Exhibit 10.2


 







 


Nomura Global Financial Products Inc.


c/o Nomura Securities International, Inc.

Worldwide Plaza

309 West 49th Street

5th Floor

New York, NY 10019


December 4, 2014


	To:	 	ANI Pharmaceuticals, Inc.
	 	 	210 Main Street West
	 	 	Baudette, Minnesota 56623
	 	 	Attention:	 	Charlotte Arnold
	 	 	Title:	 	Chief Financial Officer
	 	 	Telephone No.:	 	(218) 634-3591
		 	Facsimile
    No.:	 	(302) 482-8645




 


	Re:	 	Base Warrants




 


The purpose of this
letter agreement (this “Confirmation”) is to confirm the terms and conditions of the Warrants issued by ANI
Pharmaceuticals, Inc. (“Company”) to Nomura Global Financial Products Inc. (“Nomura”)
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. This Confirmation shall replace any previous agreements and serve
as the final documentation for the Transaction.


 


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 Nomura 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 Nomura and Company had executed an agreement in such form
(but without any Schedule except for the election of the laws of the State of New York as the governing law (without reference
to choice of law doctrine)) on the Trade Date. In the event of any inconsistency between provisions of that Agreement and this
Confirmation, this Confirmation will prevail for the purpose of the Transaction to which this Confirmation relates. The parties
hereby agree that no Transaction other than the Transaction to which this Confirmation relates shall be governed by the Agreement.


 


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 4, 2014



 


		Effective Date:	The third 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:	Nomura



 


		Shares:	The common stock of Company, par value USD 0.0001 per share (Exchange symbol “ANIP”)



 


		Number of Warrants:	1,798,950. 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 96.21.



 


			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 53.45, 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 17,955,965.00



 


		Premium Payment Date:	December 10, 2014



 


		Exchange:	The NASDAQ Global Market



 


		Related Exchange(s):	All Exchanges



 


Procedures for Exercise.


 


		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 60th 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, 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 using commercially reasonable means.



 






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		First Expiration Date:	March 1, 2020 (or if such day is not a Scheduled Trading
Day, the next following Scheduled Trading Day), subject to Market Disruption Event below.



 


		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 clauses (ii) and (iii) in their entirety with “(ii) an Exchange Disruption, (iii) an Early Closure or (iv)
a Regulatory Disruption, in each case, that the Calculation Agent 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.



 


		Regulatory Disruption:	Any event that Nomura, in its discretion, determines
makes it appropriate with regard to any legal, regulatory or self-regulatory requirements or related policies and procedures,
for Nomura to refrain from or decrease any market activity in connection with the Transaction.



 


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 its reasonable discretion.



 


		Valuation Date:	Each Exercise Date.



 






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Settlement Terms.


 


		Settlement Method:	Net Share Settlement.



 


		Net Share Settlement:	On the relevant Settlement Date, Company shall deliver
to Nomura 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 Nomura 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 Nomura 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 ANIP US <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). 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 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 based on such sources as it deems appropriate using
a 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(j)(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 Nomura may be, upon delivery, subject to restrictions and limitations arising
from Company’s status as issuer of the Shares under applicable securities laws.



 






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3.           Additional
Terms applicable to the Transaction.


 


Adjustments
applicable to the Transaction:


 


		Method of Adjustment:	Calculation Agent Adjustment. 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, the Warrant Entitlement and any other variable relevant
to the exercise, settlement or payment for the Transaction. 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 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:


 


		MergerEvent:	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(g)(ii)(B) of this Confirmation, Nomura may elect, in its commercially reasonable judgment, whether the provisions of Section
12.2 of the Equity Definitions or Section ‎9(g)(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 Nomura may elect,
in its commercially reasonable judgment, Component Adjustment (Calculation Agent Determination) for all or any portion of the Transaction.



 






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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(g)(ii)(A) of this Confirmation, Nomura may elect, in its commercially reasonable judgment, whether the provisions of Section
12.3 of the Equity Definitions or Section 9(g)(ii)(A) will apply.



