ex104-bofa_patkxbasewarr






        #95272024v5     Certain account details on page 11 have been redacted as they are both 1) immaterial and 2) the type of  information that the Registrant customarily treats as private and confidential. Redacted information is indicated  with [***].    Bank of America, N.A.  One Bryant Park  New York, NY 10036  December 7, 2021  To:  Patrick Industries, Inc.   107 W. Franklin Street,      P.O. Box 638      Elkhart, Indiana 46515  Attention:  Chief Financial Officer  Telephone No.: (574) 294-7511  Facsimile No.: (574) 522-5213    Re:  Base Warrants  The purpose of this letter agreement (this “Confirmation”) is to confirm the terms and conditions of the  Warrants issued by Patrick Industries, Inc. (“Company”) to Bank of America, N.A. (“Dealer”) as of the Trade Date  specified below (the “Transaction”).  This letter agreement constitutes a “Confirmation” as referred to in the ISDA  Master Agreement specified below.  Each party further agrees that this Confirmation together with the Agreement  evidence a complete binding agreement between Company and Dealer as to the subject matter and terms of the  Transaction to which this Confirmation relates, and shall supersede all prior or contemporaneous written or oral  communications with respect thereto.  The definitions and provisions contained in the 2002 ISDA Equity Derivatives Definitions (the “Equity  Definitions”), as published by the International Swaps and Derivatives Association, Inc. (“ISDA”), are incorporated  into this Confirmation. In the event of any inconsistency between the Equity Definitions and this Confirmation, this  Confirmation shall govern.    Each party is hereby advised, and each such party acknowledges, that the other party has engaged in, or  refrained from engaging in, substantial financial transactions and has taken other material actions in reliance upon the  parties’ entry into the Transaction to which this Confirmation relates on the terms and conditions set forth below.  1. This Confirmation evidences a complete and binding agreement between Dealer and Company as to the terms  of the Transaction to which this Confirmation relates.  This Confirmation shall supplement, form a part of, and be  subject to an agreement in the form of the 2002 ISDA Master Agreement (the “Agreement”) as if Dealer and Company  had executed an agreement in such form on the date hereof (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) U.S. Dollars  (“USD”) as the Termination Currency, and (ii) (a) the election that the “Cross Default” provisions of Section 5(a)(vi)  of the Agreement shall apply to Company with a “Threshold Amount” of USD 50,000,000, (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 Default if (x) 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) on the Trade  Date.  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 Transaction hereunder shall be  the sole Transaction under the Agreement.  If there exists any ISDA Master Agreement between Dealer and Company  or any confirmation or other agreement between Dealer and Company pursuant to which an ISDA Master Agreement  is deemed to exist between Dealer and Company, then notwithstanding anything to the contrary in such ISDA Master  Agreement, such confirmation or agreement or any other agreement to which Dealer and Company are parties, the  Transaction shall not be considered a Transaction under, or otherwise governed by such existing or deemed ISDA  Master Agreement.  





 






      2    #95272024v5   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 7, 2021  Effective Date: The second Exchange Business Day immediately prior to  the Premium Payment Date  Warrants: Equity call warrants, each giving the holder the right to  purchase a number of Shares equal to the Warrant  Entitlement at a price per Share equal to the Strike Price,  subject to the terms set forth under the caption “Settlement  Terms” below.  For the purposes of the Equity Definitions,  each reference to a Warrant herein shall be deemed to be a  reference to a Call Option.  Warrant Style: European  Seller: Company  Buyer: Dealer  Shares: The common stock of Company, without par value  (Exchange symbol “PATK”)  Number of Warrants: 749,153.  For the avoidance of doubt, the Number of  Warrants shall be reduced by any Warrants exercised or  deemed exercised hereunder.  In no event will the Number  of Warrants be less than zero.  Warrant Entitlement: One Share per Warrant   Strike Price: USD 123.2160.   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 USD 77.01, except for any  adjustment pursuant to the terms of this Confirmation and  the Equity Definitions in connection with stock splits or  similar changes to Company’s capitalization.  Premium:  USD 12,660,000  Premium Payment Date:  December 13, 2021  Exchange:  The Nasdaq Global Select Market  Related Exchange(s):  All Exchanges; provided that Section 1.26 of the Equity  Definitions shall be amended to add the words “United  States” before the word “exchange” in the tenth line of such  section.  Procedures for Exercise.  





 






      3    #95272024v5   Expiration Time:  The Valuation Time  Expiration Dates:  Each Scheduled Trading Day during the period from, and  including, the First Expiration Date to, but excluding, the  80th Scheduled Trading Day following the First Expiration  Date shall be an “Expiration Date” for a number of  Warrants equal to the Daily Number of Warrants on such  date; provided that, notwithstanding anything to the  contrary in the Equity Definitions, if any such date is a  Disrupted Day, the Calculation Agent shall make  adjustments in good faith and in a commercially reasonable  manner, if applicable, to the Daily Number of Warrants or  shall reduce such Daily Number of Warrants to zero for  which such day shall be an Expiration Date and shall  designate a Scheduled Trading Day or a number of  Scheduled Trading Days as the Expiration Date(s) for the  remaining Daily Number of Warrants or a portion thereof  for the originally scheduled Expiration Date; and provided  further that if such Expiration Date has not occurred  pursuant to this clause as of the eighth Scheduled Trading  Day following the last scheduled Expiration Date under the  Transaction, the Calculation Agent shall have the right to  declare such Scheduled Trading Day to be the final  Expiration Date and the Calculation Agent shall determine  its good faith estimate of the fair market value for the  Shares as of the Valuation Time on that eighth Scheduled  Trading Day or on any subsequent Scheduled Trading Day,  as the Calculation Agent shall determine acting in good  faith and using commercially reasonable means; provided  further that in no event shall any Expiration Date under the  Transaction be postponed as a result of any Disrupted Day  to a date later than the Final Expiration Date.  First Expiration Date: March 1, 2029 (or if such day is not a Scheduled Trading  Day, the next following Scheduled Trading Day), subject  to Market Disruption Event below.  Final Expiration Date: July 25, 2029  Daily Number of Warrants: For any Expiration Date, the Number of Warrants that have  not expired or been exercised as of such day, divided by the  remaining number of Expiration Dates (including such  day), rounded down to the nearest whole number, subject  to adjustment pursuant to the provisos to “Expiration  Dates”.  Automatic Exercise:  Applicable; and means that for each Expiration Date, a  number of Warrants equal to the Daily Number of  Warrants for such Expiration Date will be deemed to be  automatically exercised at the Expiration Time on such  Expiration Date.  Market Disruption Event: Section 6.3(a) of the Equity Definitions is hereby amended  by replacing clause (ii) in its entirety with “(ii) an  Exchange Disruption, or” and inserting immediately  





 






      4    #95272024v5   following clause (iii) the phrase “; in each case that the  Calculation Agent reasonably determines is material.”   Section 6.3(d) of the Equity Definitions is hereby amended  by deleting the remainder of the provision following the  words “Scheduled Closing Time” in the fourth line thereof.  Valuation Terms.  Valuation Time: Scheduled Closing Time; provided that if the principal  trading session is extended, the Calculation Agent shall  determine the Valuation Time in good faith and in a  commercially reasonable manner.  Valuation Date: Each Exercise Date.   Settlement Terms.  Settlement Method: Net Share Settlement.  Net Share Settlement: On the relevant Settlement Date, Company shall deliver to  Dealer a number of Shares equal to the Share Delivery  Quantity for such Settlement Date to the account specified  herein free of payment through the Clearance System, and  Dealer shall be treated as the holder of record of such  Shares at the time of delivery of such Shares or, if earlier,  at 5:00 p.m. (New York City time) on such Settlement  Date, and Company shall pay to Dealer cash in lieu of any  fractional Share based on the Settlement Price on the  relevant Valuation Date.  Share Delivery Quantity: For any Settlement Date, a number of Shares, as calculated  by the Calculation Agent, equal to the Net Share Settlement  Amount for such Settlement Date divided by the Settlement  Price on the Valuation Date for such Settlement Date.  Net Share Settlement Amount: For any Settlement Date, an amount equal to the product of  (i) the number of Warrants exercised or deemed exercised  on the relevant Exercise Date, (ii) the Strike Price  Differential for the relevant Valuation Date and (iii) the  Warrant Entitlement.   Settlement Price: For any Valuation Date, the per Share volume-weighted  average price as displayed under the heading “Bloomberg  VWAP” on Bloomberg page PATK <equity> AQR (or any  successor thereto) in respect of the period from the  scheduled opening time of the Exchange to the Scheduled  Closing Time on such Valuation Date (or if such volume- weighted average price is unavailable, the market value of  one Share on such Valuation Date, as determined by the  Calculation Agent in good faith and in a commercially  reasonable manner based on generally available market  data using, if practicable, a volume weighted average  methodology).  Notwithstanding the foregoing, if (i) any  Expiration Date is a Disrupted Day and (ii) the Calculation  Agent determines that such Expiration Date shall be an  Expiration Date for fewer than the Daily Number of  





 






