EX-10.31



 Exhibit 10.31 

 
 



 
 FIXED $$ DISCOUNTED SHARE BUYBACK (“DSB”) WITH INITIAL DELIVERY 

 

			
	To:	  	SurModics, Inc.
		
	Attention:	  	Andrew D. C. LaFrence
	Phone:	  	952-500-7062
	Fax:	  	952-500-7001
		
	From:	  	Wells Fargo Bank, National Association (“Wells Fargo”)

 The purpose of this communication (this “Confirmation”) is to confirm the terms and conditions of the
transaction entered into between Wells Fargo Bank, National Association (“Wells Fargo”) and SurModics, Inc. (“Counterparty”) on the Trade Date specified below (the “Transaction”). This Confirmation
constitutes a “Confirmation” as referred to in the Agreement specified below. 
 This Confirmation is subject to, and incorporates,
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”). In the event
of any inconsistency between the Equity Definitions and this Confirmation, this Confirmation will prevail. 
 1. This Confirmation
evidences a complete and binding agreement between Wells Fargo and Counterparty 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 Wells Fargo and Counterparty had executed an agreement in such form (but without any Schedule except for the election of (i) the law (and not the law of conflicts) of the
State of New York as the governing law and (ii) United States dollars as the Termination Currency) 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 parties hereby agree that no Transaction other than the Transaction to which this Confirmation relates shall be governed by the Agreement. This Transaction is a Share Forward
Transaction within the meaning set forth in the Equity Definitions. 
  

	2.	The terms of the particular Transaction to which this Confirmation relates are as follows: 


General Terms: 
  

			
	 Trade Date:
	  	November 11, 2014
		
	 Seller:
	  	Wells Fargo
		
	 Buyer:
	  	Counterparty
		
	 Shares:
	  	The common stock of Counterparty (the “Issuer”), par value USD 0.05 per share (NASDAQ ticker symbol:
“SRDX”)









			
		
	 Variable Obligation:
	  	Applicable
		
	 VWAP Price:
	  	For any Averaging Date, the 10b-18 volume-weighted average price per Share at which the Shares trade for the regular trading session (including any extensions thereof) of the
Exchange on such Averaging Date (without regard to pre-open or after hours trading outside of such regular trading session), as reported by Bloomberg at 4:15 p.m. New York City time (or 15 minutes following the end of any extension of the regular
trading session) on such Averaging Date, on Bloomberg Page “SRDX <Equity> AQR_SEC” (or any successor thereto). If such price is not reported on such Averaging Date for any reason or is, in the Calculation Agent’s good
faith and commercially reasonable discretion, erroneous, such VWAP Price shall be determined by the Calculation Agent in good faith and in a commercially reasonable manner.
		
	 Exchange:
	  	NASDAQ Global Select Market
		
	 Related Exchange(s):
	  	All Exchanges
		
	 Prepayment:
	  	Applicable
		
	 Prepayment Date:
	  	One Currency Business Day after the Trade Date.
		
	 Prepayment Amount:
	  	As specified in Appendix A.
		
	 Initial Shares:
	  	As specified in Appendix A.
		
	 Initial Share Delivery Date:
	  	The Prepayment Date. On the Initial Share Delivery Date, Seller shall deliver a number of Shares equal to the Initial Shares to Buyer in accordance with Section 9.4 of the Equity
Definitions, with the Initial Share Delivery Date deemed to be a “Settlement Date” for purposes of such Section 9.4.
		
	Valuation Terms:	  	
		
	 Valuation Date:
	  	As specified in Appendix A.
		
	 Averaging:
	  	Applicable
		
	 Averaging Dates:
	  	As specified in Appendix A.
		
	 Averaging Period:
	  	All Averaging Dates.
		
	 Settlement Price:
	  	For the Valuation Date, the arithmetic average of the VWAP Price on each Averaging Date for such Valuation Date minus Price Adjustment.
		
	 Price Adjustment:
	  	As specified in Appendix A.


  
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	 Valuation Disruption:
	  	 The definition of “Market Disruption Event” in Section 6.3(a) of the Equity Definitions is hereby amended by replacing the
words “at any time during the one-hour period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be” with “at any time on any Scheduled Trading Day
during the Averaging Period” in the third line thereof.
  
 Section
6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the term “Scheduled Closing Time” in the fourth line thereof.

 
 Notwithstanding anything to the contrary in the Equity Definitions, if any Averaging
Date in the Averaging Period is a Disrupted Day, the Calculation Agent shall have the option in its commercially reasonable discretion either (i) to elect to extend the Averaging Period by a number of Scheduled Trading Days equal to the number of
Disrupted Days during the Averaging Period or (ii) determine that such Averaging Date is a Disrupted Day only in part, in which case the Calculation Agent shall (x) determine the VWAP Price for such Disrupted Day based on Rule 10b-18 eligible
transactions in the Shares on such Disrupted Day taking into account the nature and duration of such Market Disruption Event and (y) determine the Settlement Price based on an appropriately weighted average instead of the arithmetic average
described under “Settlement Price” below, with such adjustments based on, among other factors, the duration of any Market Disruption Event and the volume, historical trading patterns and price of the Shares. Any day on which the Exchange
is scheduled to close prior to its normal closing time shall be considered a Disrupted Day in whole. With respect to any determination as described in clause (ii)(y) above, the Calculation Agent shall provide written notice to Buyer setting forth
reasonable detail to support the Calculation Agent’s determination of the Settlement Price, it being understood that the Calculation Agent shall not be obligated to disclose any proprietary models used by it for such determination or
calculation.

		
	 Additional Market Disruption Events:
	  	 If Seller determines, in its good faith and commercially reasonable discretion, on any Scheduled Trading Day during any Averaging
Period that a Hedging Disruption (as defined in Section 12.9(a)(v) of the Equity Definitions) has occurred, Seller shall notify Buyer and a Market Disruption Event shall be deemed to have occurred. In the event of a Hedging Disruption, Section
12.9(b)(iii) of the Equity Definitions shall not apply.
  
 If on any
Averaging Date (i) the trading volume or liquidity of trading in the Shares is materially reduced from levels prevailing on the Trade Date, (ii) the Calculation Agent determines in its commercially reasonable discretion that such reduction has had a
materially adverse effect on Seller’s ability to effect a commercially reasonable hedge of its obligations under this Transaction and (iii) the Calculation Agent determines in its commercially reasonable discretion that as a result it would be
appropriate to treat such Averaging Date as a Disrupted Day, then Seller shall notify Buyer and a Market Disruption Event shall be deemed to have occurred.



  
 3 









			
	Settlement Terms:	  	
		
	 Settlement Currency:
	  	USD
		
	 Settlement Method:
	  	 Physical Settlement; Seller shall make the representations set forth in Section 9.11 of the Equity Definitions, except for any
representations related to any registration or qualification required under applicable securities laws that are not applicable as a result of the fact that Buyer is the issuer of the Shares.