 


		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 “Announcement Event” and references to “Tender
Offer Date” shall be replaced by references to “date of such Announcement Event” and (y) for the avoidance
of doubt, the Calculation Agent may determine whether the relevant Announcement Event has had a material 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 any entity of (x) any
transaction or event that, if completed, would constitute a Merger Event or Tender Offer, (y) any potential acquisition by Issuer
and/or its subsidiaries where the aggregate consideration exceeds 15% of the market capitalization of Issuer as of the date of
such announcement (an “Acquisition Transaction”) or (z) the intention to enter into a Merger Event or
Tender Offer or an Acquisition Transaction, (ii) the public announcement by Issuer of an intention to solicit or enter into, or
to explore strategic alternatives or other similar undertaking that may include, a Merger Event or Tender Offer or an Acquisition
Transaction or (iii) any subsequent public announcement by any entity of a change to a transaction or intention that is the subject
of an announcement of the type described in clause (i) or (ii) of this sentence (including, without limitation, a new announcement,
whether or not by the same party, relating to such a transaction or intention or the announcement of a withdrawal from, or the
abandonment or discontinuation of, such a transaction or intention), as determined by the Calculation Agent. For the avoidance
of doubt, the occurrence of an Announcement Event with respect to any transaction or intention shall not preclude the occurrence
of a later Announcement Event with respect to such transaction or intention. For purposes of this definition of “Announcement
Event,” the remainder of the definition of “Merger Event” in Section 12.1(b) of the Equity Definitions following
the definition of “Reverse Merger” therein shall be disregarded.



 






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		Nationalization, Insolvency or Delisting:	Cancellation and Payment (Calculation Agent Determination);
provided that, in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it 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 word “Shares” with the phrase “Hedge Positions”
in clause (X) thereof and (ii) inserting the parenthetical “(including, for the avoidance of doubt and without limitation,
adoption 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 Trade Date” and (b) inserting
the following two phrases at the end of such Section:



 


			“For the avoidance of doubt, the term “equity price risk” shall be deemed to
include, but shall not be limited to, stock price and volatility risk. And, for the further avoidance of doubt, any such transactions
or assets referred to in phrases (A) or (B) above must be available on commercially reasonable pricing terms.”; and



 


		(ii)	Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line
thereof, after the words “to terminate the Transaction”, the words “or a portion of the Transaction affected
by such Hedging Disruption”.



 


		Increased Cost of Hedging:	Applicable



 


		Loss of Stock Borrow:	Applicable



 


		Maximum Stock Loan Rate:	100 basis points



 


		Increased Cost of Stock Borrow:	Applicable



 


		Initial Stock Loan Rate:	0 basis points until December 1, 2019 and 25 basis points
thereafter.



 


		Hedging Party:	For all applicable Additional Disruption Events, Nomura.



 


		Determining Party:	For all applicable Extraordinary Events, Nomura.



 


		Non-Reliance:	Applicable



 


		Agreements and Acknowledgments

 Regarding Hedging Activities:	Applicable



 


		Additional Acknowledgments:	Applicable



 


	4.	Calculation Agent.	Nomura




 


5.             Account Details.


 


		(a)	Account for payments to Company:



 


		Bank:	Bank of America, N.A.



		ABA#:	026009593



		Acct No.:	005800975699



		Beneficiary:	BioSante Pharmaceuticals, Inc.



		Ref:	Convert



 


Account for delivery of Shares from Company:


 


To be provided by Counterparty.


 


		(b)	Account for payments to Nomura:



 


		Agent Bank Name:	BOA FX TRADING



		Agent BIC:	BOFAUS3N



		Account Name:	BANK OF AMERICA
NY NGFP



		Account No/Ref:	6550361610



 


6.             Offices.


 


		(a)	The Office of Company for the Transaction is: Inapplicable, Company is not a Multibranch Party.



 


		(b)	The Office of Nomura for the Transaction is: Inapplicable, Nomura is not a Multibranch Party.



 






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7.           Notices.


 


		(a)	Address for notices or communications to Company:



 


ANI Pharmaceuticals, Inc.


