant Announcement Event has had an economic effect on any Component (and, if so, adjust the terms of such Component accordingly to account for the economic effect of such Announcement Event) 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 thereof, it being understood that any adjustment in respect of an Announcement Event shall be made in a
commercially reasonable manner to preserve the fair value of the Warrants after taking into account such Announcement Event and 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.
		
	 Announcement Event:
	  	(i) The public announcement by Issuer or any Valid Third Party of (x) any transaction or event that is reasonably likely to be completed and, if completed, would constitute a Merger Event or Tender Offer (it being understood
and agreed that in determining whether such transaction or event is reasonably likely to be completed, the Calculation Agent shall take into consideration the effect of the relevant announcement on the Shares and/or options relating to the Shares
and, if such effect is material, shall deem such transaction or event to be reasonably likely to be completed), (y) any potential acquisition or disposition by Issuer and/or its subsidiaries where the aggregate consideration exceeds 35% of the
market capitalization of Issuer as of the date of such announcement (an “Acquisition or Disposition Transaction”) or (z) the intention to enter into a Merger Event or Tender Offer or an Acquisition or Disposition Transaction,
(ii) the public announcement


  
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		  	by Issuer of an intention to solicit or enter into, or to explore strategic alternatives or other similar undertaking that shall include, a Merger Event or Tender Offer or an Acquisition or Disposition Transaction or (iii) any
subsequent public announcement by Issuer or any Valid Third Party of a change to a transaction or intention that is the subject of an announcement of the type described in clause (i) or (ii) of this sentence (including, without limitation, a
new announcement, whether or not by the same party, relating to such a transaction or intention or the announcement of a withdrawal from, or the abandonment or discontinuation of, such a transaction or intention), as determined by the Calculation
Agent. For the avoidance of doubt, the occurrence of an Announcement Event with respect to any transaction or intention shall not preclude the occurrence of a later Announcement Event with respect to such transaction or intention. For purposes of
this definition of “Announcement Event,” the remainder of the definition of “Merger Event” in Section 12.1(b) of the Equity Definitions following the definition of “Reverse Merger” therein shall be
disregarded.
		
	 Valid Third Party:
	  	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 shall take into consideration the effect of the relevant announcement by such third party on the Shares and/or options relating to the Shares).
		
	 Modified Calculation Agent Adjustment:
	  	If, in respect of any Merger Event to which Modified Calculation Agent Adjustment applies, the adjustments to be made in accordance with Section 12.2(e)(i) of the Equity Definitions would result in Issuer being different from
the issuer of the Shares, then with respect to such Merger Event, as a condition precedent to the adjustments contemplated in Section 12.2(e)(i) of the Equity Definitions, Dealer, the Issuer of the Affected Shares and the entity that will be
the Issuer of the New Shares shall, prior to the Merger Date, have entered into such documentation containing representations, warranties and agreements relating to securities law and other issues as requested by Dealer (which may include, without
limitation, agreements relating to “tacking” and “holding period” related considerations under U.S. securities law and credit exposure assumed by Dealer as the result of such Merger Event) that Dealer has determined, in its
reasonable discretion, to be reasonably necessary or appropriate to allow Dealer to continue as a party to the Transaction, as adjusted under Section 12.2(e)(i)


  
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		  	of the Equity Definitions, and to preserve its hedging or hedge unwind activities in connection with the Transaction, assuming Dealer maintains or unwinds a commercially reasonable Hedge Position, in a manner compliant with
applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to Dealer (whether or not such requirements or related policies and procedures are imposed by law or have been voluntarily adopted by
Dealer, but so long as such requirements or related policies and procedures are similarly applicable to transactions similar to the Transaction and consistently applied), and if such conditions are not met or if the Calculation Agent determines that
no adjustment that it could make under Section 12.2(e)(i) of the Equity Definitions will produce a commercially reasonable result, then the consequences set forth in Section 12.2(e)(ii) of the Equity Definitions shall apply.
		
	 Composition of Combined Consideration:
	  	Notwithstanding anything to the contrary in the Equity Definitions, if the composition of Combined Consideration in respect of any Share-for-Combined
Merger Event could be objectively determined by a holder of Shares, Dealer shall accordingly determine the composition of such Combined Consideration assumed for purposes of adjustments and deliveries hereunder in good faith and in a commercially
reasonable manner.
		
	 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 or The
NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any
such exchange or quotation system, such exchange or quotation system shall thereafter be deemed to be the Exchange.
		
	 Additional Termination Event(s):
	  	Notwithstanding anything to the contrary in the Equity Definitions, if, as a result of an Extraordinary Event, 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 Issuer being the sole Affected Party) shall be deemed to occur, and, in lieu of Sections 12.7,
12.8 and 12.9 of the Equity Definitions, Section 6 of the Agreement shall apply to such Affected Transaction.


  
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	 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) by adding the phrase “and/or Hedge Position” after the word “Shares” in clause (X) thereof and (iii) by 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 phrase “(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:
	  	Not Applicable
		
	 (c) Insolvency Filing:
	  	Applicable
		
	 (d) Hedging Disruption:
	  	Applicable; provided that:
		
		  	(i) Section 12.9(a)(v) of the Equity Definitions is hereby amended by (a) inserting the following words at the end of clause (A) thereof: “in the manner contemplated by the Hedging Party on the Trade Date”
and (b) inserting the following 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”.


  
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	 (e) Increased Cost of Hedging:
	  	Not Applicable
		
	 (f) Loss of Stock Borrow:
	  	Applicable
		
	      Maximum Stock Loan Rate:
	  	200 basis points
		
	 (g) Increased Cost of Stock Borrow:
	  	Applicable
		
	      Initial Stock Loan Rate:
	  	0 basis points until June 1, 2023 and 25 basis points thereafter
		
	 Hedging Party:
	  	Dealer for all applicable Additional Disruption Events.
		
	 Determining Party:
	  	Dealer for all applicable Additional Disruption Events. Following any determination or calculation by the Determining Party hereunder, upon a written request by Issuer, the Determining Party will promptly (but in any event within
five Exchange Business Trading Days) provide to Issuer a report displaying in reasonable detail the basis for such determination or calculation, as the case may be; provided that the Determining Party shall not be required to disclose any
proprietary or confidential models or other information that is proprietary or confidential.
		