      5    #95272024v5   Warrants, as described above, then the Settlement Price for  the relevant Valuation Date shall be the volume-weighted  average price per Share on such Valuation Date on the  Exchange, as determined by the Calculation Agent in good  faith and in a commercially reasonable manner based on  generally available market data using a commercially  reasonable volume-weighted methodology, for the portion  of such Valuation Date for which the Calculation Agent  determines there is no Market Disruption Event.  Settlement Dates: As determined pursuant to Section 9.4 of the Equity  Definitions, subject to Section 9(k)(i) hereof.  Other Applicable Provisions:  The provisions of Sections 9.1(c), 9.8, 9.9, 9.11 and 9.12  of the Equity Definitions will be applicable, except that all  references in such provisions to “Physically-settled” shall  be read as references to “Net Share Settled.” “Net Share  Settled” in relation to any Warrant means that Net Share  Settlement is applicable to that Warrant.  Representation and Agreement: Notwithstanding Section 9.11 of the Equity Definitions,  the parties acknowledge that any Shares delivered to  Dealer may be, upon delivery, subject to restrictions and  limitations arising from Company’s status as issuer of the  Shares under applicable securities laws.  3. Additional Terms applicable to the Transaction.  Adjustments applicable to the Transaction:  Method of Adjustment:  Calculation Agent Adjustment; provided that the parties  hereto agree that any (i) repurchases by or on behalf of the  Company of Shares through a dealer pursuant to forward  contracts, accelerated share repurchase contracts or similar  derivatives transactions that are entered into at prevailing  market prices, volume-weighted average prices or  discounts thereto and on customary terms for transactions  of such type to repurchase Shares or (ii) open market Share  repurchases by or on behalf of the Company at prevailing  market prices shall not be considered Potential Adjustment  Events.  For the avoidance of doubt, in making any  adjustments under the Equity Definitions, the Calculation  Agent may make adjustments, if any, to any one or more  of the Strike Price, the Number of Warrants, the Daily  Number of Warrants and the Warrant Entitlement in a  commercially reasonable manner.  Notwithstanding the  foregoing, any cash dividends or distributions on the  Shares, whether or not extraordinary, shall be governed by  Section 9(f) of this Confirmation in lieu of Article 10 or  Section 11.2(c) of the Equity Definitions.  Extraordinary Events applicable to the Transaction:  New Shares: Section 12.1(i) of the Equity Definitions is hereby  amended (a) by deleting the text in clause (i) thereof in its  entirety (including the word “and” following clause (i)) and  replacing it with the phrase “publicly quoted, traded or  





 






      6    #95272024v5   listed (or whose related depositary receipts are 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) by inserting immediately prior to the period the  phrase “and (iii) of an entity or person that is a corporation  organized under the laws of the United States, any State  thereof or the District of Columbia that also becomes  Company under the Transaction following such Merger  Event or Tender Offer”.  Consequence of Merger 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 9(h)(ii)(B) of this Confirmation, the provisions of  Section 9(h)(ii)(B) will apply.  Share-for-Share: Modified Calculation Agent Adjustment  Share-for-Other: Cancellation and Payment (Calculation Agent  Determination)  Share-for-Combined: Cancellation and Payment (Calculation Agent  Determination); provided that Dealer may elect, in its  commercially reasonable judgment, Component  Adjustment for all or any portion of the Transaction.  Consequence of Tender Offers:  Tender Offer: Applicable; provided that if an event occurs that constitutes  both a Tender Offer under Section 12.1(d) of the Equity  Definitions and Additional Termination Event under  Section 9(h)(ii)(A) of this Confirmation, the provisions of  Section 9(h)(ii)(A) will apply; provided further that the  definition of “Tender Offer” in Section 12.1(d) of the  Equity Definitions is hereby amended by replacing the  phrase “greater than 10% and less than 100% of the  outstanding voting shares of the Issuer” with “(x) greater  than 15% and less than 100% of the outstanding Shares in  respect of any Tender Offer made by any entity or person  other than the Issuer or any subsidiary thereof or (y) greater  than 20% and less than 100% of the outstanding Shares in  respect of any Tender Offer made by the Issuer or any  subsidiary thereof”.  Share-for-Share: Modified Calculation Agent Adjustment  Share-for-Other: Modified Calculation Agent Adjustment  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  





 






      7    #95272024v5   “Announcement Event” and references to “Tender Offer  Date” shall be replaced by references to “date of such  Announcement Event”, (y) the word “shall” in the second  line shall be replaced with “may”, the fifth and sixth lines  shall be deleted in their entirety and replaced with the  words “material economic effect on the Warrants of such  Announcement Event solely to account for changes in  volatility, expected dividends, stock loan rate or liquidity  relevant to the Shares or the Warrants” and the words  “whether within a commercially reasonable (as determined  by the Calculation Agent) period of time prior to or after  the Announcement Event,” shall be inserted prior to the  word “which” in the seventh line, and (z) for the avoidance  of doubt, the Calculation Agent shall, in good faith and in  a commercially reasonable manner, determine whether the  relevant Announcement Event has had a material economic  effect on the Transaction (and, if so, adjust the terms of the  Transaction accordingly) on one or more occasions on or  after the date of the Announcement Event up to, and  including, the Expiration Date, any Early Termination Date  and/or any other date of cancellation, it being understood  that any adjustment in respect of an Announcement Event  shall take into account any earlier adjustment relating to the  same Announcement Event.  An Announcement Event  shall be an “Extraordinary Event” for purposes of the  Equity Definitions, to which Article 12 of the Equity  Definitions is applicable.  Announcement Event: (i) The public announcement by Issuer or any Valid Third  Party Entity of (x) any transaction or event that is  reasonably likely to be completed (as determined by the  Calculation Agent taking into account the effect of such  announcement on the market for the Shares and/or options  on the Shares) and, if completed, would constitute a  Merger Event or Tender Offer, (y) any potential acquisition  or disposition by Issuer and/or its subsidiaries where the  aggregate consideration exceeds 30% of the market  capitalization of Issuer as of the date of such announcement  (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  includes, a Merger Event or Tender Offer or an Acquisition  Transaction or (iii) any subsequent public announcement  by any entity of a change to a transaction or intention that  is the subject of an announcement of the type described in  clause (i) or (ii) of this sentence (including, without  limitation, a new announcement, whether or not by the  same party, relating to such a transaction or intention or the  announcement of a withdrawal from, or the abandonment  or discontinuation of, such a transaction or intention), as  determined by the Calculation Agent in good faith and in a  commercially reasonable manner.  For the avoidance of  doubt, the occurrence of an Announcement Event with  respect to any transaction or intention shall not preclude the  





 






      8    #95272024v5   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 Entity: In respect of any transaction, any third party that the  Calculation Agent determines has a bona fide intent to  enter into or consummate such transaction (it being  understood and agreed that in determining whether such  third party has such a bona fide intent, the Calculation  Agent may take into consideration the effect of the relevant  announcement by such third party on the Shares and/or  options relating to the Shares and, if such effect is material,  may deem such third party to have a bona fide intent to  enter into or consummate such transaction).  Nationalization, Insolvency or Delisting: Cancellation and Payment (Calculation Agent  Determination); provided that, in addition to the provisions  of Section 12.6(a)(iii) of the Equity Definitions, it will also  constitute a Delisting if the Exchange is located in the  United States and the Shares are not immediately re-listed,  re-traded or re-quoted on any of the New York Stock  Exchange, The Nasdaq Global Select Market or The  Nasdaq Global Market (or their respective successors); if  the Shares are immediately re-listed, re-traded or re-quoted  on any of the New York Stock Exchange, The Nasdaq  Global Select Market or The Nasdaq Global Market (or  their respective successors), such exchange or quotation  system shall thereafter be deemed to be the Exchange.  Additional Disruption Events:  Change in Law: Applicable; provided that Section 12.9(a)(ii) of the Equity  Definitions is hereby amended by (i) replacing the phrase  “the interpretation” in the third line thereof with the phrase  “, or the public announcement of, the formal or informal  interpretation”, (ii) replacing the word “Shares” where it  appears in clause (X) thereof with the words “Hedge  Position” and (iii) replacing the parenthetical beginning  after the word “regulation” in the second line thereof the  words “(including, for the avoidance of doubt and without  limitation, (x) any tax law or (y) adoption, effectiveness or  promulgation of new regulations authorized or mandated  by existing statute)” at the end of clause (A) thereof.  Failure to Deliver: Not Applicable  Insolvency Filing: Applicable  Hedging Disruption: Applicable; provided that:  (i) Section 12.9(a)(v) of the Equity Definitions is  hereby amended by (a) inserting the following  words at the end of clause (A) thereof:  “in the  manner contemplated by the Hedging Party on the  





 