 
 On the Settlement Date, Seller shall deliver to Buyer a number of Shares equal to (a)
(i) the Prepayment Amount divided by (ii) the Settlement Price as determined on each Valuation Date, minus (b) the Initial Shares (such number of Shares, the “Settlement Amount”), rounded to the nearest whole number of
Shares; provided, however, that if the Settlement Amount is less than zero, then Buyer shall deliver to Seller a number of Shares equal to the absolute value of the Settlement Amount (such number of Shares, the “Payment Shares”). The
delivery of Shares by Buyer must be done in adherence to Section 11 of this Confirmation.
  
 Notwithstanding the proviso above, if the Settlement Amount is less than zero, Buyer may in its sole discretion cash settle its obligation to deliver the Payment Shares by delivering to Seller a notice by
no later than the Valuation Date electing to cash settle its obligation to deliver the Payment Shares. Any such cash settlement shall be effected in accordance with “Cash Settlement of Payment Shares” below.

		
	 Settlement Date:
	  	The date that follows the Valuation Date by one Settlement Cycle.
		
	 Cash Settlement of Payment Shares:
	  	If Buyer elects to cash settle its obligation to deliver Payment Shares, then on the Valuation Date a balance (the “Settlement Balance”) shall be created with an
initial balance equal to the Payment Shares. On the Settlement Date, Buyer shall deliver to Seller a U.S. dollar amount equal to the Payment Shares multiplied by a price per Share as reasonably determined by the Calculation Agent based on the
projected acquisition price of such Payment Shares (such cash amount, the “Initial Cash Settlement Amount”). On the Exchange Business Day immediately following the delivery of the Initial Cash Settlement Amount, Seller shall begin
purchasing Shares in a commercially reasonable manner (all such Shares purchased, “Cash Settlement Shares”). At the end of each Exchange Business Day on which Seller purchases Cash Settlement Shares, Seller shall reduce (i) the Settlement
Balance by the number of Cash Settlement Shares purchased on such Exchange Business Day and (ii) the Initial Cash Settlement Amount by the aggregate purchase price (including commissions) of the Cash Settlement Shares on such Exchange Business Day.
If, on any Exchange Business Day, the Initial Cash Settlement Amount is reduced to or below zero but the Settlement Balance is above zero, the Buyer shall deliver to Seller or as
directed


  
 4 









			
		
		  	by Seller on the next Exchange Business Day after such Exchange Business Day an additional U.S. dollar amount (an “Additional Cash Settlement Amount”) equal to the
Settlement Balance as of such Exchange Business Day multiplied by a price per Share as reasonably determined by the Calculation Agent based on the projected acquisition price of the remaining Payment Shares. This provision shall be applied
successively until the Settlement Balance is reduced to zero. On the Exchange Business Day that the Settlement Balance is reduced to zero (the “Final Settlement Valuation Date”), Seller shall return to Buyer any unused portion of the
Initial Cash Settlement Amount or the Additional Cash Settlement Amount, as the case may be. The period during which Seller purchases Cash Settlement Shares is the “Settlement Valuation Period.” For the avoidance of doubt, any purchases of
Cash Settlement Shares, or the projected acquisition price thereof, contemplated by this paragraph shall be made or based over a period of time commensurate with unwinding a commercially reasonable hedge position for the Transaction and in
accordance with the timing, price and volume restrictions contained in SEC Rule 10b-18 as if purchases were made by or on behalf of Buyer.
		
	Share Adjustments:	  	
		
	 Potential Adjustment Event:
	  	It shall constitute an additional Potential Adjustment Event if a Market Disruption Event has been deemed to have occurred or if Seller otherwise suspends trading in the Shares
for all or any portion of a Scheduled Trading Day within the Averaging Period, in which case the Calculation Agent may, in its commercially reasonable discretion, adjust any relevant terms of the Transaction as appropriate to account for the
economic effect on the Transaction of such Market Disruption Event.
		
	 Method of Adjustment:
	  	Calculation Agent Adjustment
		
	 Excess Dividend:
	  	For any fiscal quarter, any dividend or distribution on the Shares with an ex-dividend date occurring during such fiscal quarter (other than any dividend or distribution of the
type described in Section 11.2(e)(i) or Section 11.2(e)(ii)(A) or (B) of the Equity Definitions) (a “Dividend”) the amount or value of which (as determined by the Calculation Agent), when aggregated with the amount or value of any
and all previous Dividends with ex-dividend dates occurring in the same fiscal quarter, exceeds the Ordinary Dividend Amount. For the avoidance of doubt, the Calculation Agent shall not make any adjustment for an Ordinary Dividend Amount.
“Extraordinary Dividend” means the per Share cash dividend or distribution, or a portion thereof, declared by Counterparty on the Shares that is classified by the board of directors of Counterparty as an “extraordinary” dividend.
For the avoidance of doubt, an Extraordinary Dividend shall not be deemed to be an Excess Dividend.


  
 5 









			
	 Ordinary Dividend Amount:
	  	As specified in Appendix A
		
	 Early Ordinary Dividend Payment:
	  	If an ex-dividend date for any Dividend that is not (x) an Excess Dividend, (y) a dividend or distribution of the type described in Section 11.2(e)(i) or Section 11.2(e)(ii)(A)
or (B) of the Equity Definitions and (z) an Extraordinary Dividend, occurs during any fiscal quarter (in whole or in part) during the Relevant Dividend Period and is prior to the Expected Ex-Dividend Date for the relevant fiscal quarter (as
determined by the Calculation Agent), the Calculation Agent shall make such adjustment to the exercise, settlement, payment or any other terms of the Transaction as the Calculation Agent determines appropriate to account for the economic effect on
the Transaction of such event.
		
	 Expected Ex-Dividend Dates:
	  	As specified in Appendix A
		
	 Relevant Dividend Period:
	  	The period from and including the Trade Date to and including the Relevant Dividend Period End Date.
		
	 Relevant Dividend Period

End Date:
	  	If the Number of Shares to be Delivered is negative, the last day of the Settlement Valuation Period; otherwise, the Valuation Date.
		