210 Main Street West


Baudette, Minnesota 56623


		Attention:	Charlotte Arnold



		Title:	Chief Financial Officer



		Telephone No.:	(218) 634-3591



		Facsimile No.:	(302) 482-8645



 


With copies to:


 


Dentons US LLP


1221 Avenue of the Americas


New York, NY 10020-1089


		Attention:	Paul A. Gajer



		Telephone:	(212) 398-5293



		Facsimile No.:	(212) 768-6800



 


		(b)	Address for notices or communications to Nomura:



 


Nomura
Global Financial Products Inc.


c/o
Nomura Securities International, Inc.


Worldwide
Plaza


309
West 49th Street


5th
Floor


New
York, NY 10019


		Attention:	Equity Derivatives
Operations



		Telephone No.:	(212) 667-9580



		Facsimile No.:	(646) 587-8638



		Email:	EDGUSOps@us.nomura.com



 


With copies to:


 


		Attention:	Aurelien Bonnet



		Title:	Executive Director, Corporate Equity Solutions



		Telephone No.:	(212) 667-1465



		Facsimile No.:	(646) 587-8740



		Email:	aurelien.bonnet@nomura.com



 


		Attention:	James Chenard



		Title:	Vice President



		Telephone	No.: (212) 667-1363



		Facsimile No.:	(646) 587-8740



		Email:	james.chenard@nomura.com



 


		Attention:	Michael Ena



		Title:	Vice President, Legal



		Telephone No.:	(212) 298-4502



		Facsimile No.:	(646) 587-9924



		Email:	michael.ena@nomura.com



 


8.           Representations
and Warranties of Company.


 


Each of the representations and
warranties of Company set forth in Section 1 of the Underwriting Agreement (the “Underwriting Agreement”), dated
as of December 4, 2014, between Company and Guggenheim Securities, LLC, as representative of the Underwriters party thereto (the
“Underwriter”), are true and correct and are hereby deemed to be repeated to Nomura as if set forth herein.
Company hereby further represents and warrants to Nomura 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:


 






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		(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 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)	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.



 


		(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 and each of its affiliates is not, on the date hereof, in possession of any material non-public
information with respect to Company or the Shares.



 


		(h)	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 Nomura 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.



 






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		(j)	Company agrees that it (i) will not during the period beginning on, and including, the First Expiration
Date and ending on, and including, the last Expiration Date (the “Settlement Period”) make, or permit to be
made, any public announcement (as defined in Rule 165(f) under the Securities Act) of any Merger Transaction or potential Merger
Transaction unless such public announcement is made prior to the opening or after the close of the regular trading session on the
Exchange for the Shares; (ii) shall promptly (but in any event prior to the next opening of the regular trading session on the
Exchange) notify Nomura following any such announcement that such announcement has been made; and (iii) shall promptly (but in
any event prior to the next opening of the regular trading session on the Exchange) provide Nomura with written notice specifying
(A) Company’s average daily Rule 10b-18 Purchases (as defined in Rule 10b-18 of the Exchange Act) during the three full calendar
months immediately preceding the announcement date that were not effected through Nomura or its affiliates and (B) the number of
Shares purchased pursuant to the proviso in Rule 10b-18(b)(4) under the Exchange Act for the three full calendar months preceding
the announcement date. Such written notice shall be deemed to be a certification by Company to Nomura that such information is
true and correct. In addition, Company shall promptly notify Nomura of the earlier to occur of the completion of such transaction
and the completion of the vote by target shareholders. “Merger Transaction” means any merger, acquisition or
similar transaction involving a recapitalization as contemplated by Rule 10b-18(a)(13)(iv) under the Exchange Act.



 


9.           Other
Provisions.


 


		(a)	Opinions, Board Resolutions and Listing of Warrant Shares. Company shall deliver
to Nomura an opinion of counsel, dated as of the Trade Date, with respect to the matters set forth in Sections ‎8(a) through
‎(d) of this Confirmation. Prior to the Trade Date, Company shall deliver to Nomura a resolution of Company’s board of
directors authorizing the Transaction, and such other certificate or certificates as Nomura shall reasonably request. On or prior
to the Premium Payment Date, Company shall deliver to Nomura evidence that listing of the Warrant Shares has been approved by the
Exchange, subject to official notice of issuance. Delivery of such opinion, resolution, evidence and (if applicable) certificate(s),
as the case may be, to Nomura shall be a condition precedent for the purpose of Section 2(a)(iii) of the Agreement with respect
to each obligation of Nomura under Section 2(a)(i) of the Agreement.