      9    #95272024v5   Trade Date” and (b) inserting the following two  phrases at the end of such Section:   “, provided that any such inability that occurs solely  due to the deterioration of the creditworthiness of  the Hedging Party shall not be deemed a Hedging  Disruption. 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”.  Increased Cost of Hedging: Not Applicable  Loss of Stock Borrow: Applicable, it being understood that the rate to borrow  Shares shall be determined by the Hedging Party assuming  the Hedging Party maintains a commercially reasonable  share borrowing arrangement. For the avoidance of doubt,  if an event occurs that constitutes both an Increased Cost  of Stock Borrow and a Loss of Stock Borrow, in respect of  such event, the provisions set forth in Section 12.9(b)(iv)  of the Equity Definitions (as modified hereby) shall apply,  and the provisions set forth in Section 12.9(b)(v) of the  Equity Definitions shall not apply.  Maximum Stock Loan Rate: 200 basis points  Increased Cost of Stock Borrow: Applicable, it being understood that the rate to borrow  Shares shall be determined by the Hedging Party assuming  the Hedging Party maintains a commercially reasonable  share borrowing arrangement.  Initial Stock Loan Rate: 0 basis points until December 1, 2028 and 25 basis points  thereafter.  Hedging Party: For all applicable Additional Disruption Events, Dealer.  Determining Party: For all applicable Extraordinary Events, Dealer.  Following  any determination by the Determining Party hereunder and  a written request by Company, the Determining Party shall  provide to Company by e-mail to the e-mail address  provided by Company a written explanation and report (in  a commonly used file format for the storage and  manipulation of financial data) describing in reasonable  detail any determination made by it (including, as  applicable, any quotations, market data, information from  internal sources used in making such determinations,  descriptions of the methodology and any assumptions and  basis used in making such determination), it being  





 






      10    #95272024v5   understood that the Determining Party shall not be  obligated to disclose any proprietary or confidential  models or proprietary or confidential information used by  it for such determination. All calculations, adjustments and  determinations by Dealer acting in its capacity as the  Determining Party shall be made in good faith and in a  commercially reasonable manner.  Hedging Adjustment: For the avoidance of doubt, whenever the Calculation  Agent, Hedging Party or Determining Party, as the case  may be, is permitted to make a determination, calculation  or adjustment pursuant to the terms of this Confirmation or  the Equity Definitions to take into account the effect of an  event, the Calculation Agent, Hedging Party or  Determining Party, as the case may be shall make such  adjustment, if any, in a commercially reasonable manner  and by reference to the effect of such event on Dealer  assuming that Dealer maintains a commercially reasonable  hedge position.  Non-Reliance: Applicable   Agreements and Acknowledgments   Regarding Hedging Activities: Applicable  Additional Acknowledgments: Applicable  4. Calculation Agent.  Dealer, whose judgments, determinations and calculations  shall be made in good faith and in a commercially  reasonable manner; provided that, following the  occurrence and during the continuance of an Event of  Default of the type described in Section 5(a)(vii) of the  Agreement with respect to which Dealer is the sole  Defaulting Party, if the Calculation Agent fails to timely  make any calculation, adjustment or determination  required to be made by the Calculation Agent hereunder or  to perform any obligation of the Calculation Agent  hereunder and such failure continues for five (5) Exchange  Business Days following notice to the Calculation Agent  by Company of such failure, Company shall have the right  to designate a nationally recognized third-party dealer in  over-the-counter corporate equity derivatives to act, during  the period commencing on the date such Event of Default  occurred and ending on the Early Termination Date with  respect to such Event of Default (or, if earlier, the date on  which such Event of Default is no longer continuing), as  the Calculation Agent.  Following any determination or  calculation by the Calculation Agent hereunder, upon  written request by Company, the Calculation Agent shall  promptly (but in any event within three Scheduled Trading  Days) provide to Company by e-mail to the e-mail address  provided by Company in such request a report (in a  commonly used file format for the storage and  manipulation of financial data) displaying in reasonable  detail the basis for such determination or calculation  (including any assumptions used in making such  





 






      11    #95272024v5   determination or calculation), it being understood that the  Calculation Agent shall not be obligated to disclose any  proprietary or confidential models used by it for such  determination or calculation or any information that may  be proprietary or confidential.  5. Account Details.  (a) Account for payments to Company:   To be provided by Company.  Account for delivery of Shares from Company:  To be provided by Company.  (b) Account for payments to Dealer:  [***]  SWIFT: [***]  Bank Routing: [***]  Account Name: [***]  Account No. : [***]    Account for delivery of Shares to Dealer:  To be provided by Dealer.  6. Offices.  (a) The Office of Company for the Transaction is:  Inapplicable, Company is not a Multibranch Party.  (b) The Office of Dealer for the Transaction is: New York  Bank of America, N.A.  One Bryant Park  New York, NY 10036  7. Notices.    (a) Address for notices or communications to Company:    Patrick Industries, Inc.    107 W. Franklin Street,       P.O. Box 638     Elkhart, Indiana 46515  Attention:  Chief Financial Officer   Telephone No.: (574) 294-7511  Facsimile No.: (574) 522-5213  (b) Address for notices or communications to Dealer:   Bank of America, N.A.  One Bryant Park  New York, NY 10036   Attention: Strategic Equity Solutions Group, 8th Floor  Telephone: 646-855-8900  Email:  dg.issuer_derivatives_notices@bofa.com  





 






      12    #95272024v5   8. Representations and Warranties of Company.  Company hereby represents and warrants to Dealer on the date hereof, on and as of the Premium Payment  Date and, in the case of the representations in Section 8(d), at all times until termination of the Transaction,  that:  (a) Company has all necessary corporate power and authority to execute, deliver and perform its  obligations in respect of the Transaction; such execution, delivery and performance have been duly  authorized by all necessary corporate action on Company’s part; and this Confirmation has been  duly and validly executed and delivered by Company and constitutes its valid and binding  obligation, enforceable against Company in accordance with its terms, subject to applicable  bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws  affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general  principles of equity, including principles of commercial reasonableness, good faith and fair dealing  (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that  rights to indemnification and contribution hereunder may be limited by federal or state securities  laws or public policy relating thereto.  (b) Neither the execution and delivery of this Confirmation nor the incurrence or performance of  obligations of Company hereunder will conflict with or result in a breach of the certificate of  incorporation or by-laws (or any equivalent documents) of Company, or any applicable law or  regulation, or any order, writ, injunction or decree of any court or governmental authority or agency,  or any agreement or instrument filed as an exhibit to Company’s Annual Report on Form 10-K for  the year ended December 31, 2020, as updated by any subsequent filings to which Company or any  of its subsidiaries is a party or by which Company or any of its subsidiaries is bound or to which  Company or any of its subsidiaries is subject, or constitute a default under, or result in the creation  of any lien under, any such agreement or instrument.  (c) To the Company’s knowledge, no consent, approval, authorization, or order of, or filing with, any  governmental agency or body or any court is required in connection with the execution, delivery or  performance by Company of this Confirmation, except such as have been obtained or made and  such as may be required under the Securities Act of 1933, as amended (the “Securities Act”) or  state securities laws; provided that Company 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 a financial institution or broker- dealer.  (d) A number of Shares equal to the Maximum Number of Shares (as defined below) (the “Warrant  Shares”) have been reserved for issuance by all required corporate action of Company.  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 Warrants  following the exercise of the Warrants in accordance with the terms and conditions of the Warrants,  will be validly issued, fully-paid and non-assessable, and the issuance of the Warrant Shares will  not be subject to any preemptive or similar rights.  (e) Company is not and, after consummation of the transactions contemplated hereby, will not be  required to register as an “investment company” as such term is defined in the Investment Company  Act of 1940, as amended.  (f) Company is an “eligible contract participant” (as such term is defined in Section 1a(18) of the  Commodity Exchange Act, as amended, other than a person that is an eligible contract participant  under Section 1a(18)(C) of the Commodity Exchange Act).  (g) Company is not, on the date hereof, in possession of any material non-public information with  respect to Company or the Shares.  





 