	Extraordinary Events:	  	 Upon (x) the occurrence or effective designation of an Early Termination Date in respect of the Transaction or (y) the occurrence of
an Extraordinary Event that results in the cancellation or termination of the Transaction pursuant to Section 12.2, 12.3, 12.6 or 12.9 of the Equity Definitions (any such event as described in clause (x) or (y) above, an “Early Termination
Event”) (except, in the case of clause (y), an Extraordinary Event that is a Nationalization, Insolvency, a Merger Event or a Tender Offer, in each case, in which the consideration or proceeds to be paid to holders of Shares consists solely
of cash), if one party would owe any amount to the other party pursuant to Section 6(d)(ii) of the Agreement or any Cancellation Amount pursuant to Section 12.2, 12.3, 12.6, 12.7, 12.8 or 12.9 of the Equity Definitions (any such amount, a
“Payment Amount”), then on the date on which any Payment Amount is due, in lieu of any payment or delivery of such Payment Amount, Counterparty may elect, by prior written notice to Wells Fargo as provided in the succeeding
paragraph, that the party owing such amount shall deliver to the other party a number of Shares (or, in the case of a Merger Event, Tender Offer, Nationalization or Insolvency, a number of units, each comprising the number or amount of the
securities or property that a hypothetical holder of one Share would receive in such Extraordinary Event (each such unit, an “Alternative Termination Delivery Unit” and, the securities or property comprising such unit,
“Alternative Termination Property”)) with a value equal to the Payment Amount, as determined in a commercially reasonable manner by the Calculation Agent (and the parties agree that, in making such determination of value, the
Calculation Agent may take into account a number of factors, including the market price of the Shares or Alternative Termination Property as of the Early Termination Date or the date as of which the Cancellation Amount is determined and, if such
delivery is made by Wells Fargo, the prices at which Wells Fargo purchases Shares or Alternative Termination Property to fulfil its delivery obligations, to



  
 6 









			
		  	 the extent doing so provides a commercially reasonable result) over a number of Scheduled Trading Days selected by Calculation Agent
in good faith and in its commercially reasonable discretion based on the number of Scheduled Trading Days that would be appropriate to unwind a commercially reasonable hedge position; provided that in determining the composition of any
Alternative Termination Delivery Unit, if the relevant Extraordinary Event involves a choice of consideration to be received by holders, such holder shall be deemed to have elected to receive the maximum possible amount of cash; provided further
that the Calculation Agent shall provide written notice to Buyer setting forth reasonable detail to support the Calculation Agent’s determination of the value of any Shares or Alternative Termination Delivery Units determined as described
above, it being understood that the Calculation Agent shall not be obligated to disclose any proprietary models used by it for such determination or calculation.
  

If Counterparty elects for Wells Fargo to settle any Payment Amount owed by Wells Fargo to it in Shares or Alternative Termination Property, then on the
date such Payment Amount is due, a settlement balance (the “Settlement Balance”) shall be established with an initial balance equal to the Payment Amount. On such date, Wells Fargo shall commence purchasing Shares or Alternative
Termination Property over a commercially reasonable period for delivery to Counterparty and in a commercially reasonable manner to unwind a commercially reasonable hedge position. At the end of each Scheduled Trading Day on which Wells Fargo
purchases Shares or Alternative Termination Property pursuant to this paragraph, Wells Fargo shall reduce the Settlement Balance by the amount paid by Wells Fargo to purchase the Shares or Alternative Termination Property purchased on such Scheduled
Trading Day. Wells Fargo shall deliver any Shares or Alternative Termination Property purchased on a Scheduled Trading Day to Counterparty on the third Clearance System Business Day following the relevant Scheduled Trading Day. Wells Fargo shall
continue purchasing Shares or Alternative Termination Property over a commercially reasonable period until the Settlement Balance has been reduced to zero. If delivery of Shares or Alternative Termination Property is to be made by Wells Fargo
pursuant to this paragraph, the period during which Wells Fargo purchases Shares or Alternative Termination Property to fulfill its delivery obligations under this paragraph shall be referred to as the “Seller Termination Purchase
Period.”
  
 If Counterparty elects to settle any Payment Amount owed
to Wells Fargo in Shares or Alternative Termination Property it must do so in adherence to Section 11 of this Confirmation and in a manner such that the value received by Wells Fargo (net of all commercially reasonable fees, expenses or discounts to
compensate Wells Fargo for any discount from the public market price of the Shares incurred on the sale of such Shares in a private placement) is not less than the Payment Amount. For the avoidance of doubt, notwithstanding anything to the contrary
in the Definitions or this Confirmation, the Payment Amount will not reflect the value associated with any Excess Dividend or Extraordinary Dividend declared or paid by Counterparty to holders of record of any Shares as of any date occurring on or
after the Trade Date and prior to the date on which the Payment Amount is received.



  
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	 Announcement Date:
	  	 The definition of “Announcement Date” in Section 12.1(l) of the Equity Definitions shall be amended by (i) replacing the
words “a firm” with the word “any” in the second and fourth lines thereof, (ii) replacing the word “leads to the” in the third and the fifth lines thereof with the words “, if completed, would lead to a”,
(iii) replacing the words “voting shares” in the fifth line thereof with the word “Shares”, (iv) inserting the words “by any entity” after the word “announcement” in the second and the fourth lines thereof,
(v) inserting the words “or to explore the possibility of engaging in” after the words “engage in” in the second line thereof, (vi) inserting the words “or to explore the possibility of purchasing or otherwise
obtaining” after the word “obtain” in the fourth line thereto, (vii) deleting the parenthetical in the fifth line thereof and (viii) adding immediately after the words “Tender Offer” in the fifth line thereof “, and any
publicly announced change or amendment to such an announcement (including the announcement of an abandonment of such intention)”. Sections 12.3(a) and 12.3(d) of the Equity Definitions shall each be amended by replacing each occurrence of the
words “Tender Offer Date” with “Announcement Date.”
  

For purposes of this Transaction, the definition of “Merger Date” in Section 12.1(c) of the Equity Definitions shall be amended to read,
“Merger Date shall mean the Announcement Date.” For purposes of this Transaction, the definition of “Tender Offer Date” in Section 12.1(e) Equity Definitions shall be amended to read, “Tender Offer Date shall mean the
Announcement Date.”

		
	Consequences of Merger Events:	  	
		
	 Share-for-Share:
	  	Modified Calculation Agent Adjustment
		
	 Share-for-Other:
	  	Cancellation and Payment
		
	 Share-for-Combined:
	  	Component Adjustment
		
	 New Shares:
	  	In the definition of “New Shares” in Section 12.1(i) of the Equity Definitions, the text in clause (i) thereof shall be deleted in its entirety and replaced with
“publicly quoted, traded or listed on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors).”
		
	 Determining Party:
	  	Wells Fargo
		
	Tender Offer:	  	Applicable
	
	Consequences of Tender Offers:
		
	 Share-for-Share:
	  	Modified Calculation Agent Adjustment
		
	 Share-for-Other:
	  	Cancellation and Payment


  
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	 Share-for-Combined:
	  	Component Adjustment
		
	 Determining Party:
	  	Wells Fargo
		
	 Composition of Combined Consideration:
	  	Not Applicable; provided that notwithstanding Sections 12.1(f) and 12.5(b) of the Equity Definitions, to the extent that the composition of the consideration for the
relevant Shares in connection with a Merger Event or Tender Offer could be determined by a holder of the Shares, the Calculation Agent shall, in its sole discretion, determine the composition of such consideration for purposes of determining the
consequences of such Merger Event or Tender Offer under the Transaction.
		