 


		(b)	Repurchase Notices. Company shall, on any day on which Company effects any repurchase
of Shares, promptly give Nomura a written notice of such repurchase (a “Repurchase Notice”) on such day if following
such repurchase, the number of outstanding Shares on such day, subject to any adjustments provided herein, is (i) less than 11.08
million (in the case of the first such notice) or (ii) thereafter more than 0.29 million less than the number of Shares included
in the immediately preceding Repurchase Notice. Company agrees to indemnify and hold harmless Nomura 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 Nomura’s hedging activities as a consequence
of becoming, or of the risk of becoming, a Section 16 “insider”, including without limitation, any forbearance from
hedging activities or cessation of hedging activities and any losses in connection therewith with respect to the Transaction),
claims, damages, judgments, liabilities and expenses (including reasonable attorney’s fees), joint or several, which an Indemnified
Person actually may become subject to, as a result of Company’s failure to provide Nomura 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, 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 fees and expenses of such counsel related to such proceeding. Company shall not be liable for any settlement
of any 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. Company shall not, without the prior written consent of the Indemnified Person, effect any settlement of any pending
or threatened proceeding 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. 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.



 






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		(c)	Regulation M. Company is not on the Trade Date engaged in a distribution, as such
term is used in Regulation M (“Regulation M”) under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), of any securities of Company, other than (i) a distribution meeting the requirements of the exception set forth
in Rules 101(b)(10) and 102(b)(7) of Regulation M and (ii) the distribution of up to USD 143,750,000 of 3.00% Convertible
Senior Notes due 2019. Company shall not, until the second Scheduled Trading Day immediately following the Effective Date, engage
in any such distribution. During the Settlement Period (i) the Shares or securities that are convertible into, or exchangeable
or exercisable for, Shares are not, and shall not be, subject to a “restricted period,” as defined in Regulation M,
and (ii) Company shall not engage in any “distribution,” as defined in Regulation M, until the second Exchange Business
Day immediately following the last day of the Settlement Period.



 


		(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 otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for the Shares) or otherwise
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 Nomura. Nomura may, without Company’s consent, transfer or assign
all or any part of its rights or obligations under the Transaction to any third party. If at any time at which (A) the Section
16 Percentage exceeds 7.5%, (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”),
Nomura 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 Nomura and within a time period reasonably acceptable to Nomura such that no Excess Ownership
Position exists, then Nomura 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 Nomura 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(i) shall apply to any amount that is payable
by Company to Nomura pursuant to this sentence as if Company was not the Affected Party). The “Section 16 Percentage”
as of any day is the fraction, expressed as a percentage, as determined by Nomura, (A) the numerator of which is the number of
Shares that Nomura and each person subject to aggregation of Shares with Nomura under Section 13 or Section 16 of the Exchange
Act and rules promulgated thereunder directly or indirectly beneficially own (as defined under Section 13 or Section 16 of the
Exchange Act and rules promulgated thereunder) and (B) the denominator of which is the number of Shares outstanding. 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 Nomura 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 Nomura and any person whose ownership position would be aggregated
with that of Nomura (Nomura or any such person, a “Nomura 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 Nomura in its reasonable discretion. The “Applicable
Share Limit” means a number of Shares equal to (A) the minimum number of Shares that could give rise to reporting or
registration obligations or other requirements (including obtaining prior approval from any person or entity) of a Nomura Person,
or could result in an adverse effect on a Nomura Person, under any Applicable Restriction, as determined by Nomura in its reasonable
discretion, minus (B) 1% of the number of Shares outstanding. Notwithstanding any other provision in this Confirmation to
the contrary requiring or allowing Nomura to purchase, sell, receive or deliver any Shares or other securities, or make or receive
any payment in cash, to or from Company, Nomura 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 Nomura’s obligations in respect
of the Transaction and any such designee may assume such obligations. Nomura shall be discharged of its obligations to Company
to the extent of any such performance.