      13    #95272024v5   (h) To Company’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule,  regulation or regulatory order applicable to the Shares would give rise to any reporting, consent,  registration or other requirement (including without limitation a requirement to obtain prior approval  from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined)  Shares.  (i) Company (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 $50 million.  (j) The assets of Company 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.  9. Other Provisions.  (a) Opinions.  Company shall deliver to Dealer one or more opinions of counsel, dated as of the  Premium Payment Date, with respect to the matters set forth in Sections 8(a) through (d) of this  Confirmation (except as to whether this Confirmation constitutes Company’s valid and binding  obligation or is enforceable in accordance with its terms); provided that any such opinion of counsel  may contain customary exceptions and qualifications.  Delivery of such opinion to Dealer shall be  a condition precedent for the purpose of Section 2(a)(iii) of the Agreement with respect to each  obligation of Dealer under Section 2(a)(i) of the Agreement.  (b) Repurchase Notices.  Company shall, on or prior to the opening of the regular trading session for  the Shares on the Exchange on the date that is one Scheduled Trading Day following any date on  which Company obtains actual knowledge that it has effected any repurchase of Shares, promptly  give Dealer a written notice of such repurchase (a “Repurchase Notice”) on such day if following  such repurchase, the number of outstanding Shares as determined on such day is (i) less than 22.3  million (in the case of the first such notice) or (ii) thereafter more than 1.2 million less than the  number of Shares included in the immediately preceding Repurchase Notice.  Company agrees to  indemnify and hold harmless Dealer and its affiliates and their respective officers, directors,  employees, affiliates, advisors, agents and controlling persons (each, an “Indemnified Person”)  from and against any and all losses (including losses relating to Dealer’s commercially reasonable  hedging activities as a consequence of becoming, or of the risk of becoming, a Section 16 “insider”,  including without limitation, any forbearance from commercially reasonable hedging activities or  cessation of hedging activities and any losses in connection therewith with respect to the  Transaction), claims, damages, judgments, liabilities and reasonable, documented out-of-pocket  expenses (including reasonable attorney’s fees), joint or several, which an Indemnified Person  actually may become subject to, in each case, as a result of Company’s failure to provide Dealer  with a Repurchase Notice on the day and in the manner specified in this paragraph, and to reimburse,  within 30 days, upon written request, each of such Indemnified Persons for any reasonable legal or  other expenses incurred in connection with investigating, preparing for, providing testimony or other  evidence in connection with or defending any of the foregoing.  If any suit, action, proceeding  (including any governmental or regulatory investigation), claim or demand shall be brought or  asserted against the Indemnified Person as a result of Company’s failure to provide Dealer with a  Repurchase Notice in accordance with this paragraph, such Indemnified Person shall promptly  notify Company in writing, and Company, upon request of the Indemnified Person, shall retain  counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and  any others Company may designate in such proceeding and shall pay the reasonable, documented  fees and expenses of such counsel related to such proceeding.  Company shall not be liable for any  such settlement of such proceeding effected without its written consent, but if settled with such  consent or if there be a final judgment for the plaintiff, Company agrees to indemnify any  Indemnified Person from and against any loss or liability by reason of such settlement or judgment.   





 






      14    #95272024v5   Company shall not, without the prior written consent of the Indemnified Person, effect any  settlement of any such proceeding that is pending or threatened in respect of which any Indemnified  Person is or could have been a party and indemnity could have been sought hereunder by such  Indemnified Person, unless such settlement includes an unconditional release of such Indemnified  Person from all liability on claims that are the subject matter of such proceeding on terms reasonably  satisfactory to such Indemnified Person.  Company shall be relieved from liability to the extent that  any Indemnified Person fails promptly to notify Company of any action commenced against it in  respect of which indemnity may be sought hereunder to the extent Company is materially prejudiced  as a result thereof. If the indemnification provided for in this paragraph is unavailable to an  Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to  therein, then Company under such paragraph, in lieu of indemnifying such Indemnified Person  thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of  such losses, claims, damages or liabilities.  The remedies provided for in this paragraph are not  exclusive and shall not limit any rights or remedies which may otherwise be available to any  Indemnified Person at law or in equity.  The indemnity and contribution agreements contained in  this paragraph shall remain operative and in full force and effect regardless of the termination of the  Transaction.  (c) Regulation M.  Company is not on the Trade Date engaged in a distribution, as such term is used in  Regulation M under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of  any securities of Company, other than a distribution meeting the requirements of the exception set  forth in Rules 101(b)(10) and 102(b)(7) of Regulation M.  Company shall not, until the second  Scheduled Trading Day immediately following the Effective Date, engage in any such distribution.  (d) No Manipulation.  Company is not entering into the Transaction to create actual or apparent trading  activity in the Shares (or any security convertible into or exchangeable for the Shares) or to raise or  depress or manipulate the price of the Shares (or any security convertible into or exchangeable for  the Shares) in violation of the Exchange Act.  (e) Transfer or Assignment.  Company may not transfer any of its rights or obligations under the  Transaction without the prior written consent of Dealer.  Dealer may transfer or assign all or any  part of its rights or obligations under the Transaction (x) without Company’s consent, to any wholly  owned direct or indirect subsidiary of Bank of America, N.A. or any nationally recognized dealer  in over-the-counter corporate equity derivatives or (y) with Company’s consent (such consent not  to be unreasonably withheld or delayed) to any other third party; provided that, under the applicable  law effective on the date of such assignment, (i) Company will not, as a result of such transfer or  assignment, be required to pay the transferee or assignee on any payment date an amount under  Section 2(d)(i)(4) of the Agreement greater than the amount that Company would have been  required to pay to Dealer in the absence of such transfer or assignment, and (ii) no Event of Default,  Potential Event of Default or Termination Event will occur as a result of such transfer and  assignment.  If at any time at which (A) the Section 16 Percentage exceeds 8.5%, (B) the Warrant  Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if  any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership  Position”), Dealer, acting in good faith, is unable after using its commercially reasonable efforts to  effect a transfer or assignment of Warrants to a third party on pricing terms reasonably acceptable  to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership  Position exists, then Dealer may designate any Exchange Business Day as an Early Termination  Date with respect to a portion of the Transaction (the “Terminated Portion”), such that following  such partial termination no Excess Ownership Position exists.  In the event that Dealer so designates  an Early Termination Date with respect to a Terminated Portion, a payment shall be made pursuant  to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of  a Transaction having terms identical to the Transaction and a Number of Warrants equal to the  number of Warrants underlying the Terminated Portion, (2) Company were the sole Affected Party  with respect to such partial termination and (3) the Terminated Portion were the sole Affected  Transaction (and, for the avoidance of doubt, the provisions of Section 9(j) shall apply to any amount  that is payable by Company to Dealer pursuant to this sentence as if Company was not the Affected  





 






      15    #95272024v5   Party).  The “Section 16 Percentage” as of any day is the fraction, expressed as a percentage, (A)  the numerator of which is the number of Shares that Dealer and any of its affiliates or any other  person subject to aggregation with Dealer for purposes of the “beneficial ownership” test under  Section 13 of the Exchange Act, or any “group” (within the meaning of Section 13 of the Exchange  Act) of which Dealer is or may be deemed to be a part beneficially owns (within the meaning of  Section 13 of the Exchange Act), without duplication, on such day (or, to the extent that for any  reason the equivalent calculation under Section 16 of the Exchange Act and the rules and regulations  thereunder results in a higher number, such higher number) and (B) the denominator of which is the  number of Shares outstanding on such day.  The “Warrant Equity Percentage” as of any day is  the fraction, expressed as a percentage, (A) the numerator of which is the sum of (1) the product of  the Number of Warrants and the Warrant Entitlement and (2) the aggregate number of Shares  underlying any other warrants purchased by Dealer from Company, and (B) the denominator of  which is the number of Shares outstanding.  The “Share Amount” as of any day is the number of  Shares that Dealer and any person whose ownership position would be aggregated with that of  Dealer (Dealer or any such person, a “Dealer Person”) under any law, rule, regulation, regulatory  order or organizational documents or contracts of Company that are, in each case, applicable to  ownership of Shares (“Applicable Restrictions”), owns, beneficially owns, constructively owns,  controls, holds the power to vote or otherwise meets a relevant definition of ownership under any  Applicable Restriction, as determined by Dealer in its reasonable discretion.  The “Applicable  Share Limit” means a number of Shares equal to (A) the minimum number of Shares that, in  Dealer’s reasonable judgment based on advice of counsel, could reasonably give rise to reporting or  registration obligations (except for any filing requirements on Form 13F, Schedule 13D or Schedule  13G under the Exchange Act, in each case, as in effect on the Trade Date) or other requirements  (including obtaining prior approval from any person or entity) of a Dealer Person, or could result in  an adverse effect on a Dealer Person, under any Applicable Restriction, as determined by Dealer in  its commercially reasonable discretion, minus (B) 1% of the number of Shares outstanding.   Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing  Dealer to purchase, sell, receive or deliver any Shares or other securities, or make or receive any  payment in cash, to or from Company, Dealer may designate any of its affiliates to purchase, sell,  receive or deliver such Shares or other securities, or make or receive such payment in cash, and  otherwise to perform Dealer’s obligations in respect of the Transaction and any such designee may  assume such obligations.  Dealer shall be discharged of its obligations to Company to the extent of  any such performance. Dealer shall provide Company with written notice of any transfer or  assignment on, or as promptly as practicable after, the date of such transfer or assignment.  (f) Dividends.  If at any time during the period from and including the Effective Date, to and including  the last Expiration Date, (i) an ex-dividend date for a cash dividend occurs with respect to the Shares  (an “Ex-Dividend Date”), and that dividend differs from the Regular Dividend on a per Share basis  or (ii) if no Ex-Dividend Date for a cash dividend occurs with respect to the Shares in any quarterly  dividend period of Company , then the Calculation Agent will adjust in a commercially reasonable  manner any of the Strike Price, Number of Warrants, Daily Number of Warrants, Warrant  Entitlement, Expiration Dates and/or any other variable relevant to the exercise, settlement or  payment of the Transaction, in each case, to preserve the fair value of the Warrants after taking into  account such dividend or lack thereof.  “Regular Dividend” shall mean for any calendar quarter,  USD 0.33 for the first regular cash dividend or distribution on the Shares for which the Ex-Dividend  Date falls within such calendar quarter, and zero for any other dividend or distribution on the Shares  for which the Ex-Dividend Date falls within the same calendar quarter.   (g) [Reserved].  (h) Additional Provisions.  (i) Amendments to the Equity Definitions and the Agreement:  





 