	 Nationalization, Insolvency or Delisting:
	  	 Cancellation and Payment
  

In addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it shall also constitute a Delisting if the Exchange is located in the
United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors); if the Shares are immediately
re-listed, re-traded or re-quoted on any such exchange or quotation system, such exchange or quotation system shall thereafter be the Exchange.

		
	 Determining Party:
	  	Wells Fargo
	
	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 public announcement of, the formal or informal interpretation”, (ii) by replacing the word “Shares” where it appears in clause (X) thereof with the words “Shares or Hedge Positions” and (iii) by
immediately following the word “Transaction” in clause (X) thereof, adding the phrase “in the manner contemplated by the Hedging Party on the Trade Date”; provided further that Section 12.9(a)(ii) of the Equity Definitions
is hereby amended by 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 or
promulgation of new regulations authorized or mandated by existing statute)”.
		
	 Failure to Deliver:
	  	Not Applicable
		
	 Insolvency Filing:

 
 Hedging Disruption:

 
 Hedging Party:

 
 Increased Cost of Hedging:
	  	 Applicable
  

Applicable
  
 Wells Fargo
  
 Not
Applicable



  
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	 Hedging Party:
  

Loss of Stock Borrow:
  

Maximum Stock Loan Rate:
  

Hedging Party:
  

Increased Cost of Stock Borrow:
  

Initial Stock Loan Rate:
  

Hedging Party:
	  	 Wells Fargo
  

Applicable
  
 150 basis points per annum
  

Wells Fargo
  
 Applicable
  
 40 basis points
per annum
  
 Wells Fargo

		
	 Determining Party for all Extraordinary Events:
	  	Wells Fargo
		
	Miscellaneous:	  	
		
	 Non-Reliance:
	  	Applicable
		
	 Agreements and Acknowledgments Regarding Hedging Activities:
	  	Applicable
		
	 Additional Acknowledgments:
	  	Applicable

  

	3.	Calculation Agent:             Wells Fargo 


 

	4.	Account Details: 

  

			
	 Wells Fargo’s USD payment instructions:
	  	 ABA: 121-000-248
 Wells
Fargo Bank, National Association
 Charlotte, NC
 Internal Acct No. 01020304464228
 A/C Name: WFB Equity Derivatives

		
	 Wells Fargo’s delivery instructions:
	  	 DTC Number:             2072

Agent ID:                    52196

Institution ID:             52196

		
	 Counterparty’s payment and delivery instructions:
	  	 To be advised.


  

	5.	Offices: 

  

	 	(a)	The Office of Wells Fargo for the Transaction is: 

 Wells Fargo Bank, National Association 
 375 Park Avenue 

 

  
 10 









 New York, NY 10152 

For notices with respect to the Transaction: 
 Notwithstanding anything to the contrary in the Agreement, all notices to Wells Fargo in connection with the Transaction are effective only upon receipt of email message to
CorporateDerivativeNotifications@wellsfargo.com 
  

	 	(b)	The Office of Counterparty for the Transaction is: None 

 For notices with respect to the Transaction: 
 SurModics, Inc. 

9924 W 74th St 

Eden Prairie, MN 55344 
 Notwithstanding anything to the contrary in the Agreement, all notices to Counterparty in connection with the Transaction are effective only upon receipt of email message to alafrence@surmodics.com

  

	6.	Additional Provisions. 

  

	(a)	Buyer Representations and Agreements. Buyer represents and warrants to, and agrees with, Seller as follows: 


(i) Public Reports. As of the Trade Date, Buyer is in compliance with its reporting obligations under the Exchange Act of
1934, as amended (the “Exchange Act”), and all reports and other documents filed by Buyer with the Securities and Exchange Commission (“SEC”) pursuant to the Exchange Act, when considered as a whole (with the most
recent such reports and documents deemed to amend inconsistent statements contained in any earlier such reports and documents), do not contain any untrue statement of a material fact or any omission of a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading. Without limiting the generality of the foregoing, as of the Trade Date, Buyer is not aware of any material non-public information
regarding Buyer or the Shares. 
 (ii) Regulation M. Buyer is not on the Trade Date engaged in a
“distribution,” as such term is used in Regulation M, that would preclude purchases by Buyer of Shares. In the event that Buyer reasonably concludes that it or any of its affiliates or agents will take any action that would cause
Regulation M to be applicable to any purchases of Shares, or any security for which the Shares is a “reference security” (as defined in Regulation M), by Buyer or any of its “affiliated purchasers” (as defined in Regulation M) on
any day prior to the second Scheduled Trading Day immediately following the later of the (i) the Valuation Date, (ii) the Final Settlement Valuation Date, and (iii) the last day of the Seller Termination Purchase Period, as
applicable, Buyer shall provide Seller at least five Scheduled Trading Days’ written notice of such fact prior to the beginning of the restricted period applicable to such distribution under Regulation M. Buyer acknowledges that any such action
could cause the occurrence of an Additional Market Disruption Event (and, accordingly, a Potential Adjustment Event). Accordingly, Buyer acknowledges that its actions in relation to any such notice must comply with the standards set forth in
Section 6(b)(iii) below. 
 (iii) No Manipulation. Buyer 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 and will not engage in any other securities or derivative transaction to such ends. 

  
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 (iv) No Distribution. Buyer is not entering into the Transaction to facilitate
a distribution of the Shares (or any security that may be converted into or exercised or exchanged for Shares, or whose value under its terms may in whole or in significant part be determined by the value of the Shares) or in connection with any
future issuance of securities. 
 (v) Solvency. As of the Trade Date, the Initial Share Delivery Date, the
Prepayment Date and the Settlement Date, (a) the aggregate fair market value of Buyer’s assets will exceed its liabilities (including contingent, subordinated, unmatured and unliquidated liabilities), (b) it has not engaged in and
will not engage in any business or transaction after which the property remaining with it will be unreasonably small in relation to its business, (c) it has not incurred and does not intend to incur debts beyond its ability to pay as they
mature, and (d) as a result of entering into and performing its obligations under the Transaction, (x) it has not violated and will not violate any relevant state law provision applicable to the acquisition or redemption by an issuer of
its own securities and (y) it would not be nor would it be rendered “insolvent” (as such term is defined under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy
Code”)). 
 (vi) [Reserved.] 
 (vii) Tender Offers. The purchase or writing of the Transaction by Buyer will not violate Rule 13e-1 or Rule 13e-4 under the Exchange Act. 