	 Non-Reliance:
	  	Applicable
		
	 Agreements and Acknowledgments

Regarding Hedging Activities:
	  	Applicable
		
	 Additional Acknowledgments:
	  	Applicable
		
	 Hedging Adjustments:
	  	For the avoidance of doubt, whenever the Calculation Agent, Determining Party or Dealer is permitted to make an adjustment pursuant to the terms of this Confirmation or the Equity Definitions to take into account the economic effect
of an event (other than, for the avoidance of doubt, any adjustment that is required to be made by reference to the Indenture), the Calculation Agent, Determining Party or Dealer shall make such adjustment, if any, 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, following the occurrence of an Event of Default of the type described in Section 5(a)(vii) of the Agreement with respect to which Dealer is the Defaulting Party, if the Calculation Agent fails to
timely make any calculation, adjustment or determination required to be made by the Calculation Agent hereunder or to perform any obligation of the Calculation Agent hereunder and such failure continues for five Exchange Business Days following
notice to the Calculation Agent by Issuer of such failure, Issuer shall have the right to designate a nationally recognized third-party dealer in over-the-counter
corporate equity derivatives to act, during the period commencing on the first date the Calculation Agent fails to timely make such calculation, adjustment or determination or to perform such obligation, as the case may be, and ending on the earlier
of the Early Termination Date with respect to such Event of Default and the date on which such Event of Default is no longer continuing, as the Calculation Agent and the parties shall work in good faith to execute any appropriate documentation
required by such replacement Calculation Agent.
		
		  	Whenever the Calculation Agent is required to act or to exercise judgment in any way with respect to any Transaction hereunder, it will do so in good faith and in a commercially reasonable manner.
		
		  	Following any determination or calculation by the Calculation Agent hereunder, upon a written request by Issuer, the Calculation Agent will promptly (but in any event within three Exchange Business Trading Days) provide to Issuer a
report displaying in reasonable detail the basis for such determination or calculation, as the case may be, it being understood that the Calculation Agent shall not be obligated to disclose any proprietary or confidential models or any other
confidential or proprietary information, in each case, used by it for such determination or calculation.


  
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	 	4.	 Account Details: 



Dealer Payment Instructions: 

Account for delivery of Shares to Dealer: 

Issuer Payment Instructions: 
  

	 	5.	 Offices: 



The Office of Dealer for the Transaction is: 

The Office of Issuer for the Transaction is: 
  

	 	6.	 Notices: For purposes of this Confirmation: 



 

	 	(a)	 Address for notices or communications to Issuer: 



 

	 	(b)	 Address for notices or communications to Dealer: 



 

	 	7.	 Representations, Warranties and Agreements: 



(a) In addition to the representations and warranties in the Agreement and those contained elsewhere herein, Issuer represents and warrants to
and for the benefit of, and agrees with, Dealer as follows: 
 (i) On the Trade Date and as of the date of any Notice of
Election under (and as defined in) Section 8(b) below, (A) none of Issuer and its officers and directors is aware of any material nonpublic information regarding Issuer or the Shares and (B) all reports and other documents filed by
Issuer with the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), when considered as a whole (with the more recent such reports and documents deemed to amend
inconsistent statements contained in any earlier such reports and documents), do not contain any untrue statement of a material fact or any omission of a material fact required to be stated therein or necessary to make the statements therein, in the
light of the circumstances in which they were made, not misleading. 
 (ii) Without limiting the generality of
Section 13.1 of the Equity Definitions, Issuer acknowledges that neither Dealer nor any of its affiliates is making any representations or warranties or taking any position or expressing any view with respect to the treatment of the Transaction
under any accounting standards including ASC Topic 260, Earnings Per Share, ASC Topic 815, Derivatives and Hedging, or ASC Topic 480, Distinguishing Liabilities from Equity and ASC 815-40,
Derivatives and Hedging – Contracts in Entity’s Own Equity (or any successor issue statements). 

(iii) Prior to the Trade Date, Issuer shall deliver to Dealer a resolution of Issuer’s board of directors authorizing the
Transaction, and approving the Transaction for purposes of Section 203 of the Delaware General Corporation Law, and such other certificate or certificates as Dealer shall reasonably request. 

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

(v) Issuer is not, and after giving effect to the transactions contemplated hereby will not be, required to register as an
“investment company” as such term is defined in the Investment Company Act of 1940, as amended. 
 (vi) On the
Trade Date and the Premium Payment Date (A) the assets of Issuer at their fair valuation exceed the liabilities of Issuer, including contingent liabilities, (B) the capital of Issuer is adequate to conduct the business of Issuer and
(C) Issuer has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature. 

  
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 (vii) Issuer shall not take any action to decrease the number of Available
Shares below the Capped Number (each as defined below, but without giving effect to the limitation on adjustments to the Capped Number set forth in the proviso in the first sentence of Section 8(f)). 

(viii) The representations and warranties of Issuer set forth in Section 3 of the Agreement and Section 1 of the
Purchase Agreement, dated as of May 27, 2020, among Issuer and Morgan Stanley & Co. LLC and BofA Securities, Inc., as representatives 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. 

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

(x) Any issuance of Shares upon exercise or termination of the Transaction has been, and throughout the Transaction will
continue to be, duly authorized and, upon issuance, such Shares will be validly issued, fully paid and non-assessable, and the issuance or delivery thereof shall not be subject to any preemptive or similar
rights and such Shares shall, upon issuance, be accepted for listing or quotation on the Exchange. A number of Shares of Issuer equal to the Capped Number have been reserved for issuance upon exercise or termination of the Warrants by all required
corporate action of Issuer. 
 (xi) To the knowledge of Issuer, 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, holding (however defined) or having a right to acquire Shares; provided that Issuer 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. 