      16    #95272024v5   (A) Section 11.2(a) of the Equity Definitions is hereby amended by deleting the words  “a diluting or concentrative” and replacing them with the words “a material”; and  adding the phrase “or Warrants” at the end of the sentence.  (B) Section 11.2(c) of the Equity Definitions is hereby amended by (w) replacing the  words “a diluting or concentrative” with “a material” 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).”  (C) Section 11.2(e)(vii) of the Equity Definitions is hereby amended by deleting the  words “a diluting or concentrative” and replacing them with the word “a  material”; and adding the phrase “or Warrants” at the end of the sentence.  (D) Section 12.6(a)(ii) of the Equity Definitions is hereby amended by (1) inserting  “(1)” immediately following the word “means” in the first line thereof and (2)  inserting immediately prior to the semi-colon at the end of subsection (B) thereof  the following words: “or (2) the occurrence of any of the events specified in  Section 5(a)(vii)(1) through (9) of the ISDA Master Agreement with respect to  that Issuer”.  (E) Section 12.9(b)(iv) of the Equity Definitions is hereby amended by:  (x) 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  (y) replacing the phrase “neither the Non-Hedging Party nor the Lending  Party lends Shares” with the phrase “such Lending Party does not lend  Shares” in the penultimate sentence.  (F) Section 12.9(b)(v) of the Equity Definitions is hereby amended by:  (x) adding the word “or” immediately before subsection “(B)” and deleting  the comma at the end of subsection (A); and  (y) (1) deleting subsection (C) in its entirety, (2) deleting the word “or”  immediately preceding subsection (C), (3) deleting the penultimate  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.” and (4) deleting clause (X) in the final sentence.  (G) Section 12(a) of the Agreement is hereby amended by (1) deleting the phrase “or  email” in the third line thereof and (2) deleting the phrase “or that communication  is delivered (or attempted) or received, as applicable, after the close of business  on a Local Business Day” in the final clause thereof.  





 






      17    #95272024v5   (ii) Notwithstanding anything to the contrary in this Confirmation, upon the occurrence of one  of the following events, with respect to the Transaction, (1) Dealer shall have the right to  designate such event an Additional Termination Event and designate an Early Termination  Date pursuant to Section 6(b) of the Agreement, (2) Company shall be deemed the sole  Affected Party with respect to such Additional Termination Event and (3) the Transaction,  or, at the election of Dealer in its sole discretion, any portion of the Transaction, shall be  deemed the sole Affected Transaction; provided that if Dealer so designates an Early  Termination Date with respect to a portion of the Transaction, (a) a payment shall be made  pursuant to Section 6 of the Agreement as if an Early Termination Date had been designated  in respect of a Transaction having terms identical to the Transaction and a Number of  Warrants equal to the number of Warrants included in the terminated portion of the  Transaction, and (b) for the avoidance of doubt, the Transaction shall remain in full force  and effect except that the Number of Warrants shall be reduced by the number of Warrants  included in such terminated portion:  (A) Except in the case of a transaction described in clause (B) below, a “person” or  “group” within the meaning of Section 13(d) of the Exchange Act, other than  Company, its wholly owned subsidiaries and its and their employee benefit plans,  files any schedule, form or report under the Exchange Act that discloses that such  person or group has become the direct or indirect “beneficial owner,” as defined  in Rule 13d-3 under the Exchange Act, of the Shares representing more than 50%  of the voting power of the Shares, unless such beneficial ownership (i) arises  solely as a result of a revocable proxy delivered in response to a public proxy or  consent solicitation made pursuant to the applicable rules and regulations under  the Exchange Act and (ii) is not also then reportable on Schedule 13D or Schedule  13G (or any successor schedule) under the Exchange Act as a result thereof;  provided that no person or group shall be deemed to be the beneficial owner of  any securities tendered pursuant to a tender or exchange offer made by or on  behalf of such person or group until such tendered securities are accepted for  purchase or exchange under such offer.   (B) Consummation of (I) any recapitalization, reclassification or change of the Shares  (other than changes resulting from a subdivision or combination or a change  solely in par value) 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 Company 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 Company and its subsidiaries, taken as a whole,  to any person other than one or more of Company’s wholly owned direct or  indirect subsidiaries.  Notwithstanding the foregoing, any transaction or  transactions set forth in clause (A) above or this clause (B) 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 and cash payments made in respect of dissenters’ appraisal rights, 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 and cash payments made in respect  of dissenters’ appraisal rights.  (C) Default by Company or any of its Significant Subsidiaries with respect to any  mortgage, agreement or other instrument under which there is outstanding, or by  





 






      18    #95272024v5   which there is secured or evidenced, any indebtedness for money borrowed in  excess of $50 million (or its foreign currency equivalent) in the aggregate of  Company and/or any such subsidiary, whether such indebtedness exists as of the  Premium Payment Date or is thereafter created, where such default (i) results in  such indebtedness becoming or being declared due and payable prior to its stated  maturity date or (ii) constitutes a failure to pay the principal or interest of any such  debt when due and payable (after the expiration of all applicable grace periods) at  its stated maturity, upon required repurchase, upon declaration of acceleration or  otherwise, and in the cases of clauses (i) and (ii), such acceleration shall not have  been rescinded or annulled or such failure to pay or default shall not have been  cured or waived, or such indebtedness is not paid or discharged, as the case may  be, within 30 days after written notice to Company in accordance with the relevant  indenture.  (D) A final judgment or judgments for the payment of $50 million (or its foreign  currency equivalent) or more (excluding any amounts covered by insurance) in  the aggregate rendered against Company or any of its Significant Subsidiaries,  which judgment is not discharged, bonded, paid, waived or stayed within 60 days  after (I) the date on which the right to appeal thereof has expired if no such appeal  has commenced, or (II) the date on which all rights to appeal have been  extinguished.  (E) Dealer reasonably determines, based on advice of counsel, that hedging its  exposure with respect to the Transaction in the public market without registration  under the Securities Act would raise material risks under applicable securities  laws or regulatory or self-regulatory requirements or related policies and  procedures (whether or not such requirements, policies or procedures are imposed  by law or have been voluntarily adopted by Dealer, but provided that such policies  and procedures have been adopted by Dealer in good faith and are generally  applicable in similar situations and applied in a non-discriminatory manner).  “Significant Subsidiary” means a subsidiary that is a “significant subsidiary” as defined  in Article 1, Rule 1-02 of Regulation S-X promulgated by the Securities and Exchange  Commission.  (i) No Collateral or Setoff.  Notwithstanding any provision of the Agreement or any other agreement  between the parties to the contrary, the obligations of Company hereunder are not secured by any  collateral.  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 Agreement and the Transaction against any delivery or payment obligations  owed to it by the other party under any other agreement between the parties hereto, by operation of  law or otherwise.  (j) Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events.    (i) If (a) an Early Termination Date (whether as a result of an Event of Default or a Termination  Event) occurs or is designated with respect to the Transaction or (b) the Transaction is  cancelled or terminated upon the occurrence of an Extraordinary Event (except as a result  of (i) a Nationalization, Insolvency or Merger Event in which the consideration to be paid  to holders of Shares consists solely of cash, (ii) a Merger Event or Tender Offer that is  within Company’s control, or (iii) an Event of Default in which Company is the Defaulting  Party or a Termination Event in which Company is the Affected Party other than an Event  of Default of the type described in Section 5(a)(iii), (v), (vi), (vii) or (viii) of the Agreement  or a Termination Event of the type described in Section 5(b) of the Agreement, in each case  that resulted from an event or events outside Company’s control), and if Company would  owe any amount to Dealer pursuant to Section 6(d)(ii) of the Agreement or any  





 






      19    #95272024v5   Cancellation Amount pursuant to Article 12 of the Equity Definitions (any such amount, a  “Payment Obligation”), then Company shall satisfy the Payment Obligation by the Share  Termination Alternative (as defined below), unless (a) Company 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, Tender Offer Date,  Announcement Date (in the case of a Nationalization, Insolvency or Delisting), Early  Termination Date or date of cancellation, as applicable, of its election that the Share  Termination Alternative shall not apply and (b) Company acknowledges to Dealer, as of  the date of such election, its responsibilities under applicable securities laws, and in  particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations  thereunder, in connection with such election, in which case the provisions of Section 12.7  or Section 12.9 of the Equity Definitions, or the provisions of Section 6(d)(ii) of the  Agreement, as the case may be, shall apply.    Share Termination Alternative:  If applicable, Company shall deliver to Dealer the  Share Termination Delivery Property on the date (the  “Share Termination Payment Date”) on which the  Payment Obligation would otherwise be due pursuant  to Section 12.7 or Section 12.9 of the Equity  Definitions or Section 6(d)(ii) of the Agreement, as  applicable, subject to Section 9(k)(i) below, in  satisfaction, subject to Section 9(k)(ii) below, of the  relevant Payment Obligation, in the manner  reasonably requested by Dealer free of payment.   Share Termination Delivery   Property:  A number of Share Termination Delivery Units, as  calculated by the Calculation Agent, equal to the  relevant Payment Obligation divided by the Share  Termination Unit Price.  The Calculation Agent shall  adjust the amount of Share Termination Delivery  Property by replacing any fractional portion of a  security therein with an amount of cash equal to the  value of such fractional security based on the values  used to calculate the Share Termination Unit Price  (without giving effect to any discount pursuant to  Section 9(k)(i)).  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.  In the case of a  Private Placement of Share Termination Delivery  Units that are Restricted Shares (as defined below), as  set forth in Section 9(k)(i) below, the Share  Termination Unit Price shall be determined by the  discounted price applicable to such Share Termination  Delivery Units.  In the case of a Registration  Settlement of Share Termination Delivery Units that  are Restricted Shares (as defined below) as set forth in  Section 9(k)(ii) below, notwithstanding the foregoing,  the Share Termination Unit Price shall be the  Settlement Price on the Merger Date, Tender Offer  Date, Announcement Date (in the case of a  