(viii) Investment Company. Buyer is not, and after giving effect to the transactions contemplated hereby will not be,
required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended. 
 (ix) Accounting Treatment. Without limiting the generality of Section 13.1 of the Equity Definitions, Buyer acknowledges that Seller is not making any representations or warranties with
respect to the treatment of the Transaction under any accounting standards including FASB Statements 128, 133, 149 (each as amended), or 150, EITF Issue No. 00-19, 01-6, 03-6 or 07-5 (or any successor issue statements) or under FASB’s
Liabilities & Equity Project. 
 (x) Authorization and Disclosure. Upon Seller’s request, Buyer shall
deliver to Seller a resolution of Buyer’s board of directors authorizing the Transaction and such other certificate or certificates as Seller shall reasonably request. Buyer has publicly disclosed on November 6, 2014 its intention to
institute a program for the acquisition of Shares. 
 (xi) [Reserved.] 

(xii) Rule 10b-18 purchases. Buyer represents and warrants to Seller that neither it nor any “affiliated
purchaser” (as defined in Rule 10b-18 under the Exchange Act) has made any purchases of blocks pursuant to the proviso in Rule 10b-18(b)(4) under the Exchange Act during either (i) the four full calendar weeks immediately preceding the
Trade Date or (ii) during the calendar week in which the Trade Date occurs. 
  

	(b)	Rule 10b5-1. 

 (i)
Buyer intends the Transaction to comply with the requirements of Rule 10b5-1(c) under the Exchange Act. Buyer represents that it is entering into the Transaction in good faith and not as part of a plan or scheme to evade the antifraud or
anti-manipulation provisions of the federal or applicable state securities laws and that it has not entered into or altered any hedging transaction relating to the Shares corresponding to or offsetting the Transaction. Buyer represents and warrants
that it has consulted with its own advisors as to the legal aspects of its adoption and implementation of the Transaction under Rule 10b5-1 under the Exchange Act. 
 (ii) Buyer shall not, at any time during any Averaging Period, Settlement Valuation Period or Seller Termination Purchase Period, communicate, directly or indirectly, any material nonpublic information
concerning itself or the Shares or purchases or sales of Shares by Seller (or its agent or affiliate) to any 

  
 12 









 
Relevant Bank Personnel. “Relevant Bank Personnel” means any employees or agents of Seller or any affiliate of Seller that Seller has notified Buyer in writing are “Relevant
Bank Personnel”; provided that Wells Fargo may amend the list of Relevant Bank Personnel at any time by delivering a revised list to Counterparty. “Relevant Bank Personnel” shall initially mean any personnel of the equity derivatives
trading group of Seller or its affiliates who are responsible for, or have the ability to influence, the execution of this Transaction and of Wells Fargo’s hedge in relation thereto. 

(iii) Buyer agrees that Buyer shall not enter into or alter any hedging transaction relating to the Shares corresponding to or offsetting
the Transaction. Buyer also acknowledges and agrees that any amendment, modification, waiver or termination of this Confirmation must be effected in accordance with the requirements for the amendment or termination of a “plan” as
defined in Rule 10b5-1(c) under the Exchange Act. Without limiting the generality of the foregoing, any such amendment, modification, waiver or termination shall be made in good faith and not as part of a plan or scheme to evade the prohibitions of
Rule 10b-5, and no such amendment, modification, waiver or termination shall be made at any time at which Buyer or any officer, director, manager or similar person of Buyer is aware of any material non-public information regarding Buyer or the
Shares. 
 (iv) Buyer acknowledges and agrees that it does not have, and shall not attempt to exercise, any influence over how,
when or whether Seller effects any purchases of Shares in connection with the Transaction. 
  

	(c)	U.S. Private Placement and Other Representations. 

 Each party acknowledges that the offer and sale of the Transaction to it is intended to be exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”).
Accordingly, each party hereby represents and warrants to the other party as of the date hereof that: 
 (i) It is an
“accredited investor” (as defined in Regulation D under the Securities Act) and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the Transaction, and it is able to
bear the economic risk of the Transaction. 
 (ii) It is entering into the Transaction for its own account and not with a view to
the distribution or resale of the Transaction or its rights thereunder except pursuant to a registration statement declared effective under, or an exemption from the registration requirements of, the Securities Act. 

(iii) It is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation and, if relevant
under such laws, in good standing. 
 (iv) It has the power to execute this Confirmation and any other documentation relating to
this Confirmation to which it is a party, to deliver this Confirmation and any other documentation relating to this Confirmation that it is required by this Confirmation to deliver and to perform its obligations under this Confirmation and has taken
all necessary action to authorize such execution, delivery and performance. 
 (v) Such execution, delivery and performance do
not violate or conflict with any law applicable to it, any provision of its constitutional documents, any order or judgment of any court or other agency of government applicable to it or any of its assets or any contractual restriction binding on or
affecting it or any of its assets. 
 (vi) It is an “eligible contract participant,” as defined under the Commodity
Exchange Act (7 U.S.C. § 1a(18)) and CFTC regulations (17 CFR § 1.3). 
  

	(d)	 Securities Contract; Swap Agreement. The parties hereto agree and acknowledge that Seller is a “financial participant” within
the meaning of Sections 101(22), 101(53C) and 101(22A) of the Bankruptcy Code. The parties hereto further agree and acknowledge that this Transaction is (i) a “securities contract” as such term is defined in Section 741(7) of the
Bankruptcy Code, in which case each payment and delivery made pursuant to this Transaction is a “termination value,” “payment amount” or “other transfer obligation”




  
 13 










	 	
within the meaning of Section 362 of the Bankruptcy Code and a “settlement payment,” within the meaning of Section 546 of the Bankruptcy Code and (ii) a “swap
agreement,” as such term is defined in Section 101(53B) of the Bankruptcy Code, with respect to which each payment and delivery hereunder or in connection herewith is a “termination value,” “payment amount” or
“other transfer obligation” within the meaning of Section 362 of the Bankruptcy Code and a “transfer,” as such term is defined in Section 101(54) of the Bankruptcy Code and a “payment or other transfer of
property” within the meaning of Sections 362 and 546 of the Bankruptcy Code, and that Seller is entitled to the protections afforded by, among other sections, Sections 362(b)(6), 362(b)(17), 362(o), 546(e), 546(g), 548(d)(2), 555, 560 and 561
of the Bankruptcy Code. 

  

	(e)	Bankruptcy Status. Wells Fargo acknowledges and agrees that this Confirmation is not intended to convey to it rights with respect to the transactions
contemplated hereby that are senior to the claims of Counterparty’s common stockholders in the event of Counterparty’s bankruptcy; provided, however, that [nothing herein shall be deemed to limit Wells Fargo’s right to
pursue remedies in the event of a breach by Counterparty of its obligations and agreements with respect to this Confirmation and the Agreement; and provided, further, that] nothing herein shall limit or shall be deemed to limit Wells
Fargo’s rights in respect of any transaction other than this Transaction. 