 






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		(f)	Dividends. If at any time during the period from and including the Effective Date,
to and including the last Expiration Date, an ex-dividend date for a cash dividend occurs with respect to the Shares, then the
Calculation Agent will adjust any of the Strike Price, Number of Warrants, Daily Number of Warrants and/or any other variable relevant
to the exercise, settlement or payment of the Transaction to preserve the fair value of the Warrants to Nomura after taking into
account such dividend.



 


		(g)	Additional Provisions.



 


		(i)	Amendments to the Equity Definitions:



 


		(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 word “an”; 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 “an” in the fifth line thereof, (x) adding the phrase “or Warrants”
after the words “the relevant Shares” in the same sentence, (y) deleting the words “diluting or concentrative”
in the sixth to last line thereof and (z) deleting the phrase “(provided that no adjustments will be made to account solely
for changes in volatility, expected dividends, stock loan rate or liquidity relative to the relevant Shares)” and replacing
it with the phrase “(and, for the avoidance of doubt, adjustments may be made to account solely for changes in volatility,
expected dividends, stock loan rate or liquidity relative to the relevant Shares).”



 


		(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) deleting from the fourth
line thereof the word “or” after the word “official” and inserting a comma therefor, and (2) deleting the
semi-colon at the end of subsection (B) thereof and inserting the following words therefor “or (C) 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.”



 






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		(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.



 


		(ii)	Notwithstanding anything to the contrary in this Confirmation, upon the occurrence of one of the
following events, with respect to the Transaction, (1) Nomura 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 Nomura in its sole discretion,
any portion of the Transaction, shall be deemed the sole Affected Transaction; provided that if Nomura 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)	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, has become the direct or indirect
“beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the common equity of Company representing more
than 50% of the voting power of such common equity. Notwithstanding the foregoing, any transaction or transactions set forth in
this clause (A) 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.



 






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		(B)	Consummation of (I) any recapitalization, reclassification or change of the Shares (other than
changes resulting from a subdivision or combination) as a result of which the Shares would be converted into, or exchanged for,
stock, other securities, other property or assets, (II) any share exchange, consolidation or merger of 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 of Company’s wholly owned subsidiaries. Notwithstanding the foregoing, any
transaction or transactions set forth in 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)	If (I) the directors who were members of Company’s board of directors on the Trade Date or
(II) the directors who become members of Company’s board of directors subsequent to that date and whose election, appointment
or nomination for election by Company stockholders is duly approved by a majority of the continuing directors on Company’s
board of directors at the time of such approval, either by a specific vote or by approval of the proxy statement issued by Company
on behalf of its entire board of directors in which such individual is named as nominee for director, cease to constitute at least
a majority of Company’s board of directors.



 


		(D)	Default by Company or any of its subsidiaries with respect to any mortgage, agreement or other
instrument under which there may be outstanding, or by which there may be secured or evidenced, any indebtedness for money borrowed
in excess of $15 million (or its foreign currency equivalent) in the aggregate of Company and/or any such subsidiary, whether such
indebtedness now exists or shall hereafter be created (i) resulting in such indebtedness becoming or being declared due and payable
without such indebtedness having been discharged or the acceleration of such payment of such indebtedness having been cured, rescinded,
waived or annulled within 30 days after written notice to Company or (ii) constituting a failure to pay the principal or interest
of any such debt when due and payable at its stated maturity, upon required repurchase, upon declaration of acceleration or otherwise.



 


		(E)	A final judgment for the payment of $15 million (or its foreign currency equivalent) or more (excluding
any amounts covered by insurance) rendered against Company or any of its subsidiaries, which judgment is not discharged 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.



 


		(F)	Nomura, despite using commercially reasonable efforts, is unable or reasonably determines that
it is impractical or illegal, to hedge its exposure with respect to the Transaction in the public market without registration under
the Securities Act or as a result of any legal, 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 Nomura).