(xii) Issuer (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 Issuer 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 Issuer acknowledges that the offer and sale of
the Transaction to it is intended to be exempt from registration under the Securities Act, by virtue of Section 4(a)(2) thereof. Accordingly, Dealer represents and warrants to Issuer that (i) it has the financial ability to bear the
economic risk of its investment in the Transaction and is able to bear a total loss of its investment and its investments in and liabilities in respect of the Transaction, which it understands are not readily marketable, are not disproportionate to
its net worth, and it is able to bear any loss in connection with the Transaction, including the loss of its entire investment in the Transaction, (ii) it is an “accredited investor” as that term is defined in Regulation D as
promulgated under the Securities Act, (iii) it is entering into the Transaction for its own account and without a view to the distribution or resale thereof, (iv) the assignment, transfer or other disposition of the Transaction has not
been and will not be registered under the Securities Act and is restricted under this Confirmation, the Securities Act and state securities laws, and (v) its financial condition is such that it has no need for liquidity with respect to its
investment in the Transaction and no need to dispose of any portion thereof to satisfy any existing or contemplated undertaking or indebtedness and is capable of assessing the merits of and understanding (on its own behalf or through independent
professional advice), and understands and accepts, the terms, conditions and risks of the Transaction. 

  
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 (d) Each of Dealer and Issuer agrees and acknowledges that Dealer is a “financial
institution” and “financial participant” within the meaning of Sections 101(22) and 101(22A) of Title 11 of the United States Code (the “Bankruptcy Code”). The parties hereto further agree and acknowledge
(A) that this Confirmation is 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 Dealer’s obligation to pay the Premium on the Premium Payment Date, Issuer shall deliver to Dealer (i) an
incumbency certificate, dated as of the Trade Date, of Issuer in customary form, (ii) an opinion of counsel, dated as of the Trade 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 Sections 7(a)(v) and 7(a)(x) of this Confirmation and such other matters as Dealer may reasonably request and (iii) evidence that the listing of the Shares issuable upon exercise or termination of the
Warrants on the Exchange has been approved by the Exchange, subject only to official notice of issuance. 
 (f) Issuer understands that
notwithstanding any other relationship between Issuer and Dealer and its affiliates, in connection with this Transaction and any other over-the-counter derivative
transactions between Issuer and Dealer or its affiliates, Dealer or its affiliate 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) Issuer 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. 
 (i) Tax Matters.

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

(B) HIRE Act. “Tax” and “Indemnifiable Tax”, each as defined in Section 14 of the
Agreement, shall not include any tax imposed on payments treated as dividends from sources within the United States under Section 871(m) of the Code or any regulations issued thereunder. 

(C) Tax documentation. For the purpose of Sections 4(a)(i) and (ii) of the Agreement, Issuer shall provide to
Dealer a valid U.S. Internal Revenue Service Form W-9, or any successor thereto, (i) on or before the date of execution of this Confirmation and (ii) promptly upon learning that any such tax form
previously provided by Issuer has become obsolete or incorrect. Additionally, Issuer shall, promptly upon request by Dealer, provide such other tax forms and documents reasonably requested by Dealer. For the purpose of Sections 4(a)(i) and
(ii) of the Agreement, Dealer shall provide to Issuer a valid U.S. Internal Revenue Service Form W-9 or applicable U.S. Internal Revenue Service Form W-8 (or any
successor thereto) (i) on or before the date of execution of this Confirmation and (ii) promptly upon learning that any such tax form previously provided by Dealer has become obsolete or incorrect. 

  
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 (D) Tax Representations. For the purpose of Section 3(f) of the
Agreement, Issuer represents that (i) Issuer is a corporation for U.S. federal income tax purposes and is organized under the laws of the State of Delaware and (ii) Issuer is a “U.S. person” (as that term is used in section 1.1441-4(a)(3)(ii) of United States Treasury Regulations) for U.S. federal income tax purposes and an exempt recipient under Treasury Regulation
Section 1.6049-4(c)(1)(ii). 
 (j) The assets of Issuer do not constitute
“plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law. 
  

	 	8.	 Other Provisions: 



(a) Right to Extend. Dealer may postpone or add, in whole or in part, any Expiration Date or Settlement Date or any other date of
valuation or delivery by Issuer, with respect to some or all of the relevant Warrants (in which event the Calculation Agent shall make appropriate adjustments to the relevant delivery obligation), if Dealer determines, in its commercially reasonable
discretion, that such extension is reasonably necessary or appropriate 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 or to enable Dealer to effect purchases 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, if Dealer
were Issuer or an affiliated purchaser of Issuer, be in compliance with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures (whether or not such requirements, policies or procedures are imposed by
law or have been voluntarily adopted by Dealer, but so long as such requirements, policies and procedures are similarly applicable to transactions similar to the Transaction and consistently applied). 

(b) Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events. (i) If Issuer shall owe Dealer
any amount pursuant to Section 6(d)(ii) and 6(e) of the Agreement (a “Payment Obligation”), then Issuer shall satisfy the Payment Obligation by the Share Termination Alternative (as defined below) and the following provisions
shall apply on the Scheduled Trading Day immediately following the Merger Date, the Tender Offer Date, Announcement Date, Early Termination Date or date of cancellation or termination in respect of an Extraordinary Event, as applicable, unless
(a) Issuer gives irrevocable telephonic notice to Dealer, confirmed in writing within one Scheduled Trading Day, no later than 12:00 p.m. (New York City time) on the Merger Date, the Tender Offer Date, Announcement Date, Early Termination Date
or date of cancellation or termination in respect of an Extraordinary Event, as applicable, of its election that the Share Termination Alternative shall not apply (“Notice of Election”), (b) Issuer remakes the representation set
forth in Section 7(a)(i)) as of the date of such election and (c) Dealer agrees, in its sole, good faith discretion, to such election, in which case the provisions of Section 12.7 or Section 12.9 of the Equity Definitions, or the
provisions of Section 6(d)(ii) and 6(e) of the Agreement, as the case may be, shall apply. 
  

			
	Share Termination Alternative:	  	If applicable, means that Issuer shall deliver to Dealer the Share Termination Delivery Property on the date on which the Payment Obligation would otherwise be due pursuant to Section 6(d)(ii) and 6(e) of the Agreement (the
“Share Termination Payment Date”), in satisfaction of the Payment Obligation.
		
	Share Termination Delivery Property:	  	A number of Share Termination Delivery Units, as calculated by the Calculation Agent, equal to the Payment Obligation divided by the Share Termination Unit Price. The Calculation Agent shall adjust the Share Termination Delivery
Property by replacing any fractional portion of the aggregate amount of a security therein with an amount of cash in the Settlement Currency equal to the value of such fractional security based on the values used to calculate the Share Termination
Unit Price.