  

	(f)	No Collateral or Setoff. Notwithstanding any provision of this Confirmation, the Agreement, or any other agreement between the parties to the contrary,
the obligations of Counterparty under this Transaction are not secured by any collateral. Wells Fargo agrees not to set off or net amounts due from Counterparty with respect to this Transaction against amounts due from Wells Fargo to Counterparty
under obligations other than Equity Contracts. “Equity Contract” means any transaction relating to Shares between the parties (or any of their affiliates) that qualifies as ‘equity’ under applicable accounting rules.


  

	(g)	Additional Termination Event. Notwithstanding any other provision hereof, an “Additional Termination Event” shall occur and Counterparty shall
be the sole Affected Party pursuant to such Additional Termination Event if: (i) at any time on or prior to the Valuation Date, the price per Share on the Exchange, as determined by the Calculation Agent, is at or below the Threshold Price as
specified in Appendix A; or (ii) Counterparty declares an Excess Dividend with an ex-dividend date which occurs or is scheduled to occur during the Relevant Dividend Period. For the avoidance of doubt, such Excess Dividend shall not constitute
a Potential Adjustment Event. 

  

	(h)	Maximum Number of Shares. Notwithstanding any provisions of this Confirmation, the Agreement or the Equity Definitions to the contrary, in no event shall
the aggregate number of Shares that Counterparty shall be obligated to deliver in connection with this Transaction exceed 1,870,907 Shares, as such number may be proportionately adjusted by the Calculation Agent to reflect stock splits or similar
events. 

  

	(i)	Agreements to Deliver Documents. Each of Buyer and Seller will deliver to the other party, upon execution of this Confirmation, evidence reasonably
satisfactory to the other party as to the names, true signatures and authority of the officers or officials signing this Confirmation on its behalf. Such documents shall be covered by the representation set forth in Section 3(d) of the
Agreement. In addition, Buyer agrees to complete (accurately and in a manner reasonably satisfactory to the other party), execute, and deliver to Seller, United States Internal Revenue Service Form W-8 or Form W-9, as applicable, or any successor of
such form, (i) upon execution of this Confirmation, (ii) promptly upon reasonable demand by Seller, and (iii) promptly upon learning that any such form previously provided by it has become obsolete or incorrect.


  

	(j)	Indemnity. Buyer shall indemnify and hold harmless Seller and any of its affiliates, directors, officers, employees, partners, controlling entities or
agents (each, an “Indemnified Party”) from and against any and all claims, losses, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating
any such action or claim) (“Losses”) joint and several arising out of or attributable to Buyer’s breach of its representations, warranties or agreements hereunder, except to the extent that such claim, loss, damage, liability
or expense is found in a final non-appealable judgment by a court of competent jurisdiction to have resulted from the gross negligence or bad faith of any Indemnified Party. This indemnity agreement shall be in addition to any liability that Buyer
otherwise may have. The provisions of this paragraph shall survive the termination of this Confirmation. 


  
 14 










	(k)	Counterparty Purchases. Without the prior written consent of Wells Fargo, Counterparty shall not, and shall cause its “affiliates” and
“affiliated purchasers” (each as defined in Rule 10b-18) not to, directly or indirectly (including, without limitation, by means of a derivative) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or
commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable for Shares during the
Averaging Period, Settlement Valuation Period or Seller Termination Purchase Period. During such time, any purchases of Shares (or any security convertible into or exchangeable for Shares) by Counterparty shall be made through Wells Fargo
Securities, LLC, which is an affiliate of Wells Fargo. Notwithstanding the foregoing provision, nothing in this Confirmation shall limit (i) the ability of the Counterparty, pursuant to its incentive compensation plans, to reacquire Shares from
its employees or directors in connection with the related equity transactions or to withhold Shares to cover tax liabilities associated with such equity transactions, or (ii) the ability of any “affiliates” or “affiliated
purchasers” of Counterparty to purchase any Shares from the Counterparty pursuant to the Counterparty’s employee stock purchase plan or any other incentive compensation plan. Further, these provisions shall not restrict any purchase by
Counterparty or its affiliates and affiliated purchasers effected during any suspension of the Averaging Period. 

  

	(l)	Merger-related Transactions. During the Averaging Period, Settlement Valuation Period and Seller Termination Purchase Period, as applicable, Counterparty
shall (i) notify Wells Fargo prior to the opening of trading in the Shares on any day on which Counterparty makes, or expects to be made, any public announcement (as defined in Rule 165(f) under the Securities Act) of any merger, acquisition,
or similar transaction involving a recapitalization relating to Counterparty (other than any such transaction in which the consideration consists solely of cash and there is no valuation period), (ii) promptly notify Wells Fargo following any
such announcement that such announcement has been made, and (iii) promptly deliver to Wells Fargo following the making of any such announcement a certificate indicating (A) Counterparty’s average daily Rule 10b-18 purchases (as
defined in Rule 10b-18) during the three full calendar months preceding the date of the announcement of such transaction and (B) Counterparty’s block purchases (as defined in Rule 10b-18) effected pursuant to paragraph (b)(4) of Rule
10b-18 during the three full calendar months preceding the date of the announcement of such transaction. In addition, Counterparty shall promptly notify Wells Fargo of the earlier to occur of the completion of such transaction and the completion of
the vote by target shareholders. Counterparty acknowledges that any such public announcement may cause the terms of the Transaction to be adjusted or terminated. Accordingly, Counterparty acknowledges that its actions in relation to any such
announcement or transaction must comply with the standards set forth in Section 6(b)(ii) above. Wells Fargo in a commercially reasonable manner may (i) make adjustments to the terms of the Transaction, including, without limitation, the
Price Adjustment and/or suspend the Averaging Period to preserve the economics of the transaction or (ii) treat the occurrence of such public announcement as an Additional Termination Event with Counterparty as the sole Affected Party and the
Transaction hereunder as the Affected Transaction and with the amount under Section 6(e) of the Agreement determined taking into account the fact that the Averaging Period, as the case may be, had fewer Scheduled Trading Days than originally
anticipated. 

  

	(m)	Acknowledgments and Agreements Regarding Hedging. Counterparty acknowledges and agrees that (i) during the Averaging Period, Wells Fargo and its
affiliates may (x) 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 and (y) be
active in the market for Shares other than in connection with hedging activities in relation to the Transaction, (ii) Wells Fargo shall make its own determination as to whether, when or in what manner any hedging or market activities in
Counterparty’s securities 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 Price and/or the VWAP Price and (iii) any market activities of Wells Fargo
and its affiliates with respect to Shares may affect the market price and volatility of Shares, as well as the Settlement Price and/or the VWAP Price, each in a manner that may be adverse to Counterparty. Wells Fargo agrees with respect to all
purchases of Shares made by Wells Fargo during the Averaging Period that it will conduct its purchases in a manner that would not be deemed to constitute a tender offer within the meaning of Rule 14(d)(1) of the Exchange Act. Wells Fargo represents
and warrants that it has implemented reasonable policies and procedures, taking into consideration the nature of Wells Fargo’s business to ensure that individuals making investment decisions would not violate laws prohibiting trading on the
basis of material non-public information. 


  
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	7.	Seller Adjustments.  

 In the event that Seller reasonably determines, in good faith and based on the advice of counsel, that it is appropriate with regard to 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 Seller, and including, without limitation, Rule 10b-18, Rule 10b-5, Regulation 13D-G and Regulation 14E,
“Requirements”), to refrain from purchasing Shares or to purchase fewer than the number of Shares than would otherwise be expected to be purchased in a commercially reasonable manner on any Trading Day during the duration of this
Transaction, then Seller may, in its commercially reasonable discretion, elect that Averaging Period be suspended and, if appropriate, extended with regard to any Requirements. Seller shall notify the Issuer upon the exercise of Seller’s rights
pursuant to this Section 7 and shall subsequently notify the Issuer on the day Seller believes that the circumstances giving rise to such exercise have changed. If the Averaging Period is suspended pursuant to this Section 7, at the end of
such suspension Seller shall determine the number of Scheduled Trading Days remaining in the Averaging Period, as appropriate, and the terms of this Transaction shall be adjusted by the Calculation Agent. All determinations by Seller shall be made
in good faith and a commercially reasonable manner and assuming the Seller maintains a commercially reasonable hedge position. 
  

	8.	Special Provisions regarding Acquisition Transaction Announcements. 

 (a) If an Acquisition Transaction Announcement occurs on or prior to the Settlement Date, then the Calculation Agent shall make such adjustments to the exercise, settlement, payment or any other terms of
the Transaction (including, without limitation, the Number of Shares to be Delivered and the Price Adjustment) as the Calculation Agent determines appropriate, at such time or at multiple times as the Calculation Agent determines appropriate, to
account for the economic effect on such Transaction of such Acquisition Transaction Announcement (provided that adjustments will be made to account solely for changes in price, volatility, stock loan rate and liquidity relevant to the Shares, to the
Transaction or to commercially reasonable hedge positions in respect of the Transaction). If an Acquisition Transaction Announcement occurs after the Trade Date, but prior to the Scheduled Earliest Acceleration Date, the Scheduled Earliest
Acceleration Date shall be the date of such Acquisition Transaction Announcement. 
 (b) “Acquisition Transaction
Announcement” means (i) the announcement of an Acquisition Transaction or an event that, if consummated, would result in an Acquisition Transaction, (ii) an announcement that Buyer or any of its subsidiaries has entered into an
agreement, a letter of intent or an understanding designed to result in an Acquisition Transaction, (iii) the announcement of the intention to solicit or enter into, or to explore strategic alternatives or other similar undertaking that may
include, an Acquisition Transaction, (iv) any other announcement that in the reasonable judgment of the Calculation Agent may result in an Acquisition Transaction, or (v) any announcement of any change or amendment to any previous
Acquisition Transaction Announcement (including any announcement of the abandonment of any such previously announced Acquisition Transaction, agreement, letter of intent, understanding or intention). For the avoidance of doubt, announcements as used
in the definition of Acquisition Transaction Announcement refer to any public announcement whether made by the Buyer or a third party. 
 (c) “Acquisition Transaction” means (i) any Merger Event (for purposes of this definition the definition of Merger Event shall be read with the references therein to “100%”
being replaced by “15%” and to “50%” by “75%” and without reference to the clause beginning immediately following the definition of Reverse Merger therein to the end of such definition), Tender Offer or Merger
Transaction or any other transaction involving the merger of Buyer with or into any third party, (ii) the sale or transfer of all or substantially all of the assets of Buyer, (iii) a recapitalization, reclassification, binding share
exchange or other similar transaction with respect to Buyer, (iv) any acquisition by Counterparty or any of its subsidiaries where the aggregate consideration transferable by Counterparty or its subsidiaries exceeds 50% of the market
capitalization of Counterparty, (v) any acquisition, lease, exchange, transfer, disposition (including by way of spin-off or distribution) of assets (including any capital stock or other ownership interests in subsidiaries) or


  
 16 









 
other similar event by Buyer or any of its subsidiaries where the aggregate consideration transferable or receivable by or to Buyer or its subsidiaries exceeds 15% of the market capitalization of
Buyer and (vi) any transaction in which Buyer or its board of directors has a legal obligation to make a recommendation to its shareholders in respect of such transaction (whether pursuant to Rule 14e-2 under the Exchange Act or otherwise).

  

	9.	Staggered Settlement.  

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

	10.	Transfer and Assignment. 

 Notwithstanding anything to the contrary in the Agreement, Wells Fargo may assign, transfer and set over all its rights, title and interest, powers, privileges and remedies under any Transaction, in whole
or in part, to an affiliate of Wells Fargo, with the prior written consent of Counterparty. 
 At any time at which the Equity
Percentage exceeds 7.5% (an “Excess Ownership Position”) or a Hedging Disruption has occurred and is continuing, if Wells Fargo, in its discretion, is unable to effect a transfer or assignment to a third party after using its
commercially reasonable efforts on pricing terms and within a time period reasonably acceptable to Wells Fargo such that an Excess Ownership Position or a Hedging Disruption, as the case may be, no longer exists, Wells Fargo may designate any
Scheduled Trading Day as an Early Termination Date with respect to a portion (the “Terminated Portion”) of the Transaction, such that such Excess Ownership Position or Hedging Disruption, as the case may be, no longer exists. In the
event that Wells Fargo so designates an Early Termination Date with respect to a portion of the Transaction, a payment or delivery shall be made pursuant to Section 6 of the Agreement and Section 2 of this Confirmation as if (i) an
Early Termination Date had been designated in respect of a Transaction having terms identical to the Terminated Portion of the Transaction, (ii) Counterparty shall be the sole Affected Party with respect to such partial termination and
(iii) such portion of the Transaction shall be the only Terminated Transaction. The “Equity Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that
Wells Fargo and any of its affiliates or any other person subject to aggregation with Wells Fargo, 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 Wells Fargo is or may be deemed to be a part, beneficially owns (within the meaning of Section 13 of the Exchange Act) on such day and (B) the denominator of which is the number of Shares
outstanding on such day. 
  

	11.	Registration Provisions. 

 Counterparty hereby agrees that if, in the good faith and commercially reasonable judgment of Wells Fargo, any Shares acquired by Wells Fargo for the purpose of hedging its obligations pursuant to the
Transaction or otherwise delivered by the Counterparty to Wells Fargo for any reason hereunder cannot be sold in the public market by Wells Fargo without registration under the Securities Act, Counterparty shall, at its election: (i) in order
to allow Wells Fargo to sell such Shares in a registered offering, make available to Wells Fargo an effective registration statement under the Securities Act to cover the resale of such Shares and (A) enter into an agreement, in form and
substance satisfactory to Wells Fargo, substantially in the form of an underwriting agreement for a registered offering of similar size, (B) provide accountant’s “comfort” letters in customary form for registered offerings of
equity securities of similar size, (C) provide disclosure opinions of nationally recognized outside counsel to Counterparty reasonably acceptable to Wells Fargo, (D) provide other customary opinions, certificates and closing documents
customary in form for registered offerings of equity securities of similar size and (E) afford Wells Fargo a reasonable opportunity to conduct a “due diligence” investigation with respect to Counterparty customary in scope for
underwritten offerings of equity securities of similar size; provided that if Wells Fargo, in its commercially reasonable discretion, is not satisfied with 

  
 17 









 
access to due diligence materials, the results of its due diligence investigation, or the procedures and documentation for the registered offering referred to above, then clause (ii) or
clause (iii) of this Section 11 shall apply at the election of Counterparty; (ii) in order to allow Wells Fargo to sell such Shares in a private placement, enter into a private placement agreement substantially similar to private
placement purchase agreements customary for private placements of equity securities of similar size, in form and substance satisfactory to Wells Fargo, including customary representations, covenants, blue sky and other governmental filings and/or
registrations, indemnities to Wells Fargo, due diligence rights (for Wells Fargo or any designated buyer or buyers of the Shares from Wells Fargo), opinions and certificates and such other documentation as is customary for private placements
agreements, all commercially reasonably acceptable to Wells Fargo (in which case, the Calculation Agent shall make any adjustments to the terms of the Transaction that are necessary, using commercially reasonable judgment, to compensate Wells Fargo
for any discount from the public market price of the Shares incurred on the sale of such Shares in a private placement); or (iii) purchase the Shares from Wells Fargo at the Volume Weighted Average Price on such Exchange Business Days, and in
the amounts, requested by Wells Fargo. “Volume Weighted Average Price” means, on any Exchange Business Day, the per Share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page SRDX
<equity> VAP (or any successor thereto) in respect of the period from 9:30 a.m. to 4:00 p.m. (New York City time) on such Exchange Business Day (or if such volume-weighted average price is unavailable, the market value of one Share on such
Exchange Business Day, as determined by the Calculation Agent using a volume-weighted method). 
  

	12.	Non-Confidentiality. Seller and Buyer hereby acknowledge and agree that, subject to Section 6(b)(ii) above, each is authorized to disclose every
aspect of this Confirmation and the transactions contemplated hereby to any and all persons, without limitation of any kind, and there are no express or implied agreements, arrangements or understandings to the contrary. 


 

	13.	Counterparts. 


This Confirmation may be executed in any number of counterparts, all of which shall constitute one and the same instrument, and any party
hereto may execute this Confirmation by signing and delivering one or more counterparts. 
  

	14.	Waiver of Trial by Jury. 

 EACH PARTY HEREBY IRREVOCABLY WAIVES (ON ITS OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS STOCKHOLDERS) ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE TRANSACTION OR THE ACTIONS OF WELLS FARGO, THE AGENT OR THEIR AFFILIATES IN THE NEGOTIATION, PERFORMANCE OR ENFORCEMENT HEREOF. 

 

	15.	Adjustments 

 For
the avoidance of doubt, whenever the Seller, Calculation Agent, Wells Fargo or Determining Party are called upon to make an adjustment or determination pursuant to the terms of this Confirmation or the Definitions to take into account the effect of
an event, the Seller, Calculation Agent and Determining shall make such adjustment or determination by reference to the effect of such event on the Hedging Party, assuming that the Hedging Party maintains a commercially reasonable Hedge Position at
the time of the event. 
  

	16.	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 words “an”; and adding the phrase
“or such Transaction” at the end of the sentence. 

  
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 (b) Section 11.2(c) of the Equity Definitions is hereby amended by (i) replacing
the words “a diluting or concentrative” with “an” in the fifth line thereof, (ii) adding the phrase “or such Transaction” after the words “the relevant Shares” in the same sentence, (iii) deleting
the words “dilutive or concentrative” in the sixth to last line thereof, and (iv) 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 the relevant Transaction” at the end of the sentence. 

(d) Section 12.9(b)(iv) of the Equity Definitions is hereby amended by: 

(i) 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 
 (ii) 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. 
 (e) Section 12.9(b)(v) of the Equity Definitions is hereby amended by: 
 (i)
adding the word “or” immediately before subsection “(B)” and deleting the comma at the end of subsection (A); and 
 (ii) (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. 

  
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 Please confirm that the foregoing correctly sets forth the terms of our agreement by executing a copy of
this Confirmation and returning it to Wells Fargo’s Structured Derivatives Documentation Unit, Facsimile No. (212) 214-5913. 
  

									
	WELLS FARGO BANK, NATIONAL ASSOCIATION	 		 	SURMODICS, INC.
					
	By:	 	 /s/ Thomas Yates
	 		 	By:	 	 /s/ Andrew D. C. LaFrence

		 	Name: Thomas Yates	 		 		 	Name: Andrew D. C. LaFrence
		 	Title: Managing Director	 		 		 	Title: VP, Finance and CFO


  
 20 









 Appendix A 
  

			
	Initial Shares:	  	758,143 Shares; provided that if Wells Fargo is unable to borrow or otherwise acquire a number of Shares equal to the Initial Shares for delivery to Counterparty on the
Initial Share Delivery Date, the Initial Shares delivered on the Initial Share Delivery Date shall be reduced to such number of Shares that Seller is able to so borrow or otherwise acquire.
		
	Prepayment Amount:	  	USD 20,000,000
		
	Threshold Price:	  	USD [    ]
		
	Valuation Date:	  	[    ] (or if such date is not an Exchange Business Day, the next following Exchange Business Day), provided that Seller shall have the right in its
absolute discretion, to accelerate the Valuation Date to any date that is on or after [    ] (or if such date is not an Exchange Business Day, the next following Exchange Business Day) (such date, the “Scheduled Earliest
Acceleration Date”), by giving notice prior to 8:00 pm New York City time on the Scheduled Trading Day following such date.
		
	Averaging Dates:	  	For the Valuation Date, each Scheduled Trading Day starting on the first Scheduled Trading Day following the Trade Date and ending on, and including, such Valuation
Date.
		
	Price Adjustment:	  	[    ]
		
	Ordinary Dividend Amount:	  	[    ]


  
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