 






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		(h)	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. Neither
party shall have the right to set off any obligation that it may have to the other party under the Transaction against any obligation
such other party may have to it, whether arising under the Agreement, this Confirmation or any other agreement between the parties
hereto, by operation of law or otherwise.



 


		(i)	Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events.



 


		(i)	If (x) 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 (y) 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 Nomura pursuant to Section 6(d)(ii) of the Agreement or any 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 Nomura, 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, (b) Company
remakes the representation set forth in Section ‎8(g) as of the date of such election and (c) Nomura agrees, in its sole discretion,
to such election, in which case the provisions of Section 12.7 or Section 12.9 of the Equity Definitions, or the provisions of
Section 6(d)(ii) of the Agreement, as the case may be, shall apply.



 


		Share Termination Alternative:	If applicable, Company shall deliver to Nomura 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(j)(i) below, in satisfaction, subject to Section ‎9(j)(ii) below, of the
relevant Payment Obligation, in the manner reasonably requested by Nomura 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(j)(i)).



 






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		Share Termination Unit Price:	The value to Nomura 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(j)(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(j)(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 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(j)(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.



 






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		(j)	Registration/Private Placement Procedures. If, in the reasonable opinion of Nomura,
following any delivery of Shares or Share Termination Delivery Property to Nomura hereunder, such Shares or Share Termination Delivery
Property would be in the hands of Nomura 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 Nomura 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, Company shall elect, prior to the first Settlement Date for the first applicable Expiration Date, a Private Placement Settlement
or Registration Settlement 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 reasonable adjustments 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
with respect to such Restricted Shares reasonably acceptable to Nomura; 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 Nomura (or any affiliate designated
by Nomura) 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 Nomura (or any such affiliate of Nomura). The Private Placement Settlement of such Restricted Shares
shall include customary representations, covenants, blue sky and other governmental filings and/or registrations, indemnities to
Nomura, due diligence rights (for Nomura or any designated buyer of the Restricted Shares by Nomura), opinions and certificates,
and such other documentation as is customary for private placement agreements, all reasonably acceptable to Nomura. In the case
of a Private Placement Settlement, Nomura shall determine the appropriate discount to the Share Termination Unit Price (in the
case of settlement of Share Termination Delivery Units pursuant to Section ‎9(i) 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 Nomura hereunder. 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 Nomura 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(i) above) or on the Settlement Date for such Restricted Shares (in the case of settlement
in Shares pursuant to Section ‎2 above).



 






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		(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 Nomura, to cover the resale of such Restricted Shares in
accordance with customary resale registration procedures, including covenants, conditions, representations, underwriting discounts
(if applicable), commissions (if applicable), indemnities, due diligence rights, opinions and certificates, and such other documentation
as is customary for equity resale underwriting agreements, all reasonably acceptable to Nomura. If Nomura, in its sole reasonable
discretion, is not satisfied with such procedures and documentation Private Placement Settlement shall apply. If Nomura 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(i) above or (y) the Settlement Date in respect of the final Expiration Date for all Daily Number
of Warrants) and ending on the Exchange Business Day on which Nomura completes the sale of all Restricted Shares 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). If the Payment Obligation exceeds the realized net proceeds
from such resale, Company shall transfer to Nomura by the open of the regular trading session on the Exchange on the Exchange Trading
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 Nomura may be transferred by and among Nomura and its affiliates and Company shall effect such transfer without any
further action by Nomura 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 Nomura, 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 Nomura (or
such affiliate of Nomura) 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 Nomura (or such affiliate of Nomura). 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.



 






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		(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 Settlement or such Registration Settlement
shall constitute an Event of Default with respect to which Company shall be the Defaulting Party.



 


		(k)	Limit on Beneficial Ownership. Notwithstanding any other provisions hereof, Nomura
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 7.5%, 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 7.5%, or (ii) the Share Amount would exceed
the Applicable Share Limit. If any delivery owed to Nomura 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, Nomura gives notice to Company that, after such delivery,
(i) the Section 16 Percentage would not exceed 7.5%, and (ii) the Share Amount would not exceed the Applicable Share Limit.