  
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	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 and notified
by the Calculation Agent to Issuer at the time of notification of the Payment Obligation.
		
	Share Termination Delivery Unit:	  	In the case of a Termination Event (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.
		
	Failure to Deliver:	  	Not Applicable
		
	Other Applicable Provisions:	  	If Share Termination Alternative is applicable, the provisions of Sections 9.1(c), 9.8, 9.9, 9.11 and 9.12 of the Equity Definitions will be applicable as if “Physical Settlement” applied to the Transaction, except that
all references to “Shares” shall be read as references to “Share Termination Delivery Units”; provided that the Representation and Agreement contained in Section 9.11 of the Equity Definitions shall be modified by
excluding any representations therein relating to restrictions, obligations, limitations or requirements under applicable securities laws as a result of the fact that Issuer is the issuer of any Share Termination Delivery Units (or any security
forming a part thereof). If, in the reasonable opinion of Dealer, based on advice of counsel, for any reason, any securities comprising the Share Termination Delivery Units deliverable pursuant to this Section 8(b) would not be immediately
freely transferable by Dealer under Rule 144 under the Securities Act, then Dealer may elect to either (x) permit delivery of such securities notwithstanding any restriction on transfer or (y) have the provisions set forth in
Section 8(c) below apply.

 (ii) Notwithstanding anything to the contrary in this Confirmation, any Payment Obligation under this Confirmation shall, for
all purposes, be calculated as if the Capped Number were equal to the product of 1.3 and the Number of Shares (without regard to the limitations on adjustment set forth in the proviso contained in the first sentence of Section 8(f)) but
any deliveries under Section 8(b)(i) shall be limited to the Capped Number as defined in Section 8(f) hereof. 
 (c)
Registration/Private Placement Procedures. (i) With respect to the Transaction, the following provisions shall apply to the extent provided for above opposite the caption “Net Share Settlement” in Section 2 or in paragraph
(a) of this Section 8. If so applicable, then, at the election of Issuer by notice to Dealer within one Exchange Business Day after the relevant delivery obligation arises, but in any event at least one Exchange Business Day prior to the
date on which such delivery obligation is due, either (A) all Shares or Share Termination Delivery Units, as the case may be, delivered by Issuer to Dealer shall be, at the time of such delivery, covered by an effective registration statement
of Issuer for immediate resale by Dealer (such registration statement and the corresponding prospectus (the “Prospectus”) (including, without limitation, any sections describing the plan of distribution) in form and content
commercially reasonably satisfactory to Dealer) or (B) Issuer shall deliver additional Shares or Share Termination Delivery Units, as the case may be, so that the value of such Shares or Share Termination Delivery Units, as determined by the


  
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Calculation Agent in good faith to reflect a commercially reasonable liquidity discount for Shares or Share Termination Delivery Units of companies of similar size in a similar industry, equals
the value of the number of Shares or Share Termination Delivery Units that would otherwise be deliverable if such Shares or Share Termination Delivery Units were freely tradeable (without prospectus delivery) upon receipt by Dealer (such value, the
“Freely Tradeable Value”); provided that, if requested by Dealer, Issuer shall make the election described in this clause (B) with respect to Shares delivered on all Settlement Dates no later than one Exchange Business
Day prior to the first Exercise Date, and the applicable procedures described below shall apply to all Shares delivered on the Settlement Dates on an aggregate basis. 

(ii) It shall be a condition to Issuer’s right to make the election described in clause (c)(i)(A) that: 

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

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

(B) Dealer (or an affiliate of Dealer designated by Dealer) and Issuer shall enter into an agreement (a “Private
Placement Agreement”) on commercially reasonable terms in connection with the private placement of such Shares or Share Termination Delivery Units, as the case may be, by Issuer to Dealer or such affiliate and the private resale of such
shares by Dealer or such affiliate, substantially similar to private placement purchase agreements customary for private placements of equity securities for companies of similar size in a similar industry, in form and substance commercially
reasonably satisfactory to Dealer and Issuer, which Private Placement Agreement shall include, without limitation, provisions substantially similar to those contained in such private placement purchase agreements customary for companies of similar
size in a similar industry relating to the indemnification of, and contribution in connection with the liability of, Dealer and its affiliates and Issuer, shall provide for the payment by Issuer of all expenses in connection with such resale,
including all fees and expenses of counsel for Dealer, shall contain representations, warranties and agreements of Issuer customary for companies of similar size in a similar industry reasonably necessary or advisable to establish and maintain the
availability of an exemption from the registration requirements of the Securities Act for such resales, and shall use best efforts to provide for the delivery of accountants’ “comfort letters” to Dealer or such affiliate with respect
to the financial statements and certain financial information contained in or incorporated by reference into the offering memorandum prepared for the resale of such Shares; 

  
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 (C) Issuer agrees that (i) any Shares or Share Termination Delivery
Units so delivered to Dealer may be transferred by and among Dealer and its affiliates, and Issuer shall effect such transfer without any further action by Dealer and (ii) after the minimum “holding period” within the meaning of Rule
144(d) under the Securities Act has elapsed with respect to such Shares or any securities issued by Issuer comprising such Share Termination Delivery Units, Issuer shall promptly remove, or cause the transfer agent for such Shares or securities to
remove, any legends referring to any such restrictions or requirements from such Shares or securities, without any further requirement for the delivery of any certificate, consent, agreement, opinion of counsel, notice or any other document, any
transfer tax stamps or payment of any other amount or any other action by Dealer (or such affiliate of Dealer); and 
 (D)
Issuer shall not take, or cause to be taken, any action that would make unavailable either the exemption pursuant to Section 4(a)(2) of the Securities Act for the sale by Issuer to Dealer (or any affiliate designated by Dealer) of the Shares or
Share Termination Delivery Units, as the case may be, or the exemption pursuant to Section 4(a)(1) or Section 4(a)(3) of the Securities Act for resales of the Shares or Share Termination Delivery Units, as the case may be, by Dealer (or
any such affiliate of Dealer). 
 (d) Make-whole Shares. If Issuer makes the election described in clause (i)(B) of paragraph
(c) of this Section 8, then Dealer or its affiliates may sell (which sale shall be made in a commercially reasonable manner) such Shares or Share Termination Delivery Units, as the case may be, during a period (the “Resale
Period”) commencing on the Exchange Business Day following delivery of such Shares or Share Termination Delivery Units, as the case may be, and ending on the Exchange Business Day on which Dealer or its affiliates completes the sale of a
sufficient number of Shares or Share Termination Delivery Units, as the case may be, so that the realized net proceeds of such sales exceed the Freely Tradeable Value. Dealer shall endeavor to sell such Shares or Share Termination Delivery Units as
soon as practicable following delivery of such Shares or Share Termination Delivery Units. Notwithstanding anything to the contrary in this Confirmation, in no event shall the Resale Period exceed 30 days. If any of such delivered Shares or Share
Termination Delivery Units remain after such realized net proceeds exceed the Freely Tradeable Value, Dealer shall return such remaining Shares or Share Termination Delivery Units to Issuer. If the Freely Tradeable Value exceeds the realized net
proceeds from such resale, Issuer shall transfer to Dealer by the open of the regular trading session on the Exchange on the Exchange Trading Day immediately following the final day of the Resale Period (without giving effect to any extension
thereof pursuant to the immediately succeeding sentence), the amount of such excess (the “Additional Amount”) in cash or in a number of additional Shares or Share Termination Delivery Units, as the case may be, (“Make-whole
Shares”) in an amount that, based on the Relevant Price on such final day of the Resale Period (as if such day was the “Valuation Date” for purposes of computing such Relevant Price), has a dollar value equal to the Additional
Amount. The Resale Period shall continue to enable the sale of the Make-whole Shares in the manner contemplated by this Section 8(d). This provision shall be applied successively until the Additional Amount is equal to zero, subject to
Section 8(f). 
 (e) Beneficial Ownership. Notwithstanding anything to the contrary in the Agreement or this Confirmation, in no
event shall Dealer be entitled to receive, or shall be deemed to receive, any Shares if, immediately upon giving effect to such receipt of such Shares, (i) the “beneficial ownership” (within the meaning of Section 13 of the
Exchange Act and the rules promulgated thereunder) of Shares by Dealer, any of its affiliates subject to aggregation with Dealer for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act and all persons who
may form a “group” (within the meaning of Rule 13d-5(b)(1) under the Exchange Act) with Dealer with respect to “beneficial ownership” of any Shares (collectively, “Dealer Group”) would be equal to or greater than
8% or more of the outstanding Shares on the date of determination or (ii) Dealer, Dealer Group or any person whose ownership position would be aggregated with that of Dealer or Dealer Group (Dealer, Dealer Group or any such person, a
“Dealer Person”) under Section 203 of the Delaware General Corporation Law or other federal, state or local law, rule, regulation or regulatory order or organizational documents or contracts of Issuer applicable to ownership


  
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of Shares (“Applicable Restrictions”), would own, beneficially own, constructively own, control, hold the power to vote or otherwise meet a relevant definition of ownership in
excess of a number of Shares equal to (x) the number of Shares that would give rise to reporting or registration obligations or other requirements (including obtaining prior approval by a state or federal regulator) 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 subject a Dealer Person to restrictions (including restrictions relating to business combinations or
other designated transactions) or have any other adverse effect on a Dealer Person under Applicable Restrictions minus (y) 1.0% of the number of Shares outstanding on the date of determination (either such condition described in clause
(i) or (ii), an “Excess Ownership Position”). If any delivery owed to Dealer hereunder is not made, in whole or in part, as a result of this provision, Issuer’s obligation to make such delivery shall not be extinguished
and Issuer shall make such delivery as promptly as practicable after, but in no event later than one Exchange Business Day after, Dealer gives notice to Issuer that such delivery would not result in the existence of an Excess Ownership Position.

 (f) Limitations on Settlement by Issuer. Notwithstanding anything herein or in the Agreement to the contrary (except as set forth
in this Section 8(f)), in no event shall Issuer be required to deliver Shares in connection with the Transaction in excess of 807,000 Shares, as such number may be adjusted from time to time in accordance with the provisions hereof;
provided that no such adjustment shall cause the Capped Number to exceed the Available Shares (as in effect from time to time), other than as a result of actions of Issuer or events within Issuer’s control (the “Capped
Number”). Notwithstanding anything to the contrary in the Agreement or the Equity Definitions, such limitation shall not affect the calculation of any Payment Obligation (as defined in Section 8(b)), it being understood that if the
Share Termination Alternative applies pursuant to Section 8(b), the number of Shares deliverable pursuant to such Section shall not exceed the Capped Number. Issuer represents and warrants to Dealer (which representation and warranty shall be
deemed to be repeated on each day that the Transaction is outstanding) that the Capped Number will be equal to or less than the number of authorized but unissued Shares of Issuer that are not reserved for future issuance in connection with
transactions in the Shares (other than the Transaction) on the date of the determination of the Capped Number (such Shares, the “Available Shares”). In the event Issuer shall not have delivered the full number of Shares otherwise
deliverable as a result of this Section 8(f) (the resulting deficit, the “Deficit Shares”), Issuer shall be continually obligated to deliver Shares, from time to time until the full number of Deficit Shares have been delivered
pursuant to this paragraph, when, and to the extent, that (A) Shares are repurchased, acquired or otherwise received by Issuer or any of its subsidiaries after the Trade Date (whether or not in exchange for cash, fair value or any other
consideration), (B) authorized and unissued Shares previously reserved for issuance in respect of other transactions become no longer so reserved or (C) Issuer additionally authorizes any unissued Shares that are not reserved for other
transactions (such events as set forth in clauses (A), (B) and (C) above, collectively, the “Share Issuance Events”). In the event that there are any Deficit Shares or the proviso in the first sentence of this
Section 8(f) has prevented any adjustment to the Capped Number, (i) Issuer shall promptly notify Dealer of the occurrence of any of the Share Issuance Events (including the number of Shares subject to clause (A), (B) or (C) and the
corresponding number of Shares to be delivered) and, as promptly as reasonably practicable, deliver Dealer’s Pro Rata Percentage (as defined below) of such Shares thereafter, (ii) Issuer shall use its best efforts to cause Share Issuance
Events to the extent necessary to deliver the full number of Deficit Shares or cause the Capped Number to equal the Capped Number that would be in effect but for the proviso set forth in the first sentence of this Section 8(f), as the
case may be, and (iii) Issuer shall not, until Issuer’s obligations under the Transaction have been satisfied in full, use any Shares that become available for potential delivery to Dealer as a result of any Share Issuance Event for the
settlement or satisfaction of any transaction or obligation other than the Transaction or any other warrant transaction between Issuer and Dealer or reserve any such Shares for future issuance for any purpose other than to satisfy Issuer’s
obligations to Dealer under the Transaction or any other warrant transaction between Issuer and Dealer. “Dealer’s Pro Rata Percentage” means 30%. 

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

  
 22 













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

(iii) Section 11.2(e)(vii) of the Equity Definitions is hereby amended by (1) deleting the words “that may have
a dilutive or concentrative effect on the theoretical value of the relevant Shares” and replacing them with the words “that is the result of a corporate action by Issuer that has a material economic effect on the Shares or Warrants”.

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

(v) Section 12.9(b)(iv) of the Equity Definitions is hereby amended by (A) deleting (1) subsection (A) in its
entirety, (2) the phrase “or (B)” following subsection (A) and (3) the phrase “in each case” in subsection (B); (B) replacing “will lend” with “lends” in subsection (B); and (C) deleting the
phrase “neither the Non-Hedging Party nor the Lending Party lends Shares in the amount of the Hedging Shares or” in the penultimate sentence; “Lending Party” means a third party that
is not Issuer or an affiliate of Issuer that Dealer considers to be an acceptable counterparty (acting in good faith and in a reasonable manner in light of (x) other transactions that Dealer (or its agent or affiliate) may have entered into
with such party and (y) any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements or related policies and procedures are imposed by law or have been voluntarily adopted by Dealer,
but so long as such requirements or related policies and procedures are similarly applicable to transactions similar to the Transaction and consistently applied) that apply generally to transactions of a nature and kind similar to the transactions
contemplated with such party); 
 (vi) Section 12.9(b)(v) of the Equity Definitions is hereby amended by (A) adding the
word “or” immediately before subsection (B) and deleting the comma at the end of subsection (A); and (B)(1) deleting subsection (C) in its entirety, (2) deleting the word “or” immediately preceding subsection (C),
(3) replacing in the penultimate sentence the words “either party” with “the Hedging Party” and (4) deleting clause (X) in the final sentence; and 

(vii) Section 12.9(b)(vi) of the Equity Definitions is hereby amended by (A) adding the word “or”
immediately before subsection (B) and deleting the comma at the end of subsection (A); and (B)(1) deleting subsection (C) in its entirety, (2) deleting the word “or” immediately preceding subsection (C) and (3) deleting
the final sentence in its entirety and replacing it with the sentence “The Hedging Party will determine the Cancellation Amount payable by one party to the other.” 

  
 23 













 (i) Transfer and Assignment. Dealer may, without Issuer’s consent, transfer or
assign all or any part of its rights or obligations under the Transaction to any Affiliate of Dealer that (i) is a nationally recognized dealer in equity derivatives similar to the Transaction and (ii) has a long-term issuer rating that is
equal to or better than Dealer’s (or its ultimate parent’s) credit rating at the time of such transfer or assignment if the following conditions are satisfied (the “Transfer Conditions”): (1) the transferee agrees in
writing with Dealer to be bound by the terms of this Confirmation with respect to the transferred obligations; (2) as of the date of such transfer, and giving effect thereto, the transferee will not be required to withhold or deduct on account
of Tax from any payments under the Agreement or will be required to gross up for such Tax under Section 2(d)(i)(4) of the Agreement; (3) as of the date of such transfer, and giving effect thereto, Issuer will not be required to gross up
for such Tax under Section 2(d)(i)(4) of the Agreement; (4) no Event of Default where Dealer is the Defaulting Party or Termination Event where Dealer is the sole Affected Party has occurred and is continuing at the time of the transfer,
and no Event of Default or Termination Event will occur with respect to Issuer, Dealer or the transferee as a result of such transfer; (5) if to a transferee incorporated or organized in a jurisdiction other than the United States or United
Kingdom, after giving effect to such transfer, no material adverse legal or regulatory consequence shall result to Dealer, Issuer or the transferee as a result of such transfer; (6) Dealer shall have provided prompt written notice to Issuer of
such transfer; and (7) any side letters or other agreements modifying this Transaction shall simultaneously be transferred or assigned to the transferee. Dealer may transfer or assign all or any part of its rights or obligations under the
Transaction with the consent of the Issuer (such consent not to be unreasonably withheld). The Issuer may not transfer or assign all or any part of its rights or obligations under the Transaction. 

(j) Disclosure. Effective from the date of commencement of discussions concerning the Transaction, Issuer and each of its employees,
representatives, or other agents may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all materials of any kind (including opinions or other tax analyses) that are provided
to Issuer relating to such tax treatment and tax structure. 
 (k) Additional Termination Events. The occurrence of any of the
following shall constitute an Additional Termination Event with respect to which the Transaction shall be the sole Affected Transaction and Issuer shall be the sole Affected Party 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; provided that with respect to any Additional Termination Event, Dealer may choose to treat
part of the Transaction as the sole Affected Transaction, and, upon the termination of the Affected Transaction, a Transaction with terms identical to those set forth herein except with a Number of Warrants equal to the unaffected number of Warrants
shall be treated for all purposes as the Transaction, which shall remain in full force and effect: 
 (i) Dealer reasonably
determines that it is advisable to terminate a portion of the Transaction so that Dealer’s related hedging activities will comply with applicable securities laws, rules or regulations or related policies and procedures of Dealer (whether or not
such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer, but so long as such requirements, policies and procedures are similarly applicable to transactions similar to the Transaction and consistently
applied), or Dealer, despite using commercially reasonable efforts, is unable or reasonably determines that it is impractical or illegal to hedge its obligations pursuant to this Transaction in the public market without registration under the
Securities Act or as a result of any legal, regulatory or self-regulatory requirements; 
 (ii) at any time at which any
Excess Ownership Position occurs, Dealer, in its discretion, is unable to effect a transfer or assignment to a third party of the Transaction or any other transaction between the parties after using 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; provided that Dealer shall treat only that portion of the Transaction as the Affected Transaction as necessary so that
such 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); 

  
 24 













 (iii) any person files a Schedule TO, or any schedule, form or report under
the Exchange Act, disclosing that such person has acquired beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of Issuer’s capital stock entitling the
person to exercise 50% or more of the total voting power of all shares of Issuer’s capital stock entitled to vote generally in elections of directors, other than an acquisition by Issuer or any of its subsidiaries or any of Issuer’s
employee benefit plans; 
 (iv) Issuer (A) merges or consolidates with or into any other person, other than a subsidiary
of Issuer, another person merges into Issuer, or Issuer conveys, sells, transfers or leases all or substantially all of its assets to another person or (B) engages in any recapitalization, reclassification or other transaction in which all or
substantially all of the Shares are exchanged for or converted into cash, securities or other property, in either case other than any merger or consolidation that (x) does not result in a reclassification, conversion, exchange or cancellation
of the outstanding Shares or (y) is effected solely to change Issuer’s jurisdiction of incorporation and results in a reclassification, conversion or exchange of outstanding Shares solely into shares of common stock of the surviving
entity; provided that, notwithstanding the foregoing, any merger or consolidation set forth in the immediately preceding clause (iii) or any event specified in this clause (iv) shall not constitute an Additional Termination Event if
(x) at least 90% of the consideration paid for the Shares (excluding cash payments for fractional shares and cash payments made pursuant to any dissenters’ appraisal rights) in connection with such event consists of shares of common stock
traded on any of the New York Stock Exchange, the NASDAQ Global Market or the NASDAQ Global Select Market (or any of their respective successors) (or will be so traded or quoted immediately following the completion of the merger or consolidation or
such other transaction) and (y) following such transaction or transactions, the Shares will consist of such consideration, excluding cash payments for fractional shares; 

(vi) Issuer is liquidated or dissolved or holders of Shares approve any plan or proposal for Issuer’s liquidation or
dissolution; 
 (vii) the Shares are not listed for trading on any of the New York Stock Exchange, the NASDAQ Global Market
or the NASDAQ Global Select Market (or any of their respective successors); or 
 (viii) on any day during the period from
and including the Trade Date, to and including the final Expiration Date, (I) the Notional Unwind Shares (as defined below) as of such day exceeds a number of Shares equal to 75% of the Capped Number, or (II) Issuer makes a public
announcement of any transaction or event that, in the reasonable opinion of Dealer would, upon consummation of such transaction or upon the occurrence of such event, as applicable, and after giving effect to any applicable adjustments hereunder,
cause the Notional Unwind Shares immediately following the consummation of such transaction or the occurrence of such event to exceed a number of Shares equal to 75% of the Capped Number. The “Notional Unwind Shares” as of any day
is a number of Shares equal to (1) the amount that would be payable pursuant to Section 6 of the Agreement (determined as of such day as if an Early Termination Date had been designated in respect of the Transaction and as if Issuer were
the sole Affected Party and the Transaction were the sole Affected Transaction), divided by (2) the VWAP Price (determined as if such day were a Valuation Date). 

(l) Early Unwind. In the event the sale by Issuer of the Initial Securities (defined under the Purchase Agreement) is not consummated
pursuant to the Purchase Agreement for any reason by the close of business in New York on the Effective Date (or such later date as agreed upon by the parties) (the Effective Date or such later date being the “Early Unwind Date”),
the Transaction shall automatically terminate (the “Early Unwind”) on the Early Unwind Date and (i) the Transaction and all of the respective rights and obligations of Dealer and Issuer thereunder shall be cancelled and
terminated and (ii) each party shall be released and discharged by the other party from and agrees not to make any claim against the other party with respect to any obligations or liabilities of the other party arising out of and to be
performed in connection with the Transaction either prior to or after the Early Unwind Date. Dealer and Issuer 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. 
 (m) 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. 

  
 25 













 (n) Delivery of Cash. For the avoidance of doubt, nothing in this Confirmation shall
be interpreted as requiring Issuer to deliver or receive cash in respect of the settlement of the Transaction, except in circumstances where the required cash settlement thereof is permitted for classification of the contract as equity by ASC 815-40, Derivatives and Hedging – Contracts in Entity’s Own Equity, as in effect on the relevant Trade Date (including, without limitation, where Issuer so elects to deliver cash or fails timely to
elect to deliver Shares or Share Termination Delivery Property in respect of such settlement). 
 (o) Role of Agent. Morgan
Stanley & Co. LLC (“MS&CO”) is acting as agent for both parties but does not guarantee the performance of either party. (i) Neither Dealer nor Issuer shall contact the other with respect to any matter relating to
the Transaction without the direct involvement of MS&CO; (ii) MS&CO, Dealer and Issuer each hereby acknowledges that any transactions by Dealer or MS&CO with respect to Shares will be undertaken by Dealer as principal for its own
account; (iii) all of the actions to be taken by Dealer and MS&CO in connection with the Transaction shall be taken by Dealer or MS&CO independently and without any advance or subsequent consultation with Issuer; and (iv) MS&CO
is hereby authorized to act as agent for Issuer only to the extent required to satisfy the requirements of Rule 15a-6 under the Exchange Act in respect of the Transaction. 

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

  
 26 













 (q) Acknowledgment regarding certain UK Resolution Authority Powers. 

(i) Dealer is authorized by the Prudential Regulation Authority (“PRA”) and regulated by the Financial Conduct
Authority and the PRA, and is subject to the Bank of England’s resolution authority powers, as contained in the EU Bank Recovery and Resolution Directive, and transposed in the UK by the Banking Act 2009. The powers include the ability to
(a) suspend temporarily the termination and security enforcement rights of parties to a qualifying contract, and/or (b) bail-in certain liabilities owed by Dealer including the writing-down of the
value of certain liabilities and/or the conversion of such liabilities into equity holdings (as described in further detail below). Pursuant to PRA requirements, Dealer is required to ensure that counterparties to certain agreements it enters into
which are governed by non-EEA law contractually recognize the validity and applicability of the above-mentioned resolution powers, in order to ensure their effectiveness in cross border scenarios. 

(ii) The terms of this section apply only to the Transaction and constitute our entire agreement in relation to the matters
contained in this section, and do not extend or amend the resolution authority powers of the Bank of England or any replacement authority. The terms of this section may not be amended by any other agreements, arrangements or understandings between
Dealer and Issuer. By signing the Transaction, Issuer acknowledges and agrees that, notwithstanding the governing law of the Transaction, the Transaction is subject to, and Issuer will be bound by the effect of an application of, the Bank of
England’s (or replacement resolution authority’s) powers to (a) stay termination and/or security enforcement rights, and (b) bail-in liabilities. 

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

(s) 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). 

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

  
 27 













 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. 

EACH OF ISSUER 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. 

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

  
 28 













 Issuer hereby agrees (a) to check this Confirmation carefully and immediately upon
receipt so that errors or discrepancies can be promptly identified and rectified and (b) to confirm that the foregoing (in the exact form provided by Dealer) correctly sets forth the terms of the agreement between Dealer and Issuer with respect
to the Transaction, by manually signing this Confirmation or this page hereof as evidence of agreement to such terms and providing the other information requested herein and immediately returning an executed copy to Dealer. 

 

			
	Yours faithfully,
	
	MORGAN STANLEY & CO. INTERNATIONAL PLC
		
	By:	 	 /s/ P.A. Renaudin

		 	Name: P.A. Renaudin
		 	Title: Managing Director
	
	MORGAN STANLEY & CO. LLC
		
	By:	 	 /s/ Darren McCarley

		 	Name: Darren McCarley
		 	Title: Managing Director


  

			
	Agreed and Accepted By:
	
	NUVASIVE, INC.
		
	By:	 	 /s/ Matthew K. Harbaugh

		 	Name: Matthew K. Harbaugh
		 	Title: Executive Vice President and Chief Financial Officer













 Annex A 

For each Component of the Transaction, the Number of Warrants and Expiration Date is set forth below. 

 

									
	 Component Number
	  	Number of Warrants	 	  	Expiration Date	 
	 1
	  	 	23,755	 	  	 	09/01/23	 
	 2
	  	 	23,755	 	  	 	09/05/23	 
	 3
	  	 	23,755	 	  	 	09/06/23	 
	 4
	  	 	23,755	 	  	 	09/07/23	 
	 5
	  	 	23,755	 	  	 	09/08/23	 
	 6
	  	 	23,755	 	  	 	09/11/23	 
	 7
	  	 	23,755	 	  	 	09/12/23	 
	 8
	  	 	23,755	 	  	 	09/13/23	 
	 9
	  	 	23,755	 	  	 	09/14/23	 
	 10
	  	 	23,755	 	  	 	09/15/23	 
	 11
	  	 	23,755	 	  	 	09/18/23	 
	 12
	  	 	23,755	 	  	 	09/19/23	 
	 13
	  	 	23,755	 	  	 	09/20/23	 
	 14
	  	 	23,755	 	  	 	09/21/23	 
	 15
	  	 	23,755	 	  	 	09/22/23	 
	 16
	  	 	23,755	 	  	 	09/25/23	 
	 17
	  	 	23,755	 	  	 	09/26/23	 
	 18
	  	 	23,755	 	  	 	09/27/23	 
	 19
	  	 	23,755	 	  	 	09/28/23	 
	 20
	  	 	23,755	 	  	 	09/29/23	 
	 21
	  	 	23,755	 	  	 	10/02/23	 
	 22
	  	 	23,755	 	  	 	10/03/23	 
	 23
	  	 	23,755	 	  	 	10/04/23	 
	 24
	  	 	23,755	 	  	 	10/05/23	 
	 25
	  	 	23,756	 	  	 	10/06/23	 
	 26
	  	 	23,756	 	  	 	10/09/23	 
	 27
	  	 	23,756	 	  	 	10/10/23	 
	 28
	  	 	23,756	 	  	 	10/11/23	 
	 29
	  	 	23,756	 	  	 	10/12/23	 
	 30
	  	 	23,756	 	  	 	10/13/23	 
	 31
	  	 	23,756	 	  	 	10/16/23	 
	 32
	  	 	23,756	 	  	 	10/17/23	 
	 33
	  	 	23,756	 	  	 	10/18/23	 
	 34
	  	 	23,756	 	  	 	10/19/23	 
	 35
	  	 	23,756	 	  	 	10/20/23	 
	 36
	  	 	23,756	 	  	 	10/23/23	 
	 37
	  	 	23,756	 	  	 	10/24/23	 
	 38
	  	 	23,756	 	  	 	10/25/23	 
	 39
	  	 	23,756	 	  	 	10/26/23	 
	 40
	  	 	23,756	 	  	 	10/27/23	 
	 41
	  	 	23,756	 	  	 	10/30/23	 
	 42
	  	 	23,756	 	  	 	10/31/23	 
	 43
	  	 	23,756	 	  	 	11/01/23	 
	 44
	  	 	23,756	 	  	 	11/02/23	 
	 45
	  	 	23,756	 	  	 	11/03/23	 
	 46
	  	 	23,756	 	  	 	11/06/23	 
	 47
	  	 	23,756	 	  	 	11/07/23	 
	 48
	  	 	23,756	 	  	 	11/08/23	 
	 49
	  	 	23,756	 	  	 	11/09/23	 














									
	 50
	  	 	23,756	 	  	 	11/10/23	 
	 51
	  	 	23,756	 	  	 	11/13/23	 
	 52
	  	 	23,756	 	  	 	11/14/23	 
	 53
	  	 	23,756	 	  	 	11/15/23	 
	 54
	  	 	23,756	 	  	 	11/16/23	 
	 55
	  	 	23,756	 	  	 	11/17/23	 
	 56
	  	 	23,756	 	  	 	11/20/23	 
	 57
	  	 	23,756	 	  	 	11/21/23	 
	 58
	  	 	23,756	 	  	 	11/22/23	 
	 59
	  	 	23,756	 	  	 	11/24/23	 
	 60
	  	 	23,756	 	  	 	11/27/23	 
	 Total
	  	 	1,425,336	 	  			


  
 2