 






      20    #95272024v5   Nationalization, Insolvency or Delisting), Early  Termination Date or date of cancellation, as  applicable.  The Calculation Agent shall notify  Company of the Share Termination Unit Price at the  time of notification of such Payment Obligation to  Company or, if applicable, at the time the discounted  price applicable to the relevant Share Termination  Units is determined pursuant to Section 9(k)(i).    Share Termination Delivery Unit:  One Share or, if the Shares have changed into cash or  any other property or the right to receive cash or any  other property as the result of a Nationalization,  Insolvency or Merger Event (any such cash or other  property, the “Exchange Property”), a unit consisting  of the type and amount of Exchange Property received  by a holder of one Share (without consideration of any  requirement to pay cash or other consideration in lieu  of fractional amounts of any securities) in such  Nationalization, Insolvency or Merger Event.  If such  Nationalization, Insolvency or Merger Event involves  a choice of Exchange Property to be received by  holders, such holder shall be deemed to have elected  to receive the maximum possible amount of cash.  Failure to Deliver:  Inapplicable  Other applicable provisions:  If Share Termination Alternative is applicable, the  provisions of Sections 9.8, 9.9, 9.11 and 9.12 (as  modified above) of the Equity Definitions will be  applicable, except that all references in such  provisions to “Physically-settled” shall be read as  references to “Share Termination Settled” and all  references to “Shares” shall be read as references to  “Share Termination Delivery Units”.  “Share  Termination Settled” in relation to the Transaction  means that the Share Termination Alternative is  applicable to the Transaction.  (k) Registration/Private Placement Procedures.  If, in the good faith, reasonable opinion of Dealer,  based on advice from counsel, following any delivery of Shares or Share Termination Delivery  Property to Dealer hereunder, such Shares or Share Termination Delivery Property would be in the  hands of Dealer subject to any applicable restrictions with respect to any registration or qualification  requirement or prospectus delivery requirement for such Shares or Share Termination Delivery  Property pursuant to any applicable federal or state securities law (including, without limitation, any  such requirement arising under Section 5 of the Securities Act as a result of such Shares or Share  Termination Delivery Property being “restricted securities”, as such term is defined in Rule 144  under the Securities Act, or as a result of the sale of such Shares or Share Termination Delivery  Property being subject to paragraph (c) of Rule 145 under the Securities Act) (such Shares or Share  Termination Delivery Property, “Restricted Shares”), then delivery of such Restricted Shares shall  be effected pursuant to either clause (i) or (ii) below at the election of Company, unless Dealer  waives the need for registration/private placement procedures set forth in (i) and (ii) below.   Notwithstanding the foregoing, solely in respect of any Daily Number of Warrants exercised or  deemed exercised on any Expiration Date, if Dealer notifies Company of the need for registration  or private placement procedures set forth in this Section 9(k), then Company shall elect, prior to the  later of (x) the first Settlement Date for the first applicable Expiration Date and (y) the third  Scheduled Trading Day following the date of such notification, a Private Placement Settlement or  





 






      21    #95272024v5   Registration Settlement, consistent with transactions of a similar size, for all deliveries of Restricted  Shares for all such Expiration Dates which election shall be applicable to all remaining Settlement  Dates for such Warrants and the procedures in clause (i) or clause (ii) below shall apply for all such  delivered Restricted Shares on an aggregate basis commencing after the final Settlement Date for  such Warrants.  The Calculation Agent shall make commercially reasonable adjustments, consistent  with transactions of a similar size, to settlement terms and provisions under this Confirmation to  reflect a single Private Placement or Registration Settlement for such aggregate Restricted Shares  delivered hereunder.  (i) If Company elects to settle the Transaction pursuant to this clause (i) (a “Private  Placement Settlement”), then delivery of Restricted Shares by Company shall be effected  in customary private placement procedures for private placements of equity securities of a  substantially similar size with respect to such Restricted Shares reasonably acceptable to  Dealer; provided that Company may not elect a Private Placement Settlement if, on the  date of its election, it has taken, or caused to be taken, any action that would make  unavailable either the exemption pursuant to Section 4(a)(2) of the Securities Act for the  sale by Company to Dealer (or any affiliate designated by Dealer) of the Restricted Shares  or the exemption pursuant to Section 4(a)(1) or Section 4(a)(3) of the Securities Act for  resales of the Restricted Shares by Dealer (or any such affiliate of Dealer).  The Private  Placement Settlement of such Restricted Shares shall include customary representations,  covenants, blue sky and other governmental filings and/or registrations, indemnities to  Dealer, due diligence rights (for Dealer or any designated buyer of the Restricted Shares  by Dealer in each case, that agrees to enter into a confidentiality agreement with Company  in customary form for due diligence investigations similar in scope), opinions and  certificates, and such other documentation as is customary for private placement  agreements for private placements of equity securities of comparable size of companies of  comparable size, maturity and line of business (but provided that Company shall only be  required to use commercially reasonable efforts to deliver any such documentation the  delivery of which is not entirely within Company’s control), all reasonably acceptable to  Dealer.  In the case of a Private Placement Settlement, Dealer shall determine the  appropriate commercially reasonable discount to the Share Termination Unit Price (in the  case of settlement of Share Termination Delivery Units pursuant to Section 9(j) above) or  premium to any Settlement Price (in the case of settlement of Shares pursuant to Section 2  above) applicable to such Restricted Shares in a commercially reasonable manner and  appropriately adjust the number of such Restricted Shares to be delivered to Dealer  hereunder, which discount or premium, as the case may be, shall only take into account the  illiquidity resulting from the fact that the Restricted Shares will not be registered for resale  and any commercially reasonable fees and expenses of Dealer (and any affiliate thereof) in  connection with such resale.  Notwithstanding  anything to the contrary in the Agreement  or this Confirmation, the date of delivery of such Restricted Shares shall be the Exchange  Business Day following notice by Dealer to Company of such applicable discount or  premium, as the case may be, and the number of Restricted Shares to be delivered pursuant  to this clause (i).  For the avoidance of doubt, delivery of Restricted Shares shall be due as  set forth in the previous sentence and not be due on the Share Termination Payment Date  (in the case of settlement of Share Termination Delivery Units pursuant to Section 9(j)  above) or on the Settlement Date for such Restricted Shares (in the case of settlement in  Shares pursuant to Section 2 above).   (ii) If Company elects to settle the Transaction pursuant to this clause (ii) (a “Registration  Settlement”), then Company shall promptly (but in any event no later than the beginning  of the Resale Period) file and use its reasonable best efforts to make effective under the  Securities Act a registration statement or supplement or amend an outstanding registration  statement in form and substance reasonably satisfactory to Dealer, to cover the resale of  such Restricted Shares in accordance with customary resale registration procedures for  registered secondary offerings of a substantially similar size, including covenants,  conditions, representations, underwriting discounts (if applicable), commissions (if  





 