 


		(l)	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.



 


		(m)	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.



 


		(n)	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.



 


		(o)	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 two times the Number of Shares (the
“Maximum Number of Shares”) to Nomura in connection with the Transaction.



 


		(ii)	In the event Company shall not have delivered to Nomura the full number of Shares or Restricted
Shares otherwise deliverable by Company to Nomura 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 Nomura until
the full number of Deficit Shares have been delivered pursuant to this Section ‎9(o)(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
Nomura pursuant to this Section ‎9(o)(ii) to the extent that such delivery would cause the aggregate number of Shares and Restricted
Shares delivered to Nomura to exceed the Maximum Number of Shares. Company shall immediately notify Nomura 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.



 






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		(p)	Right to Extend. Nomura may postpone or add, 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 Nomura
determines, in its commercially reasonable judgment, that such extension is reasonably necessary or appropriate to preserve Nomura’s
hedging or hedge unwind activity hereunder in light of existing liquidity conditions or to enable Nomura to effect purchases of
Shares in connection with its hedging, hedge unwind or settlement activity hereunder in a manner that would, if Nomura 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 Nomura.



 


		(q)	Status of Claims in Bankruptcy.  Nomura acknowledges and agrees that this Confirmation
is not intended to convey to Nomura 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 Nomura’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 Nomura’s rights in respect of any transactions other than the Transaction.



 


		(r)	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.



 


		(s)	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)).



 


		(t)	Agreements and Acknowledgements Regarding Hedging. Company understands, acknowledges
and agrees that: (A) at any time on and prior to the last Expiration Date, Nomura and its affiliates may buy or sell Shares or
other securities or buy or sell options or futures contracts or enter into swaps or other derivative securities in order to adjust
its hedge position with respect to the Transaction; (B) Nomura 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) Nomura 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 Nomura 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.



 






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		(u)	Early Unwind. In the event the sale of the “Firm Securities” (as defined
in the Underwriting Agreement) is not consummated with the Underwriter for any reason, or Company fails to deliver to Nomura 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 Nomura 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; provided that Company shall purchase from Nomura on
the Early Unwind Date all Shares purchased by Nomura or one or more of its affiliates in connection with the Transaction at the
then prevailing market price. Each of Nomura and Company represents and acknowledges to the other that, subject to the proviso
included in this Section ‎9(u), upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully
and finally discharged.



 


		(v)	Payment by Nomura. 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, Nomura owes to Company an amount calculated under Section
6(e) of the Agreement, or (ii) Nomura 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.



 


		(w)	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.



 


		(x)	Matters relating to Nomura and the Agent.



 


		(i)	Nomura is not registered as a broker or dealer under the Exchange Act. Nomura Securities International,
Inc. (“Agent”) has acted solely as agent for Nomura and Company to the extent required by law in connection
with the Transaction and has no obligations, by way of issuance, endorsement, guarantee or otherwise, with respect to the performance
of either party under the Transaction. The parties agree to proceed solely against each other, and not against Agent, in seeking
enforcement of their rights and obligations with respect to the Transaction, including their rights and obligations with respect
to payment of funds and delivery of securities.



 


		(ii)	Agent may have been paid a fee by Nomura in connection with the Transaction. Further details will
be furnished upon written request.



 


		(iii)	The time of the Transaction will be furnished by Agent upon written request.



 






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Please confirm that
the foregoing correctly sets forth the terms of our agreement by executing this Confirmation and returning it to us.


  


	 	Very truly yours,
	 	 	 
	 	 	Nomura Global Financial Products Inc.
	 	 	 
	 	 	 
	 	 	By:	/s/ Charlotte C. Arnold
	 	 	Authorized Signatory
	 	 	Name: Charlotte C. Arnold


  


Accepted and confirmed

as of the Trade Date:


 


	ANI Pharmaceuticals, Inc.
	 
	 
	By:	/s/ Thomas Bailey	 
	Authorized Signatory
	Name:Thomas Bailey


 






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