EX-10.5



 Exhibit 10.5 

EXECUTION VERSION 
  





         
  

					
		 	December 3, 2015
		
	To:	 	Vitamin Shoppe, Inc.
		 	300 Harmon Meadow Boulevard
		 	Secaucus, New Jersey 07094
		 	Attn:	 	Brenda Galgano, EVP, Chief Financial Officer
		 	Telephone:	 	(201) 624-3263
		 	Facsimile:	 	(201) 624-3824
		 	Email:	 	brenda.galgano@vitaminshoppe.com
		
	From:	 	JPMorgan Chase Bank, National Association
		 	London Branch
		 	25 Bank Street
		 	Canary Wharf
		 	London E14 5JP
		 	England
		
	Re:	 	Base Issuer Warrant Transaction

 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 JPMorgan Chase Bank, National Association, London Branch (“Dealer”) and Vitamin Shoppe, Inc. (“Issuer”). This
communication constitutes a “Confirmation” as referred to in the ISDA Master Agreement specified below. 
 1. This
Confirmation is subject to, and incorporates, the definitions and provisions of the 2006 ISDA Definitions (including the Annex thereto) (the “2006 Definitions”) and the definitions and provisions of the 2002 ISDA Equity Derivatives
Definitions (the “Equity Definitions”, and together with the 2006 Definitions, the “Definitions”), in each case as published by the International Swaps and Derivatives Association, Inc. (“ISDA”). In
the event of any inconsistency between the 2006 Definitions and the Equity Definitions, the Equity Definitions will govern. For purposes of the Equity Definitions, each reference herein to a Warrant shall be deemed to be a reference to a Call Option
or an Option, as context requires. 
 This Confirmation evidences a complete and binding agreement between Dealer and Issuer as to
the terms of the Transaction to which this Confirmation relates. This Confirmation shall be subject to an agreement (the “Agreement”) in the form of the 2002 ISDA Master Agreement as if Dealer and Issuer had executed an agreement in
such form (without any Schedule but with the elections set forth in this Confirmation and the election that the “Cross Default” provisions of Section 5(a)(vi) of the Agreement shall apply to Dealer and Issuer as if (w) the
“Threshold Amount” with respect to Dealer were three percent (3%) of shareholders’ equity of Dealer and the “Threshold Amount” with respect to Issuer were USD5,000,000, (x) the words “, or becoming capable at
such time of being declared,” were deleted from Section 5(a)(vi)(1) of the Agreement, (y) the term “Specified Indebtedness” had the meaning specified in Section 14 of the Agreement, except that such term did not include
obligations in respect of deposits received in the ordinary course of a party’s banking business and (z) the following language were added to the end of Section 5(a)(vi) of the Agreement: “Notwithstanding the foregoing, a default
under subsection (2) hereof shall not constitute an Event of Default if (1) the default was caused solely by error or omission of an administrative or operational nature; (2) funds were available to enable the party to make the
payment when due; and (3) the payment is made within two Exchange Business Days of such party’s receipt of written notice of its failure to pay.”). For the avoidance of doubt, the Transaction shall be the only transaction under the
Agreement. 

  
 JPMorgan Chase Bank,
National Association 
 Organised under the laws of the United States as a National Banking Association. 

Main Office 1111 Polaris Parkway, Columbus, Ohio 43240 

Registered as a branch in England & Wales branch No. BR000746 

Registered Branch Office 25 Bank Street, Canary Wharf, London E14 5JP 

Authorised by the Office of the Comptroller of the Currency in the jurisdiction of the USA. 

Authorised by the Prudential Regulation Authority. Subject to regulation by the Financial Conduct 

Authority and to limited regulation by the Prudential Regulation Authority. Details about the 

extent of our regulation by the Prudential Regulation Authority are available from us on request. 








 All provisions contained in, or incorporated by reference into, the Agreement will govern this
Confirmation except as expressly modified herein. In the event of any inconsistency between this Confirmation and either the Definitions or the Agreement, this Confirmation shall govern. For the avoidance of doubt, except to the extent of an express
conflict, the application of any provision of this Confirmation, the Agreement or the Equity Definitions shall not be construed to exclude or limit the application of any other provision of this Confirmation, the Agreement or the Equity 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:
	  	December 3, 2015
		
	 Effective Date:
	  	December 9, 2015, or such other date as agreed between the parties, subject to Section 8(n) below
		
	 Components:
	  	The Transaction will be divided into individual Components, each with the terms set forth in this Confirmation, and, in particular, with the Number of Warrants and Expiration Date set forth in this Confirmation. The payments and
deliveries to be made upon settlement of the Transaction will be determined separately for each Component as if each Component were a separate Transaction under the Agreement.
		
	 Warrant Style:
	  	European
		
	 Warrant Type:
	  	Call
		
	 Seller:
	  	Issuer
		
	 Buyer:
	  	Dealer
		
	 Shares:
	  	The common stock of Issuer, par value USD0.01 per share (Ticker Symbol: “VSI”).
		
	 Number of Warrants:
	  	For each Component, as provided in Annex A to this Confirmation.
		
	 Warrant Entitlement:
	  	One Share per Warrant
		
	 Strike Price:
	  	As provided in Annex A to this Confirmation. 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 USD31.17, except for any adjustment pursuant to the terms of this Confirmation and the Equity Definitions in connection with stock splits or similar changes to Issuer’s
capitalization.
		
	 Premium:
	  	As provided in Annex A to this Confirmation.
		
	 Premium Payment Date:
	  	The Effective Date
		
	 Exchange:
	  	New York Stock Exchange
		
	 Related Exchange:
	  	All Exchanges
		
	Procedures for Exercise:	  	
		
	 In respect of any Component:
	  	
		
	 Expiration Time:
	  	Valuation Time


  
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	 Expiration Date:
	  	As provided in Annex A to this Confirmation (or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day that is not already an Expiration Date for another Component); provided that if
that date is a Disrupted Day, the Expiration Date for such Component shall be the first succeeding Scheduled Trading Day that is not a Disrupted Day and is not or is not deemed to be an Expiration Date in respect of any other Component of the
Transaction hereunder; and provided further that if the Expiration Date has not occurred pursuant to the preceding proviso as of the Final Disruption Date, Dealer may elect in its 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) and, notwithstanding anything to the contrary in this Confirmation or the Definitions, the Relevant Price for such
Expiration Date shall be the prevailing market value per Share determined by the Calculation Agent in a commercially reasonable manner. “Final Disruption Date” means July 6, 2021. Notwithstanding the foregoing and anything to
the contrary in the Equity Definitions, if a Market Disruption Event occurs on any Expiration Date, the Calculation Agent may determine that such Expiration Date is a Disrupted Day only in part, in which case (i) the Calculation Agent, in its good
faith and commercially reasonable discretion, shall make adjustments to the Number of Warrants for the relevant Component for which such day shall be the Expiration Date and shall designate the Scheduled Trading Day determined in the manner
described in the second preceding sentence as the Expiration Date for the remaining Warrants for such Component, and (ii) the VWAP Price for such Disrupted Day shall be determined by the Calculation Agent in its good faith and commercially
reasonable discretion, based on transactions in the Shares on such Disrupted Day taking into account the nature and duration of such Market Disruption Event on such day. Any Scheduled Trading Day on which, as of the date hereof, the Exchange is
scheduled to close prior to its normal close of trading shall be deemed not to be a Scheduled Trading Day; if a closure of the Exchange prior to its normal close of trading on any Scheduled Trading Day is scheduled following the date hereof, then
such Scheduled Trading Day shall be deemed to be a Disrupted Day in full. Section 6.6 of the Equity Definitions shall not apply to any Valuation Date occurring on an Expiration Date.
		
	 Market Disruption Event:
	  	Section 6.3(a) of the Equity Definitions is hereby amended (A) by deleting the words “during the one hour period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation
Time, as the case may be,” in clause (ii) thereof and (B) by replacing the words “or (iii) an Early Closure.” therein with “(iii) an Early Closure, or (iv) a Regulatory Disruption.”
		
		  	Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the term “Scheduled Closing Time” in the fourth line thereof.
		
	 Regulatory Disruption:
	  	Any event that Dealer, in its reasonable discretion, based upon advice of counsel, determines makes it advisable with regard to any legal, regulatory or self-regulatory requirements or
related


  
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		  	policies and procedures (whether such requirements, policies or procedures are imposed by law or have been voluntarily and consistently adopted by Dealer), for Dealer to refrain from or decrease any market activity in connection
with the Transaction. Dealer shall notify Issuer as soon as reasonably practicable that a Regulatory Disruption has occurred and the Expiration Dates affected by it.
		
	 Automatic Exercise:
	  	Applicable; and means that the Number of Warrants for each Component will be deemed to be automatically exercised at the Expiration Time on the Expiration Date for such Component unless Dealer notifies Seller (by telephone or in
writing) prior to the Expiration Time on the Expiration Date that it does not wish Automatic Exercise to occur, in which case Automatic Exercise will not apply.
		
	 Issuer’s Telephone Number and Telex and/or Facsimile Number and Contact Details for purpose of Giving Notice:
	  	To be provided by Issuer.
		
	Settlement Terms:	  	
		
	 In respect of any Component:
	  	
		
	 Settlement Currency:
	  	USD
		
	 Net Share Settlement:
	  	On each Settlement Date, Issuer shall deliver to Dealer a number of Shares equal to the Number of Shares to be Delivered for such Settlement Date to the account specified by Dealer and cash in lieu of any fractional shares valued
at the Relevant Price on the Valuation Date corresponding to such 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, if any, of the VWAP Price on the Valuation
Date occurring on such Exercise Date over the Strike Price divided by (B) such VWAP Price.
		
		  	The Number of Shares to be Delivered shall be delivered by Issuer to Dealer no later than 5:00 P.M. (New York City time) on the relevant Settlement Date.
		
	 VWAP Price:
	  	For any Valuation Date, the dollar volume weighted average price per Share for such Valuation Date based on transactions executed during such Valuation Date, as reported on Bloomberg Page “VSI <Equity> AQR” (or
any successor thereto) or, in the event such price is not so reported on such Valuation Date for any reason or is manifestly incorrect, as reasonably determined by the Calculation Agent using a volume weighted method.
		
	 Other Applicable Provisions:
	  	The provisions of Sections 9.1(c), 9.8, 9.9, 9.11 (except 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 arising as a result of the fact that Seller is the Issuer of the Shares) and 9.12 of the Equity Definitions will be applicable as if “Physical
Settlement” applied to the Transaction.


  
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	Adjustments:	  	
		
	 In respect of any Component:
	  	
		
	 Method of Adjustment:
	  	Calculation Agent Adjustment
		
	 Extraordinary Dividend:
	  	Any Dividend that has an ex-dividend date occurring on or after the Trade Date and on or prior to the date on which Issuer satisfies all of its delivery obligations hereunder.
		
	 Dividend:
	  	Any dividend or distribution on the Shares (other than any dividend or distribution of the type described in Sections 11.2(e)(i), 11.2(e)(ii)(A) or 11.2(e)(ii)(B) of the Equity Definitions).
		
	Extraordinary Events:	  	
		
	 Merger Event:
	  	Applicable; provided that if an event occurs that constitutes both a Merger Event under Section 12.1(b) of the Equity Definitions and an Additional Termination Event under Section 8(l) of this Confirmation, the provisions
of Section 8(l) of this Confirmation shall apply.
		
	 Consequences of Merger Events:
	  	
		
	 (a)    Share-for-Share:
	  	Modified Calculation Agent Adjustment
		
	 (b)    Share-for-Other:
	  	Cancellation and Payment (Calculation Agent Determination)
		
	 (c)    Share-for-Combined:
	  	Modified Calculation Agent Adjustment
		
	 Tender Offer:
	  	Applicable; provided that Section 12.1(d) of the Equity Definitions is hereby amended by replacing “10%” with “25%”; and provided further that if an event occurs that constitutes both a Tender
Offer under Section 12.1(d) of the Equity Definitions and an Additional Termination Event under Section 8(l) of this Confirmation, the provisions of Section 8(l) of this Confirmation shall apply.
		
	 Consequences of Tender Offers:
	  	
		
	 (a)    Share-for-Share:
	  	Modified Calculation Agent Adjustment
		
	 (b)    Share-for-Other:
	  	Cancellation and Payment (Calculation Agent Determination) on that portion of the Other Consideration that consists of cash; Modified Calculation Agent Adjustment on the remainder of the Other Consideration
		
	 (c)    Share-for-Combined:
	  	Component Adjustment
		
	 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 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) of the Equity Definitions, and to preserve its hedging or hedge unwind
activities


  
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		  	in connection with the Transaction in a manner compliant with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to Dealer (whether or not such requirements, policies
or procedures are imposed by law or have been voluntarily and consistently adopted by Dealer), and if such conditions are not met or if the Calculation Agent determines that no adjustment that it could make under Section 12.2(e)(i) 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.
		
	 Consequences of Announcement Events:
	  	Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions; provided that 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”. 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 any entity of (x) any transaction or event that, if completed, would constitute a Merger Event or Tender Offer, (y) any acquisition by Issuer or any of its subsidiaries where the aggregate
consideration exceeds 25% of the market capitalization of Issuer as of the date of such announcement (an “Acquisition Transaction”) or (z) the intention to enter into a Merger Event or Tender Offer or an Acquisition Transaction, (ii) the
public announcement by Issuer of an intention to solicit or enter into, or to explore strategic alternatives or other similar undertaking that may include, a Merger Event or Tender Offer or an Acquisition Transaction or (iii) any subsequent public
announcement by any entity of a withdrawal, discontinuation, termination or other 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, as determined, in each case,
by the Calculation Agent. 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.
		
	 New Shares:
	  	In the definition of New Shares in Section 12.1(i) of the Equity Definitions, (a) the text in clause (i) thereof shall be deleted in its entirety (including the word “and” following such clause (i)) and replaced with
“publicly quoted, traded or listed on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors),” and (b) the phrase “and (iii) issued by (x) a corporation
organized under the laws of the United States, any State thereof or the District of Columbia (a “Domestic Corporation”) or (y) any entity that is not a Domestic Corporation, so long as, in the case of this clause (y), Dealer
determines, in its sole discretion, that treating such shares as New Shares would not result in an adverse effect on Dealer or its affiliates under the Transaction or in respect of any Hedge Position(s) for the Transaction” shall be inserted
immediately prior to the period.


  
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	 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 shall also constitute a Delisting if the Exchange is located in
the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors). If the Shares are immediately
re-listed, re-traded or re-quoted on any such exchange or quotation system, such exchange or quotation system shall thereafter be deemed to be the Exchange.
		
	 Additional 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 parenthetical after the word “regulation” in the second line thereof with “(including, for the
avoidance of doubt and without limitation, any tax law or the adoption or promulgation of new regulations authorized or mandated by existing statute)”; (ii) replacing the phrase “the interpretation” in the third line thereof with the
phrase “, or public announcement of, the formal or informal interpretation”; (iii) adding the words “or any Hedge Positions” after the word “Shares” in the clause (X) thereof; (iv) 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 (v) adding the words “, or holding, acquiring or disposing of Shares or any Hedge Positions
relating to,” after the words “obligations under” in clause (Y) thereof.
		
	 (b)    Failure to Deliver:
	  	Applicable
		
	 (c)    Insolvency Filing:
	  	Applicable
		
	 (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 two phrases at the end of such Section:
		
		  	“For the avoidance of doubt, the term “equity price risk” shall be deemed to include, but shall not be limited to, stock price and volatility risk. And, for the further avoidance of doubt, any such transactions or
assets referred to in phrases (A) or (B) above must be available on commercially reasonable pricing terms.”; and
		
		  	(ii) Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line thereof, after the words “to terminate the Transaction”, the words “or a portion of the Transaction affected by
such Hedging Disruption”.
		
	 (e)     Increased Cost of Hedging:
	  	Applicable
		
	 (f)     Loss of Stock Borrow:
	  	Applicable
		
	  Maximum Stock Loan Rate:
	  	As provided in Annex A to this Confirmation.


  
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	 (g)    Increased Cost of Stock Borrow:
	  	Applicable
		
	  Initial Stock Loan Rate:
	  	As provided in Annex A to this Confirmation.
		
	 Hedging Party:
	  	Dealer for all applicable Potential Adjustment Events and Extraordinary Events
		
	 Determining Party:
	  	Dealer for all applicable Extraordinary Events
		
	 Non-Reliance:
	  	Applicable
		
	 Agreements and Acknowledgments Regarding Hedging Activities:
	  	Applicable
		
	 Additional Acknowledgments:
	  	Applicable
		
	 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 sole Defaulting Party, if Dealer, as the Calculation
Agent, fails to timely make any calculation, adjustment or determination required to be made by the Calculation Agent hereunder or to perform any obligation of the Calculation Agent hereunder and such failure continues for five (5) Exchange Business
Days following notice to the Calculation Agent by 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 as the Calculation Agent. Upon
request from Issuer, the Calculation Agent shall promptly (but in no event later than within five (5) Exchange Business Days from the receipt of such request) provide Issuer with a written explanation describing in reasonable detail any calculation,
adjustment or determination made by it (including any quotations, market data or information from external sources used in making such calculation, adjustment or determination, as the case may be, but without disclosing the Calculation Agent’s
proprietary models or other information that may be proprietary or subject to contractual, legal or regulatory obligations to not disclose such information).
		
	 4. Account Details:
	  	
		
	 Dealer Payment Instructions:
	  	Bank:      JPMorgan Chase Bank, N.A.
		  	ABA#:             021000021
		  	Acct No.:         099997979
		  	Beneficiary:     JPMorgan Chase Bank, N.A. New York
		  	Ref:                  Derivatives
		
	 Issuer Payment Instructions:
	  	To be provided by Issuer.
		
	 5. Offices:
	  	
	
	 The Office of Dealer for the Transaction is: London

	
	 JPMorgan Chase Bank, National Association

	 London Branch

	 25 Bank Street
	  	
	 Canary Wharf
	  	
	 London E14 5JP
	  	
	 England
	  	
	
	 The Office of Issuer for the Transaction is: Not applicable



  
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		 	6. Notices: For purposes of this Confirmation:
			
		 	(a)	 	Address for notices or communications to Issuer:
				
		 		 	To:	 	Vitamin Shoppe, Inc.
		 		 		 	300 Harmon Meadow Boulevard
		 		 		 	Secaucus, New Jersey 07094
		 		 	Attn:	 	Brenda Galgano, EVP, Chief Financial Officer
		 		 	Telephone:	 	(201) 624-3263
		 		 	Facsimile:	 	(201) 624-3824
		 		 	Email:	 	brenda.galgano@vitaminshoppe.com
			
		 	(b)	 	Address for notices or communications to Dealer:
				
		 		 	To:	 	JPMorgan Chase Bank, National Association
		 		 		 	EDG Marketing Support
		 		 	Email:	 	edg_notices@jpmorgan.com
		 		 		 	edg.us.flow.corporates.mo@jpmorgan.com
		 		 	Facsimile No:	 	1-866-886-4506
				
		 		 	With a copy to:	 	
				
		 		 	Attention:	 	Santosh Sreenivasan
		 		 	Title:	 	Managing Director / Head, US Equity-Linked Capital Markets
		 		 	Telephone No:	 	212-622-5604
		 		 	Facsimile No:	 	212-622-6037
		 		 	Email Address:	 	santosh.sreenivasan@jpmorgan.com

 7. Representations, Warranties and Agreements: 

(a) In addition to the representations and warranties in the Agreement and those contained elsewhere herein, Issuer represents and warrants to
and for the benefit of, and agrees with, Dealer as follows: 
 (i) On the Trade Date, (A) Issuer is not 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 Dealer is not
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) or under FASB’s
Liabilities & Equity Project. 
 (iii) Prior to the Trade Date, Issuer shall deliver to Dealer a resolution of
Issuer’s board of directors authorizing the Transaction and such other certificate or certificates as Dealer shall reasonably request. 

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

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

  
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 (vi) On the Trade Date, (A) the assets of Issuer at their fair valuation
exceed the liabilities of Issuer, including contingent liabilities, (B) the capital of Issuer is adequate to conduct the business of Issuer and (C) Issuer has the ability to pay its debts and obligations as such debts mature and does not
intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature. 
 (vii) Issuer shall
not take any action to decrease the number of Available Shares below the Capped Number (each as defined below). 
 (viii) The
representations and warranties of Issuer set forth in Section 3 of the Agreement and Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of December 3, 2015 between Issuer and Merrill Lynch,
Pierce, Fenner & Smith Incorporated and J.P. Morgan Securities LLC, as representatives of the initial purchasers (the “Initial Purchasers”) party thereto are true and correct and are hereby deemed to be repeated to Dealer
as if set forth herein. 
 (ix) Issuer understands no obligations of Dealer to it hereunder will be entitled to the benefit
of deposit insurance and that such obligations will not be guaranteed by any Affiliate of Dealer or any governmental agency. 

(x) During the period starting on the first Expiration Date and ending on the last Expiration Date (the “Settlement
Period”), the Shares or securities that are convertible into, or exchangeable or exercisable for, Shares will not be subject to a “restricted period,” as such term is defined in Regulation M under the Exchange Act. 

(xi) On each day during the Settlement Period, Issuer will not, will cause its subsidiaries not to and will use commercially
reasonable efforts to cause its other “affiliated purchasers” (as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) not to directly or indirectly (including, without limitation, by means of any cash-settled or
other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a
trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except through Dealer. 

(xii) On the Trade Date and at all times until termination or earlier expiration of the Transaction, (A) a number of
Shares equal to the Capped Number have been reserved for issuance by all required corporate action of Issuer, (B) the Shares issuable upon exercise of the Warrants (the “Warrant Shares”) have been duly authorized and, when
delivered against payment therefor (which may include Net Share Settlement in lieu of cash) and otherwise as contemplated by the terms of the Warrant following the exercise of the Warrant in accordance with the terms and conditions of the Warrant,
will be validly issued, fully-paid and non-assessable and (C) the issuance of the Warrant Shares will not be subject to any preemptive or similar rights. 

(xiii) To the best of Issuer’s knowledge, no state or local (including non-U.S. jurisdictions) law, rule, regulation or
regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its
affiliates owning or holding (however defined) Shares. 
 (xiv) 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. 

(c) Each of Dealer and Issuer acknowledges that the offer and sale of the Transaction to it is intended to be exempt from registration under
the Securities Act of 1933, as amended (the “Securities Act”), by virtue of Section 4(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, (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 without a view to the distribution or resale thereof and (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. 

  
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 (d) 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 that it is the intent of the
parties that (A) this Confirmation is (i) a “securities contract,” as such term is defined in Section 741(7) of the Bankruptcy Code, with respect to which each payment and delivery hereunder or in connection herewith is a
“termination value,” “payment amount” or “other transfer obligation” within the meaning of Section 362 of the Bankruptcy Code and a “settlement payment,” within the meaning of Section 546 of the
Bankruptcy Code and (ii) a “swap agreement,” as such term is defined in Section 101(53B) of the Bankruptcy Code, with respect to which each payment and delivery hereunder or in connection herewith is a “termination
value,” “payment amount” or “other transfer obligation” within the meaning of Section 362 of the Bankruptcy Code and a “transfer,” as such term is defined in Section 101(54) of the Bankruptcy Code and a
“payment or other transfer of property” within the meaning of Sections 362 and 546 of the Bankruptcy Code, and (B) 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) Issuer shall deliver to Dealer an opinion of counsel, dated as
of the Effective Date and reasonably acceptable to Dealer in form and substance, with respect to the matters set forth in Section 3(a) of the Agreement, Section 7(a)(v) and Section 7(a)(xii) of this Confirmation (replacing, solely for
these purposes, the words “On the Trade Date and at all times until termination or earlier expiration of the Transaction” with the words “On the Effective Date”) and such other matters as Dealer may reasonably request. 

8. Other Provisions: 

(a) Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events. If Issuer shall owe Dealer any
amount pursuant to Sections 12.2, 12.3, 12.6, 12.7 or 12.9 of the Equity Definitions or pursuant to Section 6(d)(ii) of the Agreement (a “Payment Obligation”), Issuer shall have the right, in its sole discretion, to satisfy any
such Payment Obligation by the Share Termination Alternative (as defined below) by giving irrevocable telephonic notice to Dealer, confirmed in writing within one Scheduled Trading Day, no later than the later of (x) 9:30 A.M. (New York City
time) on the Merger Date, Tender Offer Date, Announcement Date, Early Termination Date or date of cancellation or termination in respect of an Extraordinary Event, as applicable and (y) two hours after becoming aware of the relevant event or
date (provided that, in the case of this clause (y), if such notice would otherwise be given during the regular trading session on the Exchange, such notice shall instead be given after the close of the regular trading session on the
Exchange) (“Notice of Share Termination”); provided that if Issuer does not elect to satisfy its Payment Obligation by the Share Termination Alternative, Dealer shall have the right, in its sole discretion, to elect to
require Issuer to satisfy its Payment Obligation by the Share Termination Alternative, notwithstanding Issuer’s failure to elect or election to the contrary; and provided further that Issuer shall not have the right to so elect (but, for
the avoidance of doubt, Dealer shall have the right to so elect) in the event (i) of an Insolvency, a Nationalization, a Tender Offer or a Merger Event, in each case, in which the consideration or proceeds to be paid to holders of Shares
consists solely of cash, (ii) of an Event of Default in which Issuer is the Defaulting Party or a Termination Event in which Issuer is the Affected Party or an Extraordinary Event, which Event of Default, Termination Event or Extraordinary
Event resulted from an event or events within Issuer’s control or (iii) that Issuer fails to remake the representation set forth in Section 7(a)(i) as of the date of such election. Upon such Notice of Share Termination, the following
provisions shall apply on the Scheduled Trading Day immediately following the Merger Date, the Tender Offer Date, Announcement Date, Early Termination Date or date of cancellation or termination in respect of an Extraordinary Event, as applicable:

  

			
	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 12.7 or 12.9 of the Equity Definitions or
Section 6(d)(ii) of the Agreement, as applicable, or such later date or dates as the Calculation Agent may reasonably determine (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 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 in its
discretion by commercially reasonable means and notified by the Calculation Agent to Issuer at the time of notification of the Payment Obligation.
		
	Share Termination Delivery Unit:	  	In the case of a Termination Event, Event of Default, Delisting or Additional Disruption Event, one Share or, in the case of an Insolvency, Nationalization, Merger Event or Tender Offer, one Share or a unit consisting of the
number or amount of each type of property received by a holder of one Share (without consideration of any requirement to pay cash or other consideration in lieu of fractional amounts of any securities) in such Insolvency, Nationalization, Merger
Event or Tender Offer, as applicable. If such Insolvency, Nationalization, Merger Event or Tender Offer involves a choice of consideration to be received by holders, such holder shall be deemed to have elected to receive the maximum possible amount
of cash.
		
	Failure to Deliver:	  	Applicable
		
	Other applicable provisions:	  	If Share Termination Alternative is applicable, the provisions of Sections 9.1(c), 9.8, 9.9 and 9.11 (except 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 arising as a result of the fact that Seller is the issuer of the Shares or any portion of the Share Termination Delivery
Units) 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”.

 (b) Private Placement Procedures. (i) If, in the reasonable judgment of Dealer, for any
reason, any Shares or any securities of Issuer or its affiliates comprising any Share Termination Delivery Units deliverable to Dealer hereunder (any such Shares or securities, “Delivered Securities”) would not be
immediately freely transferable by Dealer under Rule 144 under the Securities Act, then the provisions set forth in this Section 8(b) shall apply. In such event, Issuer shall deliver additional Delivered Securities so that the value of such
Delivered Securities, as determined by the Calculation Agent to reflect an appropriate liquidity discount, equals the value of the number of Delivered Securities that would otherwise be deliverable if such Delivered Securities were freely tradeable
(without prospectus delivery) upon receipt by Dealer (such value, the “Freely Tradeable Value”).  

(ii) (A) Dealer (or an Affiliate of Dealer designated by Dealer) and any potential institutional purchaser of any such Delivered
Securities from Dealer or such Affiliate identified by Dealer shall be afforded a commercially reasonable opportunity to conduct a due diligence investigation in compliance with applicable law with respect to Issuer customary in scope for private
placements of equity securities (including, without limitation, the right to have made available to them for inspection all financial and other records, pertinent corporate documents and other information reasonably requested by them); 

(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 Delivered Securities by Issuer to Dealer or such Affiliate and the private resale of such shares by Dealer or such Affiliate,
substantially similar to private placement purchase agreements customary for private placements of equity securities, in form and substance commercially reasonably satisfactory to Dealer and Issuer, which Private Placement Agreement shall include,
without limitation, provisions substantially similar to those contained in such private placement purchase agreements relating to the indemnification of, and contribution in connection with the liability of, Dealer and its Affiliates and Issuer,
shall provide for the payment by Issuer of all expenses in connection with such resale, including all fees and expenses of counsel for Dealer, shall contain representations, warranties and agreements of Issuer reasonably necessary or advisable to
establish and maintain the availability of an exemption from the registration requirements of the Securities Act for such resale, 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; and 

  
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 (C) Issuer agrees that (i) any Delivered Securities 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 Delivered Securities, 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 any Delivered
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). 
 (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 resale of the Shares or Share Termination Delivery Units, as the case may be, by Dealer (or any such affiliate of Dealer). 

(iii) Dealer or its affiliate may sell 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 completes the sale of all
such Shares or Share Termination Delivery Units, as the case may be, or a sufficient number of Shares or Share Termination Delivery Units, as the case may be, so that the realized net proceeds of such sales exceed the Freely Tradeable Value (such
amount of the Freely Tradeable Value, the “Required Proceeds”). If any of such delivered Shares or Share Termination Delivery Units remain after such realized net proceeds exceed the Required Proceeds, Dealer shall return such
remaining Shares or Share Termination Delivery Units to Issuer. If the Required Proceeds exceed the realized net proceeds from such resale, Issuer shall transfer to Dealer by the open of the regular trading session on the Exchange on the Exchange
Trading Day immediately following the last day of the Resale Period the amount of such excess (the “Additional Amount”) in cash or in a number of additional Shares or Share Termination Delivery Units, as the case may be,
(“Make-whole Shares”) in an amount that, based on the Relevant Price on the last day of the Resale Period (as if such day was the “Valuation Date” for purposes of computing such Relevant Price), has a dollar value equal to
the Additional Amount. The Resale Period shall continue to enable the sale of the Make-whole Shares in the manner contemplated by this Section 8(b)(iii). This provision shall be applied successively until the Additional Amount is equal to zero,
subject to Section 8(d). 
 (c) 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 in connection with this Transaction if, immediately upon giving effect to such receipt of such Shares, (i) Dealer’s Beneficial
Ownership would be equal to or greater than 8% of the outstanding Shares, (ii) Dealer, or any “affiliate” or “associate” of Dealer, would be an “interested stockholder” of Issuer, as all such terms are defined in
Section 203 of the Delaware General Corporation Law or (iii) Dealer, Dealer Group (as defined below) or any person whose ownership position would be aggregated with that of Dealer or Dealer Group (Dealer, Dealer Group or any such person, a
“Dealer Person”) under any federal, state or local laws, regulations, regulatory orders or organizational documents or contracts of Issuer that are, in each case, applicable to ownership of Shares (“Applicable
Restrictions”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership 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, or would be reasonably likely to result in an adverse effect on a Dealer Person, under
Applicable Restrictions, as determined by Dealer in good faith and in a commercially reasonable manner, and with respect to which such requirements have not been met or the relevant approval has not been received or that would give rise to any
consequences under the constitutive documents of Issuer or any contract or agreement to which Issuer is a party, in each case minus (y) 1% of the number of Shares outstanding on the date of determination (each of clause (i),
(ii) and (iii) above, an “Ownership Limitation”). If any delivery owed to Dealer hereunder is not made, in whole or in part, as a result of an Ownership Limitation, Dealer’s right to receive 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 any of such Ownership Limitations
being breached. “Dealer’s Beneficial Ownership” means the “beneficial ownership” (within the meaning of Section 13 of the Exchange Act and the rules promulgated thereunder (collectively, “Section
13”)) of Shares, without duplication, by Dealer, together with any of its affiliates or other person subject to aggregation with Dealer under Section 13 for purposes of “beneficial ownership”, or by any “group”
(within the meaning of Section 13) of which Dealer is or may be deemed to be a part (Dealer and any 

  
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such affiliates, persons and groups, collectively, “Dealer Group”) (or, to the extent that, as a result of a change in law, regulation or interpretation after the date hereof,
the equivalent calculation under Section 16 of the Exchange Act and the rules and regulations thereunder results in a higher number, such number). Notwithstanding anything in the Agreement or this Confirmation to the contrary, Dealer (or the
affiliate designated by Dealer pursuant to Section 8(k) below) shall not become the record or beneficial owner, or otherwise have any rights as a holder, of any Shares that Dealer (or such affiliate) is not entitled to receive at any time
pursuant to this Section 8(c), until such time as such Shares are delivered pursuant to this Section 8(c). 
 (d) Limitations
on Settlement by Issuer. Notwithstanding anything herein or in the Agreement to the contrary, in no event shall Issuer be required to deliver Shares in connection with the Transaction in excess of the Capped Number of Shares (as provided in
Annex A to this Confirmation), subject to adjustment from time to time in accordance with the provisions of this Confirmation or the Definitions; provided that no such adjustment shall cause the Capped Number to exceed the Available Shares,
other than an adjustment resulting from actions of Issuer or events within Issuer’s control (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 is equal to or less than the number of authorized but unissued Shares of the Issuer that are not reserved for future issuance in connection with transactions in the
Shares (other than the Transaction) on the date of the determination of the Capped Number (such Shares, the “Available Shares”). In the event Issuer shall not have delivered the full number of Shares otherwise
deliverable as a result of this Section 8(d) (the resulting deficit, the “Deficit Shares”), Issuer shall be continually obligated to deliver, from time to time until the full number of Deficit Shares have been
delivered pursuant to this paragraph, Shares when, and to the extent, that (i) 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), (ii) authorized and unissued Shares previously reserved for issuance in respect of other transactions become no longer so reserved or (iii) Issuer additionally authorizes any unissued Shares that are not reserved
for other transactions. Issuer shall immediately notify Dealer of the occurrence of any of the foregoing events (including the number of Shares subject to clause (i), (ii) or (iii) and the corresponding number of Shares to be delivered)
and promptly deliver such Shares thereafter. 
 (e) Right to Extend. Dealer may postpone any Exercise Date or
Settlement Date or any other date of valuation or delivery with respect to some or all of the relevant Warrants (in which event the Calculation Agent shall make appropriate adjustments to the Number of Shares to be Delivered with respect to one or
more Components), if Dealer determines, in its reasonable discretion, that such extension is reasonably necessary or appropriate (i) to preserve Dealer’s hedging or hedge unwind activity hereunder in light of existing liquidity conditions
in the cash market, the stock loan market or any other relevant market or (ii) to enable Dealer to effect purchases of Shares in connection with its 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 applicable to Dealer (whether such requirements, policies or procedures are
imposed by law or have been voluntarily and consistently adopted by Dealer). 
 (f) Equity Rights. Dealer acknowledges
and agrees that this Confirmation is not intended to convey to it rights with respect to the Transaction that are senior to the claims of common stockholders in the event of Issuer’s bankruptcy. For the avoidance of doubt, the parties agree
that the preceding sentence shall not apply at any time other than during Issuer’s bankruptcy to any claim arising as a result of a breach by Issuer of any of its obligations under this Confirmation or the Agreement. For the avoidance of doubt,
the parties acknowledge that this Confirmation is not secured by any collateral that would otherwise secure the obligations of Issuer herein under or pursuant to any other agreement. 

(g) Amendments to Equity Definitions. The following amendments shall be made to the Equity Definitions: 

(i) Section 11.2(a) of the Equity Definitions is hereby amended by deleting the words “diluting or
concentrative” and replacing them with the word “material” and adding the phrase “or Warrants” at the end of the sentence; 

(ii) The first sentence of Section 11.2(c) of the Equity Definitions, prior to clause (A) thereof, is hereby amended
to read as follows: ‘(c) If “Calculation Agent Adjustment” is specified as the Method of Adjustment in the related Confirmation of a Share Option Transaction, then following the announcement or occurrence of any Potential Adjustment
Event, the Calculation Agent will determine whether such Potential Adjustment Event has a material effect on the theoretical value of the relevant Shares or options on the Shares 

  
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and, if so, will (i) make appropriate adjustment(s), if any, to any one or more of:’ and, the portion of such sentence immediately preceding clause (ii) thereof is hereby amended
by (x) deleting the words “diluting or concentrative” and replacing them with the word “material” and (y) deleting the words “(provided that no adjustments will be made to account solely for changes in volatility,
expected dividends, stock loan rate or liquidity relative to the relevant Shares)” and replacing them with the words “(and, for the avoidance of doubt, adjustments may be made to account solely for changes in volatility, expected
dividends, stock loan rate or liquidity relative to the relevant Shares)”; 
 (iii) Section 11.2(e)(vii) of the
Equity Definitions is hereby amended by deleting the words “diluting or concentrative” and replacing them with the word “material” and adding the phrase “or Warrants” at the end of the sentence; 

(iv) Section 12.6(a)(ii) of the Equity Definitions is hereby amended by (1) deleting from the fourth line thereof the
word “or” after the word “official” and inserting a comma therefor, and (2) deleting the semi-colon at the end of subsection (B) thereof and inserting the following words therefor “or (C) at Dealer’s
option, the occurrence of any of the events specified in Section 5(a)(vii) (1) through (9) of the ISDA Master Agreement with respect to that Issuer.”; 

(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); and (B) 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; and 
 (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) and (3) replacing in the penultimate sentence the words “either party” with “the Hedging Party” and (4) deleting clause (X) in the
final sentence. 
 (h) Transfer and Assignment. Dealer may transfer or assign its rights and obligations hereunder (except with
respect to its role as Calculation Agent, the transfer or assignment of which shall in all cases require Issuer’s prior written consent) and under the Agreement, in whole or in part, at any time to any person or entity whatsoever without the
consent of Issuer; provided that the transferee or assignee shall provide Issuer with a complete and accurate U.S. Internal Revenue Service Form W-9, W-8ECI or W-8IMY accompanied by a Form W-9 or W-8ECI (as applicable) prior to becoming a
party to the Transaction. At any time at which any Ownership Limitation or a Hedging Disruption (assuming a commercially reasonable Hedge Position) exists, if Dealer is unable to effect a transfer or assignment to a third party after using its
commercially reasonable efforts on pricing terms and within a time period reasonably acceptable to Dealer such that an Ownership Limitation or a Hedging Disruption (assuming a commercially reasonable Hedge Position), as the case may be, no longer
exists, Dealer may designate any Scheduled Trading Day as an Early Termination Date with respect to a portion (the “Terminated Portion”) of the Transaction, such that such Ownership Limitation or Hedging Disruption, as the case may
be, no longer exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment or delivery shall be made pursuant to Section 6 of the Agreement and Section 8(b) of this
Confirmation as if (i) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Terminated Portion of the Transaction, (ii) Issuer shall be the sole Affected Party with respect to such partial
termination and (iii) such portion of the Transaction shall be the only Terminated Transaction. 
 (i) Adjustments. For
the avoidance of doubt, whenever the Calculation Agent is called upon to make an adjustment pursuant to the terms of this Confirmation or the Definitions to take into account the effect of an event, the Calculation Agent shall make such adjustment
by reference to the effect of such event on the Hedging Party, assuming that the Hedging Party maintains a commercially reasonable hedge position. 

(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) Designation by Dealer. Notwithstanding any
other provision in this Confirmation to the contrary requiring or allowing Dealer to purchase, sell, receive or deliver any Shares or other securities to or from Issuer, Dealer may designate any of its affiliates to purchase, sell, receive or
deliver such shares or other securities and otherwise to perform Dealer obligations in respect of the Transaction and any such designee may assume such obligations. Dealer shall be discharged of its obligations to Issuer to the extent of any such
performance. 

  
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 (l) 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; 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, based on advice of counsel, to terminate a portion of the Transaction so
that Dealer’s commercially reasonable related hedging activities will comply with applicable securities laws, rules or regulations or related policies and procedures of Dealer (whether such requirements, policies or procedures are imposed by
law or have been voluntarily and consistently adopted by Dealer); 
 (ii) a “person” or “group” within
the meaning of Section 13(d) of the Exchange Act, other than Issuer, its wholly owned subsidiaries and its and their employee benefit plans, (I) has become the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under
the Exchange Act (without giving effect to the proviso in clause (d)(1)(i) thereof), of the common equity of Issuer representing more than 50% of the voting power of such common equity and (II) files a Schedule TO or any schedule, form or report
under the Exchange Act disclosing that an event described in (I) has occurred (provided that a “person” or “group” shall not be deemed a beneficial owner of, or to own beneficially, (x) any securities tendered
pursuant to a tender or exchange offer made by or on behalf of such “person” or “group” or any of their affiliates until such tendered securities are accepted for purchase or exchange thereunder, or (y) any securities if
such beneficial ownership (A) arises solely as a result of a revocable proxy delivered in response to a proxy or consent solicitation made pursuant to the applicable rules and regulations under the Exchange Act, and (B) is not also then
reportable on Schedule 13D or Schedule 13G (or any successor schedule) under the Exchange Act); provided that any transaction or transactions set forth in this clause (ii) shall not constitute an Additional Termination Event if
(x) at least 90% of the consideration received or to be received by holders of the Shares, excluding cash payments for fractional Shares, in connection with such transaction or transactions consists of shares of common stock that are listed or
quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or any of their respective successors) or will be so listed or quoted when issued or exchanged in connection with such transaction or
transactions, and (y) as a result of such transaction or transactions, the Shares will consist of such consideration, excluding cash payments for fractional Shares; 

(iii) consummation of (I) any recapitalization, reclassification or change of the Shares (other than changes resulting
from a subdivision or combination) as a result of which the Shares would be converted into, or exchanged for, stock, other securities, other property or assets, (II) any share exchange, consolidation or merger of Issuer pursuant to which the Shares
will be converted into cash, securities or other property or assets or (III) any sale, lease or other transfer in one transaction or a series of transactions of all or substantially all of the consolidated assets of Issuer and its subsidiaries,
taken as a whole, to any person other than Issuer and/or one or more of Issuer’s wholly owned subsidiaries; provided that any transaction or transactions set forth in this clause (iii) shall not constitute an Additional Termination
Event if (x) at least 90% of the consideration received or to be received by holders of the Shares, excluding cash payments for fractional Shares, in connection with such transaction or transactions consists of shares of common stock that are
listed or quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or any of their respective successors) or will be so listed or quoted when issued or exchanged in connection with such transaction
or transactions, and (y) as a result of such transaction or transactions, the Shares will consist of such consideration, excluding cash payments for fractional Shares; or 

(iv) other than in a transaction described in clause (iii) above, Issuer’s stockholders approve any plan or proposal
for the liquidation or dissolution of Issuer. 
 (m) No Netting and Set-off. Each party waives any and all rights it may have to set
off obligations arising under the Agreement and the Transaction against other obligations between the parties, whether arising under any other agreement, applicable law or otherwise. 

  
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 (n) Early Unwind. In the event the sale by Issuer of the Initial
Securities (as defined under the Purchase Agreement) is not consummated with the Initial Purchasers pursuant to the Purchase Agreement for any reason by the close of business in New York on December 9, 2015 (or such later date as agreed upon by
the parties) (December 9, 2015 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) only in the case where such Early Unwind occurred as a result of events within Issuer’s control, Issuer shall pay to Dealer an
amount in cash equal to the aggregate amount of costs and expenses relating to the unwinding of Dealer’s hedging activities in respect of the Transaction (including market losses incurred in reselling any Shares purchased by Dealer or its
affiliates in connection with such hedging activities) or, at the election of Issuer, deliver to Dealer Shares with a value equal to such amount, as commercially reasonably determined by the Calculation Agent, in which event the parties shall enter
into customary and commercially reasonable documentation relating to the exempt resale of such Shares; provided that, if Issuer makes such election to deliver Shares, notwithstanding the foregoing, the number of Shares so
delivered shall not exceed a number of Shares equal to the Capped Number. Following such termination, cancellation and payment, each party shall be released and discharged by the other party from and agrees not to make any claim against the other
party with respect to any obligations or liabilities of either party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date. Dealer and Issuer represent and acknowledge to the other that
upon an Early Unwind and following the payment or delivery referred to above, all obligations with respect to the Transaction shall be deemed fully and finally discharged. 

(o) Wall Street Transparency and Accountability Act of 2010. The parties hereby agree that none of (v) Section 739 of
the Wall Street Transparency and Accountability Act of 2010 (“WSTAA”), (w) any similar legal certainty provision in any legislation enacted, or rule or regulation promulgated, on or after the Trade Date,
(x) the enactment of WSTAA or any regulation under the WSTAA, (y) any requirement under WSTAA nor (z) an amendment made by WSTAA, shall limit or otherwise impair either party’s 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, Loss of Stock Borrow, Increased Cost of Stock Borrow, an Excess Ownership Position or Illegality (as defined in the
Agreement)). 
 (p) Tax Matters 

(i) 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. 

(ii) 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. 

(iii) Tax documentation. For the purpose of Section 4(a)(i) 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 requested by Dealer. 

(iv) Tax Representations. For the purpose of Section 3(f) of the Agreement, Issuer is a corporation for U.S.
federal income tax purposes and is organized under the laws of the State of Delaware. 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. 

  
 17 








 (q) Role of Agent. Each party agrees and acknowledges that (i) J.P. Morgan Securities
LLC, an affiliate of Dealer (“JPMS”), has acted solely as agent and not as principal with respect to the Transaction and (ii) JPMS has no obligation or liability, by way of guaranty, endorsement or otherwise, in any manner in
respect of the Transaction (including, if applicable, in respect of the settlement thereof). Each party agrees it will look solely to the other party (or any guarantor in respect thereof) for performance of such other party’s obligations under
the Transaction. 
 (r) Waiver of Trial by Jury. EACH OF ISSUER AND BUYER 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 THE
TRANSACTION OR THE ACTIONS OF BUYER OR ITS AFFILIATES IN THE NEGOTIATION, PERFORMANCE OR ENFORCEMENT HEREOF. 
 (s)
Governing Law; Jurisdiction. THIS CONFIRMATION AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS CONFIRMATION SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. THE PARTIES HERETO IRREVOCABLY SUBMIT
TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES COURT FOR THE SOUTHERN DISTRICT OF NEW YORK IN CONNECTION WITH ALL MATTERS RELATING HERETO AND WAIVE ANY OBJECTION TO THE LAYING OF VENUE IN, AND ANY CLAIM OF
INCONVENIENT FORUM WITH RESPECT TO, THESE COURTS. 
 [Signature Page Follows] 

  
 18 








 



         
 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,
	
	J.P. Morgan Securities LLC, as agent for JPMorgan Chase Bank, National Association
		
	By:	 	 /s/ Santosh Sreenivasan

		 	Name:	 	Santosh Sreenivasan
		 	Title:	 	Managing Director


  

					
	Agreed and Accepted By:
	
	VITAMIN SHOPPE, INC.
		
	By:	 	 /s/ Brenda Galgano

		 	Name:	 	Brenda Galgano
		 	Title:	 	Executive Vice President, 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.	  	19,658	  	March 1, 2021
	2.	  	19,658	  	March 2, 2021
	3.	  	19,658	  	March 3, 2021
	4.	  	19,658	  	March 4, 2021
	5.	  	19,658	  	March 5, 2021
	6.	  	19,658	  	March 8, 2021
	7.	  	19,658	  	March 9, 2021
	8.	  	19,658	  	March 10, 2021
	9.	  	19,658	  	March 11, 2021
	10.	  	19,658	  	March 12, 2021
	11.	  	19,658	  	March 15, 2021
	12.	  	19,658	  	March 16, 2021
	13.	  	19,658	  	March 17, 2021
	14.	  	19,658	  	March 18, 2021
	15.	  	19,658	  	March 19, 2021
	16.	  	19,658	  	March 22, 2021
	17.	  	19,658	  	March 23, 2021
	18.	  	19,658	  	March 24, 2021
	19.	  	19,658	  	March 25, 2021
	20.	  	19,658	  	March 26, 2021
	21.	  	19,658	  	March 29, 2021
	22.	  	19,658	  	March 30, 2021
	23.	  	19,658	  	March 31, 2021
	24.	  	19,658	  	April 1, 2021
	25.	  	19,658	  	April 5, 2021
	26.	  	19,658	  	April 6, 2021
	27.	  	19,658	  	April 7, 2021
	28.	  	19,658	  	April 8, 2021
	29.	  	19,658	  	April 9, 2021
	30.	  	19,658	  	April 12, 2021
	31.	  	19,658	  	April 13, 2021
	32.	  	19,658	  	April 14, 2021
	33.	  	19,658	  	April 15, 2021
	34.	  	19,658	  	April 16, 2021
	35.	  	19,658	  	April 19, 2021
	36.	  	19,658	  	April 20, 2021
	37.	  	19,658	  	April 21, 2021
	38.	  	19,658	  	April 22, 2021
	39.	  	19,658	  	April 23, 2021
	40.	  	19,658	  	April 26, 2021
	41.	  	19,658	  	April 27, 2021
	42.	  	19,658	  	April 28, 2021
	43.	  	19,658	  	April 29, 2021
	44.	  	19,658	  	April 30, 2021
	45.	  	19,658	  	May 3, 2021
	46.	  	19,658	  	May 4, 2021
	47.	  	19,658	  	May 5, 2021
	48.	  	19,658	  	May 6, 2021
	49.	  	19,658	  	May 7, 2021
	50.	  	19,658	  	May 10, 2021
	51.	  	19,658	  	May 11, 2021


  
 Annex A-1 









					
	52.	  	19,658	  	May 12, 2021
	53.	  	19,658	  	May 13, 2021
	54.	  	19,658	  	May 14, 2021
	55.	  	19,658	  	May 17, 2021
	56.	  	19,658	  	May 18, 2021
	57.	  	19,658	  	May 19, 2021
	58.	  	19,658	  	May 20, 2021
	59.	  	19,658	  	May 21, 2021
	60.	  	19,658	  	May 24, 2021
	61.	  	19,658	  	May 25, 2021
	62.	  	19,658	  	May 26, 2021
	63.	  	19,658	  	May 27, 2021
	64.	  	19,659	  	May 28, 2021
	65.	  	19,659	  	June 1, 2021
	66.	  	19,659	  	June 2, 2021
	67.	  	19,659	  	June 3, 2021
	68.	  	19,659	  	June 4, 2021
	69.	  	19,659	  	June 7, 2021
	70.	  	19,659	  	June 8, 2021
	71.	  	19,659	  	June 9, 2021
	72.	  	19,659	  	June 10, 2021
	73.	  	19,659	  	June 11, 2021
	74.	  	19,659	  	June 14, 2021
	75.	  	19,659	  	June 15, 2021
	76.	  	19,659	  	June 16, 2021
	77.	  	19,659	  	June 17, 2021
	78.	  	19,659	  	June 18, 2021
	79.	  	19,659	  	June 21, 2021
	80.	  	19,659	  	June 22, 2021

  

			
	Strike Price:	 	USD52.9890
		
	Premium:	 	USD5,637,500
		
	Maximum Stock Loan Rate:	 	100 basis points
		
	Initial Stock Loan Rate:	 	Prior to December 2, 2020, zero basis points, and thereafter, 25 basis points
		
	Capped Number of Shares:	 	3,145,314


  
 Annex A-2