      22    #95272024v5   applicable), indemnities due diligence rights, opinions and certificates, and such other  documentation as is customary for equity resale underwriting agreements for registered  secondary offerings of equity securities of comparable size of companies of comparable  size, maturity and line of business, all reasonably acceptable to Dealer.  If Dealer, in its  sole reasonable discretion, is not satisfied with such procedures and documentation Private  Placement Settlement shall apply.  If Dealer is satisfied with such procedures and  documentation, it shall sell the Restricted Shares pursuant to such registration statement  during a period (the “Resale Period”) commencing on the Exchange Business Day  following delivery of such Restricted Shares (which, for the avoidance of doubt, shall be  (x) the Share Termination Payment Date in case of settlement in Share Termination  Delivery Units pursuant to Section 9(j) above or (y) the Settlement Date in respect of the  final Expiration Date for all Daily Number of Warrants) and ending on the earliest of (i)  the Exchange Business Day on which Dealer completes the sale of all Restricted Shares in  a commercially reasonable manner or, in the case of settlement of Share Termination  Delivery Units, a sufficient number of Restricted Shares so that the realized net proceeds  of such sales equals or exceeds the Payment Obligation (as defined above), (ii) the date  upon which all Restricted Shares have been sold or transferred pursuant to Rule 144 (or  similar provisions then in force) or Rule 145(d)(2) (or any similar provision then in force)  under the Securities Act and (iii) the date upon which all Restricted Shares may be sold or  transferred by a non-affiliate pursuant to Rule 144 (or any similar provision then in force)  or Rule 145(d)(2) (or any similar provision then in force) under the Securities Act.  If the  Payment Obligation exceeds the realized net proceeds from such resale, Company shall  transfer to Dealer by the open of the regular trading session on the Exchange on the  Exchange Business Day immediately following such resale the amount of such excess (the  “Additional Amount”) in cash or in a number of Shares (“Make-whole Shares”) in an  amount that, based on the Settlement Price on such day (as if such day was the “Valuation  Date” for purposes of computing such Settlement Price), has a dollar value equal to the  Additional Amount.  The Resale Period shall continue to enable the sale of the Make-whole  Shares.  If Company elects to pay the Additional Amount in Shares, the requirements and  provisions for Registration Settlement shall apply.  This provision shall be applied  successively until the Additional Amount is equal to zero.  In no event shall Company  deliver a number of Restricted Shares greater than the Maximum Number of Shares.  (iii) Without limiting the generality of the foregoing, Company agrees that (A) any Restricted  Shares delivered to Dealer may be transferred by and among Dealer and its affiliates and  Company shall effect such transfer without any further action by Dealer and (B) after the  period of 6 months from the Trade Date (or 1 year from the Trade Date if, at such time,  informational requirements of Rule 144(c) under the Securities Act are not satisfied with  respect to Company) has elapsed in respect of any Restricted Shares delivered to Dealer  unless Dealer is an affiliate of Company at such time, or has been an affiliate of Company  in the immediately preceding 90 days, Company shall promptly remove, or cause the  transfer agent for such Restricted Shares to remove, any legends referring to any such  restrictions or requirements from such Restricted Shares upon request by Dealer (or such  affiliate of Dealer) to Company or such transfer agent, without any 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). Notwithstanding anything to the contrary herein, to the  extent the provisions of Rule 144 of the Securities Act or any successor rule are amended,  or the applicable interpretation thereof by the Securities and Exchange Commission or any  court change after the Trade Date, the agreements of Company herein shall be deemed  modified to the extent necessary, in the opinion of outside counsel of Company, to comply  with Rule 144 of the Securities Act, as in effect at the time of delivery of the relevant Shares  or Share Termination Delivery Property.  (iv) If the Private Placement Settlement or the Registration Settlement shall not be effected as  set forth in clauses (i) or (ii), as applicable, then failure to effect such Private Placement  





 






      23    #95272024v5   Settlement or such Registration Settlement shall constitute an Event of Default with respect  to which Company shall be the Defaulting Party.  (l) Limit on Beneficial Ownership.  Notwithstanding any other provisions hereof, Dealer may not  exercise any Warrant hereunder or be entitled to take delivery of any Shares deliverable hereunder,  and Automatic Exercise shall not apply with respect to any Warrant hereunder, to the extent (but  only to the extent) that, after such receipt of any Shares upon the exercise of such Warrant or  otherwise hereunder, (i) the Section 16 Percentage would exceed 9.0%, or (ii) the Share Amount  would exceed the Applicable Share Limit.  Any purported delivery hereunder shall be void and have  no effect to the extent (but only to the extent) that, after such delivery, (i) the Section 16 Percentage  would exceed 9.0%, or (ii) the Share Amount would exceed the Applicable Share Limit. If any  delivery owed to Dealer hereunder is not made, in whole or in part, as a result of this provision,  Company’s obligation to make such delivery shall not be extinguished and Company shall make  such delivery as promptly as practicable after, but in no event later than one Business Day after,  Dealer gives notice to Company that, after such delivery, (i) the Section 16 Percentage would not  exceed 9.0%, and (ii) the Share Amount would not exceed the Applicable Share Limit.   (m) Share Deliveries. Notwithstanding anything to the contrary herein, Company agrees that any  delivery of Shares or Share Termination Delivery Property shall be effected by book-entry transfer  through the facilities of DTC, or any successor depositary, if at the time of delivery, such class of  Shares or class of Share Termination Delivery Property is in book-entry form at DTC or such  successor depositary.    (n) Waiver of Jury Trial.   Each party waives, to the fullest extent permitted by applicable law, any right  it may have to a trial by jury in respect of any suit, action or proceeding relating to the Transaction.   Each party (i) certifies that no representative, agent or attorney of the other party has represented,  expressly or otherwise, that such other party would not, in the event of such a suit, action or  proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other party  have been induced to enter into the Transaction, as applicable, by, among other things, the mutual  waivers and certifications provided herein.  (o) Tax Disclosure.  Effective from the date of commencement of discussions concerning the  Transaction, Company 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 Company relating to such tax treatment and tax structure.  (p) Maximum Share Delivery.    (i) Notwithstanding any other provision of this Confirmation, the Agreement or the Equity  Definitions, in no event will Company at any time be required to deliver a number of Shares  greater than 1,123,730 (the “Maximum Number of Shares”) to Dealer in connection with  the Transaction.   (ii) In the event Company shall not have delivered to Dealer the full number of Shares or  Restricted Shares otherwise deliverable by Company to Dealer pursuant to the terms of the  Transaction because Company has insufficient authorized but unissued Shares that are not  reserved for other transactions (such deficit, the “Deficit Shares”), Company shall be  continually obligated to deliver, from time to time, Shares or Restricted Shares, as the case  may be, to Dealer until the full number of Deficit Shares have been delivered pursuant to  this Section 9(p)(ii), when, and to the extent that, (A) Shares are repurchased, acquired or  otherwise received by Company 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) Company additionally authorizes any unissued Shares that are  not reserved for other transactions; provided that in no event shall Company deliver any  Shares or Restricted Shares to Dealer pursuant to this Section 9(p)(ii) to the extent that  





 






      24    #95272024v5   such delivery would cause the aggregate number of Shares and Restricted Shares delivered  to Dealer to exceed the Maximum Number of Shares.  Company shall immediately notify  Dealer of the occurrence of any of the foregoing events (including the number of Shares  subject to clause (A), (B) or (C) and the corresponding number of Shares or Restricted  Shares, as the case may be, to be delivered) and promptly deliver such Shares or Restricted  Shares, as the case may be, thereafter.  (q) Right to Extend.  The Calculation Agent may postpone or add, in a commercially reasonable manner,  in whole or in part, any Expiration 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 Daily Number of Warrants with respect to one or more Expiration Dates) if Dealer  determines, in its commercially reasonable judgment, that such extension is reasonably necessary  or appropriate to preserve commercially reasonable hedging or hedge unwind activity hereunder in  light of existing liquidity conditions (but only if liquidity as of the relevant time is less than the  Calculation Agent’s commercially reasonable expectations of liquidity at such time as of the Trade  Date) or based on advice of counsel, to enable a dealer to effect transactions with respect to Shares  in connection with its commercially reasonable hedging, hedge unwind or settlement activity  hereunder in a manner that would, if such 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; provided that such policies and procedures have been  adopted by Dealer in good faith and are generally applicable in similar situations and applied in a  non-discriminatory manner; provided further that no such Expiration Date or other date of valuation,  payment or delivery may be postponed or added more than 80 Scheduled Trading Days after the  original Expiration Date or other date of valuation, payment or delivery, as the case may be.  (r) Status of Claims in Bankruptcy.  Dealer acknowledges and agrees that this Confirmation is not  intended to convey to Dealer rights against Company with respect to the Transaction that are senior  to the claims of common stockholders of Company in any United States bankruptcy proceedings of  Company; provided that nothing herein shall limit or shall be deemed to limit Dealer’s right to  pursue remedies in the event of a breach by Company of its obligations and agreements with respect  to the Transaction; provided, further, that nothing herein shall limit or shall be deemed to limit  Dealer’s rights in respect of any transactions other than the Transaction.  (s) Securities Contract; Swap Agreement.  The parties hereto intend for (i) the Transaction to be a  “securities contract” and a “swap agreement” as defined in the Bankruptcy Code (Title 11 of the  United States Code) (the “Bankruptcy Code”), and the parties hereto to be entitled to the  protections afforded by, among other Sections, Sections 362(b)(6), 362(b)(17), 546(e), 546(g), 555  and 560 of the Bankruptcy Code, (ii) a party’s right to liquidate the Transaction and to exercise any  other remedies upon the occurrence of any Event of Default under the Agreement with respect to  the other party to constitute a “contractual right” as described in the Bankruptcy Code, and (iii) each  payment and delivery of cash, securities or other property hereunder to constitute a “margin  payment” or “settlement payment” and a “transfer” as defined in the Bankruptcy Code.  (t) Wall Street Transparency and Accountability Act.  In connection with Section 739 of the Wall Street  Transparency and Accountability Act of 2010 (“WSTAA”), the parties hereby agree that neither the  enactment of WSTAA or any regulation under the WSTAA, nor any requirement under WSTAA or  an amendment made by WSTAA, shall limit or otherwise impair either party’s otherwise applicable  rights to terminate, renegotiate, modify, amend or supplement this Confirmation or the Agreement,  as applicable, arising from a termination event, force majeure, illegality, increased costs, regulatory  change or similar event under this Confirmation, the Equity Definitions incorporated herein, or the  Agreement (including, but not limited to, rights arising from Change in Law, Hedging Disruption,  Increased Cost of Hedging, an Excess Ownership Position, or Illegality (as defined in the  Agreement)).  (u) Agreements and Acknowledgements Regarding Hedging. Company understands, acknowledges and  agrees that: (A) at any time on and prior to the last Expiration Date, Dealer and its affiliates may  





 






      25    #95272024v5   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 Settlement Prices; and (D) any market activities of Dealer and its affiliates  with respect to Shares may affect the market price and volatility of Shares, as well as the Settlement  Prices, each in a manner that may be adverse to Company.  (v) Early Unwind. In the event the sale of the “Initial Securities” (as defined in the Purchase Agreement,  dated as of December 7, 2021, among Company, the guarantors party thereto and BofA Securities,  Inc., Truist Securities, Inc. and Wells Fargo Securities, LLC, as representatives of the Initial  Purchasers party thereto (the “Initial Purchasers”), is not consummated with the Initial Purchasers  for any reason, or Company fails to deliver to Dealer opinions of counsel as required pursuant to  Section 9(a), in each case by 5:00 p.m. (New York City time) on the Premium Payment Date, or  such later date as agreed upon by the parties (the Premium Payment Date or such later date the  “Early Unwind Date”), the Transaction shall automatically terminate (the “Early Unwind”), on  the Early Unwind Date and (i) the Transaction and all of the respective rights and obligations of  Dealer and Company under the Transaction shall be cancelled and terminated and (ii) each party  shall be released and discharged by the other party from and agrees not to make any claim against  the other party with respect to any obligations or liabilities of the other party arising out of and to  be performed in connection with the Transaction either prior to or after the Early Unwind Date.   Each of Dealer and Company represents and acknowledges to the other that upon an Early Unwind,  all obligations with respect to the Transaction shall be deemed fully and finally discharged.  (w) Payment by Dealer. In the event that (i) an Early Termination Date occurs or is designated with  respect to the Transaction as a result of a Termination Event or an Event of Default (other than an  Event of Default arising under Section 5(a)(ii) or 5(a)(iv) of the Agreement) and, as a result, Dealer  owes to Company an amount calculated under Section 6(e) of the Agreement, or (ii) Dealer owes to  Company, pursuant to Section 12.7 or Section 12.9 of the Equity Definitions, an amount calculated  under Section 12.8 of the Equity Definitions, such amount shall be deemed to be zero.  (x) Listing of Warrant Shares.  Company shall have submitted an application for the listing of the  Warrant Shares on the Exchange, and such application and listing shall have been approved by the  Exchange, subject only to official notice of issuance, in each case, on or prior to the Premium  Payment Date.  Company agrees and acknowledges that such submission and approval shall be a  condition precedent for the purpose of Section 2(a)(iii) of the Agreement with respect to each  obligation of Dealer under Section 2(a)(i) of the Agreement.  (y) Calculations; Determinations; Adjustments. All calculations, adjustments and determinations by the  Calculation Agent or the Determining Party shall be made in good faith and in a commercially  reasonable manner. Following any calculation, adjustment or determination by the Calculation  Agent or the Determining Party, as the case may be, hereunder, upon written request by Company,  the Calculation Agent or the Determining Party, as the case may be, shall promptly (but in any event  within four Scheduled Trading Days) provide to Company by e-mail to the e-mail address provided  by Company in such request a report (in a commonly used file format for the storage and  manipulation of financial data) displaying in reasonable detail the basis for such calculation,  adjustment or determination (including any assumptions used in making such adjustment,  determination or calculation), it being understood that neither the Calculation Agent nor the  Determining Party shall be obligated to disclose any proprietary or confidential data or information  or any proprietary or confidential models used by it for such calculation, adjustment or  determination, as applicable.  For the avoidance of doubt, whenever the Calculation Agent or the  Determining Party (as the case may be) is called upon to make an adjustment pursuant to the terms  of this Confirmation or the Equity Definitions to take into account the effect of an event, the  Calculation Agent or Determining Party (as the case may be) shall make such adjustment by  





 






      26    #95272024v5   reference to the effect of such event on the Hedging Party, assuming that the Hedging Party  maintains a commercially reasonable Hedge Position.  (z) Delivery or Receipt of Cash.  For the avoidance of doubt, other than receipt of the Premium by  Company, nothing in this Confirmation shall be interpreted as requiring Company to cash settle the  Transaction, except in circumstances where cash settlement is within Company’s control (including,  without limitation, where Company elects to deliver or receive cash, or where Company has made  Private Placement Settlement unavailable due to the occurrence of events within its control) or in  those circumstances in which holders of Shares would also receive cash.  (aa) Tax Matters.  (i) Withholding Tax Imposed on Payments to non-U.S. Counterparties under the United States  Foreign Account Tax Compliance Act. “Indemnifiable Tax” as defined in Section 14 of the  Agreement, shall not include any 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) Tax Documentation. For purposes of Section 4(a)(i) of the Agreement: (x) Company 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, (ii) upon reasonable  request of Dealer and (iii) promptly upon learning that any such tax form previously  provided by Company has become obsolete or incorrect. Additionally, Company shall,  promptly upon request by Dealer, provide such other tax forms and documents reasonably  requested by Dealer; and (y) Dealer shall provide to Company 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, (ii) upon reasonable request of Company and (iii) promptly upon  learning that any such tax form previously provided by Dealer has become obsolete or  incorrect.   (iii) Tax Representations. For purposes of Section 3(f) of the Agreement: (i) Company  represents to Dealer that for U.S. federal income tax purposes it is a “U.S. person” (as that  term is used in section 1.1441-4(a)(3)(ii) of the United States Treasury Regulations) and  an “exempt recipient” (as that term is used in section 1.6049-4(c)(1) of the United States  Treasury Regulations); and (ii) Dealer represents to Company that for U.S. federal income  tax purposes it is a “U.S. person” (as that term is used in section 1.1441-4(a)(3)(ii) of the  United States Treasury Regulations) and an “exempt recipient” (as that term is used in  section 1.6049-4(c)(1) of the United States Treasury Regulations).  (bb) 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. Delivery  of an executed signature page by facsimile or electronic transmission (e.g. “pdf” or “tif”), or any  electronic signature complying with the U.S. federal ESIGN Act of 2000, Uniform Electronic  Transactions Act or other applicable law, e.g., www.docusign.com, shall be effective as delivery of  a manually executed counterpart hereof.  (cc) U.S. Resolution Stay Protocol.  The parties agree that (i) to the extent that prior to the date hereof  both parties have adhered to the 2018 ISDA U.S. Resolution Stay Protocol (the “Protocol”), the  terms of the Protocol are incorporated into and form a part of this Confirmation, and for such  purposes this Confirmation shall be deemed a Protocol Covered Agreement and each party shall be  deemed to have the same status as “Regulated Entity” and/or “Adhering Party” as applicable to it  





 






      27    #95272024v5   under the Protocol; (ii) to the extent that prior to the date hereof the parties have executed a separate  agreement the effect of which is to amend the qualified financial contracts between them to conform  with the requirements of the QFC Stay Rules (the “Bilateral Agreement”), the terms of the Bilateral  Agreement are incorporated into and form a part of this Confirmation and each party shall be deemed  to have the status of “Covered Entity” or “Counterparty Entity” (or other similar term) as applicable  to it under the Bilateral Agreement; or (iii) if clause (i) and clause (ii) do not apply, the terms of  Section 1 and Section 2 and the related defined terms (together, the “Bilateral Terms”) of the form  of bilateral template entitled “Full-Length Omnibus (for use between U.S. G-SIBs and Corporate  Groups)” published by ISDA on November 2, 2018 (currently available on the 2018 ISDA U.S.  Resolution Stay Protocol page at www.isda.org and, a copy of which is available upon request), the  effect of which is to amend the qualified financial contracts between the parties thereto to conform  with the requirements of the QFC Stay Rules, are hereby incorporated into and form a part of this  Confirmation, and for such purposes this Confirmation shall be deemed a “Covered Agreement,”  Dealer shall be deemed a “Covered Entity” and Company shall be deemed a “Counterparty Entity.”  In the event that, after the date of this Confirmation, both parties hereto become adhering parties to  the Protocol, the terms of the Protocol will replace the terms of this paragraph. In the event of any  inconsistencies between this Confirmation and the terms of the Protocol, the Bilateral Agreement  or the Bilateral Terms (each, the “QFC Stay Terms”), as applicable, the QFC Stay Terms will  govern. Terms used in this paragraph without definition shall have the meanings assigned to them  under the QFC Stay Rules. For purposes of this paragraph, references to “this Confirmation” include  any related credit enhancements entered into between the parties or provided by one to the other. 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 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.  





 






          #95272024v5      Please confirm that the foregoing correctly sets forth the terms of our agreement by executing this  Confirmation and returning it to Dealer.   Very truly yours,  BANK OF AMERICA, N.A.  By:   Authorized Signatory  Name:     Accepted and confirmed  as of the Trade Date:  PATRICK INDUSTRIES, INC.  By:   Authorized Signatory  Name: