masterconfirmation-uncol






    Jefferies LLC  520 Madison Avenue  New York, NY 10022  Tel: 212.284.2300  Jefferies.com    Execution Version  MASTER CONFIRMATION  ACCELERATED SHARE REPURCHASE TRANSACTIONS  Date: May 3, 2022  To: BlueLinx Holdings Inc.   1950 Spectrum Circle, Suite 300   Marietta, GA 30067  Re:  Accelerated Share Repurchase Transactions  Ladies and Gentleman:  This master confirmation (this “Master Confirmation”), dated as of May 3, 2022, sets forth certain terms  and conditions of certain Transactions (each, a “Transaction”) that Jefferies LLC (“Jefferies”), will enter into with  BlueLinx Holdings Inc. (“Counterparty”).  Each Transaction will have terms contained in this Master Confirmation and terms not contained in this  Master Confirmation.  In particular, any Transaction entered into under this Master Confirmation will be subject to  the additional terms set forth in a transaction confirmation in the form attached hereto as Schedule A, which transaction  confirmation will reference this Master Confirmation and supplement, form a part of, and be subject to this Master  Confirmation (each such transaction confirmation, a “Transaction Confirmation”).  For any Transaction, this Master  Confirmation and the Transaction Confirmation for such Transaction together will constitute a “Confirmation” as  referred to in the Agreement specified below.  Taken alone, this Master Confirmation is neither a commitment by  either party to enter into any Transaction nor evidence of any Transaction.  This Master Confirmation 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.  For each Transaction, this Master Confirmation and the Transaction Confirmation for such  Transaction evidence a complete binding agreement between Counterparty and Jefferies with respect to the subject  matter and terms of such Transaction and shall supersede all prior or contemporaneous written or oral communications  with respect thereto.  This Master Confirmation and the Transaction Confirmation for each Transaction each supplement, form a  part of, and are subject to, an agreement in the form of the ISDA 2002 Master Agreement (the “Agreement”) as if  Jefferies and Counterparty had executed the Agreement on the date of this Master Confirmation (but without any  Schedule except for (i) the election of New York law (without reference to its choice of laws doctrine other than Title  14 of Article 5 of the New York General Obligations Law) as the governing law and US Dollars (“USD”) as the  Termination Currency, and (ii) the election that the “Cross Default” provisions of Section 5(a)(vi) shall apply to  Jefferies and Counterparty, with a “Threshold Amount” in respect of Jefferies of 3% of the members’ equity of  Jefferies and a “Threshold Amount” in respect of Counterparty of USD 50.0 million (provided that (a) the phrase “or  becoming capable at such time of being declared” shall be deleted from clause (1) of such Section 5(a)(vi) of the  Agreement and (b) the following sentence shall be added to the end thereof: “Notwithstanding the foregoing, a default  under subsection (2) hereof shall not constitute an Event of Default if (i) the default was caused solely by error or  omission of an administrative or operational nature; (ii) funds were available to enable the party to make the payment  when due; and (iii) the payment is made within one Local Business Day of such party’s receipt of written notice of its  failure to pay.”.  





 






2  The Transactions shall be the sole Transactions under the Agreement.  If there exists any ISDA Master  Agreement between Jefferies and Counterparty or any confirmation or other agreement between Jefferies and  Counterparty pursuant to which an ISDA Master Agreement is deemed to exist between Jefferies and Counterparty,  then notwithstanding anything to the contrary in such ISDA Master Agreement, such confirmation or agreement or  any other agreement to which Jefferies and Counterparty are parties, the Transactions shall not be considered  Transactions under, or otherwise governed by, such existing or deemed ISDA Master Agreement.  All provisions contained or incorporated by reference in the Agreement shall govern this Master  Confirmation and each Transaction Confirmation, except as expressly modified herein or in the related Transaction  Confirmation.  If, in relation to any Transaction to which this Master Confirmation and a Transaction Confirmation relate,  there is any inconsistency between the Agreement, this Master Confirmation, such Transaction Confirmation and the  Equity Definitions, the following will prevail for purposes of such Transaction in the order of precedence indicated:  (i) such Transaction Confirmation; (ii) this Master Confirmation; (iii) the Equity Definitions; and (iv) the Agreement.  Each Transaction constitutes a Share Forward Transaction for purposes of the Equity Definitions.  Set forth  below are the terms and conditions that, together with the terms and conditions set forth in the Transaction  Confirmation relating to such Transaction, shall govern any Transaction.  1. General Terms:  Trade Date: For any Transaction, the date set forth as such in the Transaction Confirmation  for such Transaction.  Buyer: Counterparty  Seller: Jefferies  Shares: The common stock of Counterparty, par value USD 0.01 per share  (Symbol: BXC)  Exchange: The New York Stock Exchange  Related Exchange(s): All Exchanges  Prepayment: Applicable  Variable Obligation: Applicable  Prepayment Amount: For any Transaction, the amount set forth as such in the Transaction Confirmation  for such Transaction.  Prepayment Date: For any Transaction, the date set forth as such in the Transaction Confirmation  for such Transaction.  Calculation Agent: Jefferies  Valuation Terms:  10b-18 VWAP Price: Subject to the provisions of “Valuation Disruption” below, for any Scheduled  Trading Day, as determined by the Calculation Agent based on the 10b-18  Volume Weighted Average Price per Share for the regular trading session  (including any extensions thereof) of the Exchange on such Scheduled Trading  Day (without regard to pre-open or after hours trading outside of such regular  trading session for such Scheduled Trading Day), as published by Bloomberg at  4:15 p.m., New York time (or 15 minutes following the end of any extension of  the regular trading session), on such Scheduled Trading Day, on Bloomberg page  





 






3  “BXC <Equity> AQR_SEC” (or any successor thereto), or if such price (a) is not  reported on such Bloomberg page or successor page on such Scheduled Trading  Day or (b) is, in the Calculation Agent’s reasonable discretion, erroneous, the  price reasonably determined by the Calculation Agent to substitute for such  unreported or erroneous price, which price the Calculation Agent will base on  only those trades that are (i) reported on the Exchange during the period of time  during which Counterparty could have purchased Shares on the Exchange on such  Scheduled Trading Day pursuant to Rule 10b-18(b)(2) under the Securities  Exchange Act of 1934, as amended (the “Exchange Act”) and (ii) effected such  purchases pursuant to the conditions of Rule 10b-18(b)(3) under the Exchange  Act (such trades, “Rule 10b-18 Eligible Transactions”).  Forward Price: For any Transaction, the arithmetic average of the 10b-18 VWAP Prices with  respect to all Exchange Business Days in the Valuation Period for such  Transaction, subject to “Valuation Disruption” below.  Forward Price Discount: For any Transaction, the amount set forth as such in the Transaction Confirmation  for such Transaction.  Valuation Period: For any Transaction, the period from, and including, the Valuation Period Start  Date for such Transaction, to, and including, the Valuation Date for such  Transaction.  Valuation Period Start Date: For any Transaction, the date set forth as such in the Transaction Confirmation  for such Transaction.  Valuation Date: For any Transaction, the Scheduled Valuation Date for such Transaction;  provided that Jefferies may, in its sole discretion, designate any Scheduled  Trading Day during the period beginning on, and including, the First Acceleration  Date for such Transaction, and ending on, and excluding, the Scheduled Valuation  Date for such Transaction, in whole or in part, to be a Valuation Date by delivering  notice to Counterparty of the occurrence of such Valuation Date on or before  11:59 p.m., New York time on the second Exchange Business Day immediately  following such Scheduled Trading Day (the “Acceleration Date”) and specifying  the portion of the Prepayment Amount that is subject to acceleration (which  amount shall not be less than 20% of the Prepayment Amount as of the  Prepayment Date (or, if less, the remainder of the Prepayment Amount for which  a notice of acceleration has yet to be delivered)).  If the portion of the Prepayment  Amount that is subject to acceleration is less than the full remaining Prepayment  Amount, then the Calculation Agent shall make such mechanical or administrative  adjustments to the terms of such Transaction as appropriate in order to take into  account the occurrence of such Acceleration Date (including cumulative  adjustments to take into account all prior Acceleration Dates).   Scheduled Valuation Date: For any Transaction, the date set forth as such in the Transaction Confirmation  for such Transaction, subject to postponement as provided in “Valuation  Disruption” below.  First Acceleration Date: For any Transaction, the date set forth as such in the Transaction Confirmation  for such Transaction.  Valuation Disruption: Notwithstanding anything to the contrary in the Equity Definitions or in this  Master Confirmation:   (a) whenever any Scheduled Trading Day during the Valuation Period for any  Transaction is a Disrupted Day, the Calculation Agent may, in its good faith and  





 






4  commercially reasonable discretion, postpone the Scheduled Valuation Date for  such Transaction by one Scheduled Trading Day;   (b) whenever any Scheduled Trading Day during the Settlement Valuation Period,  if any, for any Transaction is a Disrupted Day, the Calculation Agent may, in its  good faith and commercially reasonable discretion, postpone the expected final  Scheduled Trading Day of such Settlement Valuation Period by one Scheduled  Trading Day; and   (c) whenever at least nine consecutive Scheduled Trading Days during the  Valuation Period or the Settlement Valuation Period, as the case may be, for any  Transaction have been Disrupted Days, the Calculation Agent, in its good faith  and commercially reasonable discretion, may deem such ninth Scheduled Trading  Day that is a Disrupted Day not to be a Disrupted Day (any such Disrupted Day,  a “Deemed Trading Day”), in which case the Calculation Agent will not  postpone the Scheduled Valuation Date or the expected final Scheduled Trading  Day of such Settlement Valuation Period pursuant to clause (i) or (ii) above, as  the case may be, for such Deemed Trading Day.   Whenever any Scheduled Trading Day during the Valuation Period or the  Settlement Valuation Period for any Transaction is a Deemed Trading Day, the  Calculation Agent will, in a good faith and commercially reasonable manner,  calculate the 10b-18 VWAP Price for such Deemed Trading Day as its estimate  of the value of the Shares on such Deemed Trading Day, which estimate may be  based on, among other factors, historical trading patterns in the Shares, the volume  of Shares traded on such Deemed Trading Day and the price of the Shares, if any,  on the Exchange on such Deemed Trading Day, and such estimate will be the 10b- 18 VWAP Price for such Deemed Trading Day.   Notwithstanding anything to the contrary in the Equity Definitions or in this  Master Confirmation, if a Market Disruption Event (or a deemed Market  Disruption Event as provided herein) occurred on any such Disrupted Day during  the Valuation Period or the Settlement Valuation Period, but such Disrupted Day  is not a Deemed Trading Day, the Calculation Agent shall determine in a good  faith and commercially reasonable manner whether (i) such Disrupted Day is a  Disrupted Day in full, in which case the 10b-18 VWAP Price for such Disrupted  Day shall not be included for purposes of determining the Forward Price or the  Settlement Price, as the case may be, or (ii) such Disrupted Day is a Disrupted  Day only in part, in which case the Calculation Agent will, in a good faith and  commercially reasonable manner, determine (A) the 10b-18 VWAP Price for such  Disrupted Day based on the Rule 10b-18 Eligible Transactions in the Shares  effected on such Disrupted Day before the relevant Market Disruption Event  occurred and/or after the relevant Market Disruption Event ended, and (B) the  Forward Price or the Settlement Price, as the case may be, based on adjusted  weightings that account for such partially Disrupted Day, which adjusted  weightings may, for the avoidance of doubt, deviate from the weightings that the  Calculation Agent would use to compute an arithmetic average and/or account for  the duration of any relevant Market Disruption Event during such Disrupted Day,  historical trading patterns in the Shares, the prices of the Shares on such Disrupted  Day and/or otherwise.   Any Scheduled Trading Day on which, as of the date hereof, the Exchange is  scheduled to close prior to its normal close of trading shall be deemed not to be a  Scheduled Trading Day; if a closure of the Exchange prior to its normal close of  trading on any Scheduled Trading Day is scheduled following the date hereof, but  prior to the open of the regular trading session of the Exchange on such day, then  such Scheduled Trading Day shall be deemed to be a Disrupted Day in full.  





 






5  Market Disruption Event: The definition of “Market Disruption Event” contained in Section 6.3(a) of the  Equity Definitions is hereby amended by:   (i) deleting 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” and inserting the words “at any  time on any Scheduled Trading Day during the Valuation Period or the Settlement  Valuation Period” after the word “material,” in the third line thereof; and   (ii) replacing the words “or (iii) an Early Closure” in the fifth line thereof with the  words “, (iii) an Early Closure or (iv) a Regulatory Disruption”.  Early Closure: The definition of “Early Closure” contained in Section 6.3(d) of the Equity  Definitions is hereby amended by deleting the remainder of the provision  following the term “Scheduled Closing Time” in the fourth line thereof.  Regulatory Disruption: Any event that Jefferies, in its good faith and reasonable discretion, upon advice  of counsel, determines makes it appropriate with regard to any legal, regulatory  or self-regulatory requirements or related policies and procedures (whether or not  such requirements, policies or procedures are imposed by law or have been  voluntarily adopted by Jefferies or its affiliates), for Jefferies to refrain from or  decrease any market activity in connection with the relevant Transaction.   Whenever a Regulatory Disruption occurs, Jefferies shall notify Counterparty of  such occurrence in writing as soon as reasonably practicable under the  circumstances; provided that Jefferies shall not be required to communicate to  Counterparty the reason for Jefferies’s exercise of its rights pursuant to this  provision if Jefferies reasonably determines in good faith, upon advice of counsel,  that disclosing such reason would be reasonably likely to result in a violation 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 Jefferies).  Settlement Terms:  Settlement Currency: USD  Physical Settlement: If the Number of Shares to be Delivered is positive, Applicable.  Additional Settlement  Provisions: To the extent that Jefferies is obligated to deliver Shares to Counterparty under  any Transaction, Jefferies does not, and shall not, make the agreement or the  representations set forth in Section 9.11 of the Equity Definitions related to the  restrictions imposed by applicable securities laws.   In addition, for the avoidance of doubt, all references to the Excess Dividend  Amount shall be deleted from Section 9.2(a)(iii) of the Equity Definitions.  Initial Shares:  Initial Share Delivery: For any Transaction, Jefferies shall deliver to Counterparty a number of Shares  equal to the Number of Initial Shares for such Transaction on the Initial Share  Delivery Date for such Transaction, in accordance with Section 9.4 of the Equity  Definitions, with such Initial Share Delivery Date deemed to be a “Settlement  Date” for purposes of such Section 9.4.   Initial Share Delivery Date: For any Transaction, the date set forth as such in the Transaction Confirmation  for such Transaction.  





 






6  Number of Initial Shares: For any Transaction, the amount set forth as such in the Transaction Confirmation  for such Transaction.  Additional Shares:  Settlement Date: For any Transaction, if the Number of Shares to be Delivered is a positive number,  the date that is one Settlement Cycle immediately following the Valuation Date  for such Transaction; provided that if Jefferies delivers notice designating the  accelerated Valuation Date pursuant to the definition thereof, the date that is one  Settlement Cycle immediately following the date Jefferies delivers such notice.   Number of Shares  to be Delivered: For any Transaction, a number of Shares equal to (i) the Prepayment Amount for  such Transaction divided by (A) the Forward Price for such Transaction minus (B)  the Forward Price Discount for such Transaction, minus (ii) the number of Shares  delivered by Jefferies to Counterparty with respect to such Transaction pursuant  to the provisions of “Initial Share Delivery”.   If the Number of Shares to be Delivered for any settlement of any Transaction is  a negative number, then the terms of the Counterparty Settlement Provisions in  Annex A shall apply.  Share Adjustments:  Method of Adjustment: Calculation Agent Adjustment; provided that the Equity Definitions shall be  amended by replacing the words “diluting or concentrative” in Sections 11.2(a),  11.2(c) of the Equity Definitions (in two instances) and 11.2(e)(vii) with the word  “material” and by adding the words “or the Transactions” after the words  “theoretical value of the relevant Shares” in Sections 11.2(a), 11.2(c) and  11.2(e)(vii); provided, further, that adjustments may be made to account for  changes in volatility, expected dividends, correlation, stock loan rate, withholding  or transfer taxes, and liquidity relative to the relevant Share or the Transactions.   Potential Adjustment Event: Notwithstanding anything to the contrary in Section 11.2(e) of the Equity  Definitions, (i) an Extraordinary Dividend shall not constitute a Potential  Adjustment Event and (ii) none of the Transactions pursuant to this Master  Confirmation nor any Permitted OMR Transaction (as defined below) shall  constitute a Potential Adjustment Event.   It shall constitute an additional Potential Adjustment Event if the Scheduled  Valuation Date for any Transaction is postponed pursuant to “Valuation  Disruption” above, in which case the Calculation Agent may, in its good faith and  commercially reasonable discretion, adjust any relevant terms of any such  Transaction as necessary to preserve as nearly as practicable the fair value of such  Transaction to Jefferies prior to such postponement.  Extraordinary Dividend: Any dividend or distribution on the Shares (other than any dividend or distribution  of the type described in Section 11.2(e)(i) or Section 11.2(e)(ii)(A) or (B) of the  Equity Definitions).  Extraordinary Events:   Consequences of Merger Events:  (a) Share-for-Share: Modified Calculation Agent Adjustment  (b) Share-for-Other: Cancellation and Payment  





 






7  (c) Share-for-Combined: Component Adjustment or Cancellation and Payment, at the election of  Jefferies.  Tender Offer: Applicable; provided, however, that the definitions of “Tender Offer”  and “Tender Offer Date” in Section 12.1 of the Equity Definitions are  each hereby amended by inserting the words “or Shares” after the words  “voting shares”.   Consequences of Tender Offers:  (a) Share-for-Share: Modified Calculation Agent Adjustment  (b) Share-for-Other: Modified Calculation Agent Adjustment  (c) Share-for-Combined: Modified Calculation Agent Adjustment  New Shares: In the definition of New Shares in Section 12.1(i) of the Equity  Definitions, (i) 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),” and (ii) the  following phrase shall be inserted at the end thereof:  “and (iii) in the  case of a Merger Event, 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”.   Nationalization,  Insolvency or Delisting: Cancellation and Payment; provided that in addition to the provisions of  Section 12.6(a)(iii) of the Equity Definitions, it shall also constitute a  Delisting if the Exchange is located in the United States and the Shares  are not immediately re-listed, re-traded or re-quoted on any of the New  York Stock Exchange, The NASDAQ Global Select Market or The  NASDAQ Global Market (or their respective successors); if the Shares  are immediately re-listed, re-traded or re-quoted on any such exchange  or quotation system, such exchange or quotation system shall be deemed  to be the Exchange and the Calculation Agent shall make adjustments it  deems necessary to the terms of the Transactions, as if Modified  Calculation Agent Adjustment were applicable to such event.  Additional Disruption Events:  (a) Change in Law:  Applicable; provided that Section 12.9(a)(ii) of the Equity Definitions is  hereby amended by (i) replacing the parenthetical beginning after the  word “regulation” in the second line thereof with 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)”,  (ii) replacing the phrase “the interpretation” in the third  line thereof with the phrase “or announcement or statement of the formal  or informal interpretation”, (iii) deleting the words “a party to such  Transaction” in the fifth line thereof and replacing them with the words  “Jefferies”, (iv) replacing the word “Shares” with “Hedge Positions” in  the sixth line thereof, (v) immediately following the word “Transaction”  in clause (X) thereof, adding the phrase “in the manner contemplated by  the Hedging Party on the Trade Date”, and (vi) adding the words “, or  holding, acquiring or disposing of Shares or any Hedge Positions relating  to,” after the word “under” in clause (Y) thereof.    





 






8  (b) Failure to Deliver: Applicable  (c) Insolvency Filing: Applicable  (d) Hedging Disruption: Applicable   (e) Increased Cost of Hedging: Applicable  (f) Loss of Stock Borrow: Applicable; provided that 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.   Maximum Stock Loan Rate: For any Transaction, the rate specified as such in the Transaction  Confirmation for such Transaction.  (g) Increased Cost of   Stock Borrow: Applicable; provided that 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), and (3) deleting clause (X) in the  final sentence.   Initial Stock Loan Rate: For any Transaction, the rate specified as such in the Transaction  Confirmation for such Transaction.   Hedging Party: For all applicable Additional Disruption Events, Jefferies    Determining Party: For all applicable Extraordinary Events and Additional Disruption Events,  Jefferies  Non-Reliance/Agreements and  Acknowledgments Regarding   Hedging Activities/ Additional  Acknowledgments Applicable  Additional Termination Events:  Additional Termination Event(s): The declaration by the Issuer of any Extraordinary Dividend, the ex- dividend date for which occurs or is scheduled to occur during the  Relevant Dividend Period, will constitute an Additional Termination  Event, with Counterparty as the sole Affected Party and all Transactions  hereunder as the Affected Transactions.   Notwithstanding anything to the contrary in Section 6 of the Agreement,  if an Automatic Termination Price is specified in the Transaction  Confirmation for any Transaction, then an Additional Termination Event  with Counterparty as the sole Affected Party and such Transaction as the  Affected Transaction will automatically occur without any notice or  action by Jefferies or Counterparty if the price of the Shares on the  Exchange at any time falls below such Automatic Termination Price, and  the Exchange Business Day on which the price of the Shares on the  Exchange at any time falls below the Automatic Termination Price will  be the “Early Termination Date” for purposes of the Agreement.  





 






9  Relevant Dividend Period: For any Transaction, the period beginning on, and including, the  Valuation Period Start Date for such Transaction to, and including, the  Relevant Dividend Period End Date for such Transaction.  Relevant Dividend Period  End Date: For any Transaction, if Annex A applies to such Transaction, the last day  of the Settlement Valuation Period applicable to such Transaction;  otherwise, the final Valuation Date for such Transaction.  Accounts, Notices and Offices:  Account Details:  Account for Payments  to Counterparty: To be provided by Counterparty.  Account for Delivery  of Shares to Counterparty: To be provided by Counterparty.  Account for Payments  To Jefferies: To be provided by Jefferies  Offices:  Counterparty’s Office for each Transaction is Marietta, Georgia  Jefferies’s Office for each Transaction is New York.  Notices:  Counterparty’s Contact Details  for Purpose of Giving Notice: BlueLinx Holdings Inc.   1950 Spectrum Circle, Suite 300   Marietta, GA 30067   Attention:  Shyam K. Reddy    Chief Legal and Sustainability Officer    Corporate Secretary   Facsimile:  (770) 221-2502   Email:  Shyam.Reddy@BlueLinxCo.com  Jefferies’s Contact Details  for Purpose of Giving Notice: Jefferies LLC  520 Madison Avenue  New York, NY 10022  Attention: General Counsel  Email: msharp@jefferies.com    with a copy to the following addresses:    CorpEqDeriv@jefferies.com  EQDERIV_MO@jefferies.com  2. Mutual representations, warranties and covenants.  In addition to the representations, warranties and  covenants in the Agreement, each party represents, warrants and covenants to the other party, that:  (a) Eligible Contract Participant.  It is an “eligible contract participant,” as defined in the U.S.  Commodity Exchange Act, as amended (the “CEA”), and is entering into such Transaction as principal (and not as  





 






10  agent or in any other capacity, fiduciary or otherwise) and not for the benefit of any third party.  In addition, each  party acknowledges that this Master Confirmation has been, and each Transaction entered into hereunder will be,  subject to individual negotiation by the parties and has not been executed or traded on a “trading facility” as defined  in the CEA.   (b) Accredited Investor.  Each party acknowledges that the offer and sale of such Transaction to it is  intended to be exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”), by virtue  of Section 4(a)(2) thereof.  Accordingly, each party represents and warrants to the other party that (i) it has the financial  ability to bear the economic risk of its investment in such Transaction and is able to bear a total loss of its investment,  (ii) it is an “accredited investor” as that term is defined under Regulation D under the Securities Act and (iii) it is  entering into such Transaction for investment and not with a view to the distribution or resale thereof in a manner that  would violate the Securities Act, and (iv) the disposition of such Transaction is restricted under this Master  Confirmation, the Securities Act and state securities laws.  3. Additional representations, warranties and covenants of Counterparty.  In addition to the  representations, warranties and covenants in the Agreement and those made by Counterparty under Section 2 of this  Master Confirmation, Counterparty represents and warrants, as of the Trade Date for each Transaction and covenants  to Jefferies that:  (a) 10b5-1 Plan.  (i) Counterparty is entering into this Master Confirmation and each Transaction  hereunder in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 under the  Exchange Act (“Rule 10b5-1”) or any other antifraud or anti-manipulation provisions of the federal or applicable state  securities laws and that it has not entered into or altered and will not enter into or alter any corresponding or hedging  transaction or position with respect to the Shares.  For the avoidance of doubt, the entry into any Permitted OMR  Transactions (as defined below) shall not fall within the ambit of the previous sentence.  Counterparty acknowledges  that it is the intent of the Counterparty and Jefferies that each Transaction entered into under this Master Confirmation  comply with the requirements of paragraphs (c)(1)(i)(A) and (B) of Rule 10b5-1 and that each Transaction entered  into under this Master Confirmation shall be interpreted to comply with the requirements of Rule 10b5-1(c).  (ii) Counterparty will not seek to control or influence Jefferies’s decision to make any  “purchases or sales” (within the meaning of Rule 10b5-1(c)(1)(i)(B)(3)) under any Transaction entered into  under this Master Confirmation, including, without limitation, the price paid per Share pursuant to such  purchases, whether such purchases are made on any securities exchange or privately and how, when or  whether Jefferies enters into any hedging transactions.  Counterparty represents and warrants that it has  consulted with its own advisors as to the legal aspects of its adoption and implementation of this Master  Confirmation and each Transaction Confirmation under Rule 10b5-1.  (iii) Counterparty acknowledges and agrees that any amendment, modification, waiver or  termination of this Master Confirmation or any Transaction Confirmation must be effected in accordance  with the requirements for the amendment or termination of a “plan” as defined in Rule 10b5-1(c).  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 or waiver shall be made at any time at which Counterparty is aware of any material  non-public information regarding Counterparty or the Shares.  (b) Tender Offer Rules.  Counterparty will not be engaged in an “issuer tender offer” as such term is  defined in Rule 13e-4 under the Exchange Act nor is it aware of any third party tender offer with respect to the Shares  within the meaning of Rule 13e-1 under the Exchange Act.  (c) Share Buy-back Program.  Each Transaction is being entered into pursuant to a publicly disclosed  Share buy-back program and Counterparty’s board of directors (or any committee thereof duly authorized to act on  behalf of the board of directors) has approved the use of accelerated share purchase programs to effect the Share buy- back program.  (d) 10b-18.  Neither Counterparty nor any “affiliated purchaser”, as defined in Rule 10b-18 under the  Exchange Act (“Rule 10b-18”), shall, without prior written consent of Jefferies, directly or indirectly purchase, offer  





 






11  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, or any security convertible into or exchangeable for such Shares and including,  without limitation, by means of a derivative instrument) on the open market, or enter into any accelerated share  repurchase program, or any derivative share repurchase transaction, or other similar transaction, during the Relevant  Period, Settlement Valuation Period or Seller Termination Purchase Period and thereafter until all payments or  deliveries of Shares under this Master Confirmation have been made. During such time, any purchases of Shares by  Counterparty shall be made through Jefferies or its affiliates, subject to such reasonable conditions as Jefferies or such  affiliate shall impose, and in compliance with Rule 10b-18 or otherwise in a manner that Counterparty and Jefferies  believe is in compliance with applicable requirements. Notwithstanding the immediately preceding sentence or  anything herein to the contrary, Counterparty may purchase Shares (i) on any Scheduled Trading Day pursuant to any  Rule 10b5-1 or Rule 10b-18 repurchase plan entered into with Jefferies or an Affiliate of Jefferies (each, a “Permitted  OMR Transaction”), so long as, on any Scheduled Trading Day, purchases under the Permitted OMR Transaction  do not in the aggregate exceed the lower of (x) Designated OMR Fixed Threshold and (y) Designated OMR Percentage  Threshold, in each case specified in the Transaction Confirmation for such Transaction, on such Scheduled Trading  Day.  In addition, notwithstanding anything to the contrary in this Master Confirmation or in the Equity Definitions,  Counterparty agrees that:  (i) Counterparty will not during the period beginning on, and including, the Trade Date for  any Transaction and ending on, and including, the last day of the Relevant Period or the last day of the  Settlement Valuation Period and the last day of the Seller Termination Purchase Period (as defined below),  for such Transaction, make or permit to be made (to the extent within Counterparty’s control), any public  announcement (as defined in Rule 165(f) under the Securities Act) of a Merger Transaction or potential  Merger Transaction (a “Merger Announcement”) unless such Merger Announcement is made prior to the  opening or after the close of the regular trading session on the Exchange for the Shares;  (ii) after any such Merger Announcement is made, Counterparty shall promptly (but in any  event prior to the next opening of the regular trading session on the Exchange) deliver written notice to  Jefferies that such Merger Announcement has been made, which notice shall also specify (A) Counterparty’s  average daily Rule 10b-18 Purchases (as defined in Rule 10b-18) during the three full calendar months  immediately preceding the date on which such Merger Announcement was made that were not effected  through Jefferies 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 date on which such Merger  Announcement was made.  Such written notice shall be deemed to be a certification by Counterparty to  Jefferies that such information is true and correct;  (iii) after any such Merger Announcement is made, Counterparty shall promptly notify Jefferies  of the earlier to occur of the completion of such transaction and the completion of any shareholder vote  related to such matter;  (iv) Counterparty is aware that each notice delivered pursuant to this section may result in the  adjustment of the terms of, or the termination of, one or more Transactions; accordingly, Counterparty  acknowledges that its delivery of such notice will comply with the standards set forth in clause (a) of this  Section 3; and  (v) Upon the occurrence of any such Merger Announcement, Jefferies in its good faith and  commercially reasonable discretion may (i) make commercially reasonable adjustments to the terms of any  Transaction, including, without limitation, the Scheduled Valuation Date or the Forward Price Discount,  and/or suspend the Settlement Valuation Period (which adjustments shall be based upon changes in stock  price, volatility, interest rates, stock loan rate, value of any commercially reasonable Hedge Positions in  connection with the Transaction, liquidity relevant to the Shares or to such Transaction and taking into  account whether the Calculation Period had fewer Scheduled Trading Days than originally anticipated) or  (ii) treat the occurrence of such Merger Announcement as an Additional Termination Event with  Counterparty as the sole Affected Party and the Transactions hereunder as the Affected Transactions and  





 






12  with the amount under Section 6(e) of the Agreement determined taking into account the fact that the  Settlement Valuation Period had fewer Scheduled Trading Days than originally anticipated.  “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 (after giving effect to the exclusions from such  reference in clause (A) of Rule 10b-18(a)(13)(iv)).   For any Transaction, the “Relevant Period” means the period beginning on, and including, the Valuation  Period Start Date for such Transaction and ending on, and including, the later of (i) the Scheduled Valuation Date for  such Transaction, or such earlier day as elected by Jefferies and communicated to Counterparty on such day (or, if  later, the First Acceleration Date without regard to any acceleration thereof pursuant to “Special Provisions  Acquisition Transaction Announcements” below) and (ii) if Section 7(b) is applicable to such Transaction, the date  on which all deliveries owed pursuant to Section 7(b) have been made.   (e) MNPI and Manipulation.  Counterparty is not entering into any Transaction under this Master  Confirmation (i) on the basis of, and is not aware of, any material non-public information with respect to the Shares,  (ii) in anticipation of, in connection with, or to facilitate, a distribution of its securities, a self-tender offer or a third- party tender offer or (iii) 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).  (f) Regulation M.  The Shares are not, and Counterparty will not cause the Shares to be, subject to a  “restricted period” (as defined in Regulation M promulgated under the Exchange Act) at any time during any  Regulation M Period for any Transaction unless Counterparty has provided written notice of such restricted period to  Jefferies at least three Scheduled Trading Days immediately preceding the first day of such “restricted period.”  In  addition, Counterparty acknowledges that any such notice may result in a Regulatory Disruption and that  Counterparty’s deliver of such notice must comply with the standards set forth in clause (a) of this Section 3.  “Regulation M Period” means, for any Transaction, (i) the Relevant Period for such Transaction, (ii) the Settlement  Valuation Period, if any, for such Transaction and (iii) the Seller Termination Purchase Period (as defined below), if  any, for such Transaction.   (g) Reporting Requirements.  Counterparty shall comply with all reporting requirements applicable to  each Transaction that Counterparty enters under this Master Confirmation, including, without limitation, those  applicable pursuant to the Exchange Act and the Rules and Regulations promulgated under the Exchange Act.  In  addition, as of (i) the date hereof and (ii) the Trade Date for each Transaction that Counterparty enters under this  Master Confirmation, Counterparty is, and will be, in compliance with its reporting obligations under the Exchange  Act and Counterparty’s most recent Annual Report on Form 10-K, together with all reports subsequently filed by it  pursuant to the Exchange Act, taken together and as amended and supplemented to the date on which Counterparty is  making this representation, do not, as of their respective filing dates, contain any untrue statement of a material fact  or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light  of the circumstances under which they were made, not misleading.  (h) Investment Company.  Counterparty is not and, after giving effect to any Transaction that it enters  under this Master Confirmation, will not be, required to register as an “investment company” as such term is defined  in the Investment Company Act of 1940, as amended.   (i) Solvency.  As of the Trade Date, the Prepayment Date, the Initial Share Delivery Date and the  Settlement Date for each Transaction, Counterparty is not “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”)) and Counterparty would  be able to purchase a number of Shares with a value equal to the Prepayment Amount in compliance with the laws of  the jurisdiction of Counterparty’s incorporation.  (j) Risk Disclosure.  Counterparty represents and warrants that it has received, read and understands  Jefferies’s “Risk Disclosure Statement Regarding OTC Derivatives Products” and acknowledges the terms thereof as  if it had signed the Risk Disclosure Statement Verification contained therein as of the date hereof.  





 






13  (k) Financial Expertise and Total Assets. Counterparty (i) is capable of evaluating investment risks  independently, both in general and with regard to all transactions and investment strategies involving a security or  securities; (ii) 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 (iii) has total assets of at least  USD 50,000,000 as of the date hereof.  (l) No Plan Assets.  The assets of Counterparty do not constitute “plan assets” under the Employee  Retirement Income Security Act of 1974, as amended, the Department of Labor Regulation promulgated thereunder  or similar law.  4. Acknowledgments by Counterparty and Jefferies.  Each of Counterparty and Jefferies intend that:  (a) each Transaction that Counterparty enters into under this Master Confirmation will be a “securities  contract” as defined in Section 741(7) of the Bankruptcy Code, a “swap agreement” as defined in Section 101(53B)  of the Bankruptcy Code and a “forward contract” as defined in Section 101(25) of 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),  362(b)(27), 362(o), 546(e), 546(g), 546(j), 555, 556, 560 and 561 of the Bankruptcy Code;  (b) the Agreement will be a “master netting agreement” as defined in Section 101(38A) of the  Bankruptcy Code;  (c) a party’s right to liquidate, terminate or accelerate any Transaction, net out or offset termination  values or payment amounts, and to exercise any other remedies upon the occurrence of any Event of Default or  Termination Event under the Agreement with respect to the other party or any Extraordinary Event that results in the  termination or cancellation of any Transaction will constitute a “contractual right” (as defined in the Bankruptcy  Code); and  (d) all payments for, under or in connection with each Transaction, all payments for the Shares  (including, for the avoidance of doubt, payment of the Prepayment Amount) and the transfer of such Shares to  constitute “settlement payments” and “transfers” (as defined in the Bankruptcy Code).  5. Additional Counterparty Acknowledgments.  Counterparty agrees and acknowledges that:  (a) during the term of any Transaction, Jefferies 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  establish, adjust or unwind its hedge position with respect to such Transaction;  (b) Jefferies and its affiliates may also be active in the market for the Shares other than in connection  with hedging activities in relation to any Transaction;  (c) Jefferies 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 Forward Price and the 10b-18 VWAP Price;  (d) any market activities of Jefferies and its affiliates with respect to the Shares may affect the market  price and volatility of the Shares, as well as the Forward Price and 10b-18 VWAP Price, each in a manner that may  be adverse to Counterparty;   (e) each Transaction is a derivatives transaction in which Counterparty has granted Jefferies an option;  Jefferies may purchase Shares for its own account at an average price that may be greater than, or less than, the price  paid by Counterparty under the terms of the related Transaction;   (f) without limiting the generality of Section 13.1 of the Equity Definitions, Counterparty  acknowledges that neither Jefferies nor any of its affiliates is making any representations or warranties or taking any  position or expressing any view with respect to the treatment of any Transaction that Counterparty enters into under  





 






14  this Master Confirmation under any accounting standards including, without limitation, ASC Topic 260, Earnings Per  Share, ASC Topic 815, Derivatives and Hedging, ASC Topic 480, Distinguishing Liabilities from Equity and ASC  815-40, Derivatives and Hedging – Contracts in Entity’s Own Equity; and  (g) Counterparty is not relying, and has not relied, upon Jefferies with respect to the legal, accounting,  tax or other implications of entering into this Master Confirmation and any Transaction.  In addition, Counterparty  has conducted its own analysis of the legal, accounting, tax and other implications of entering into this Master  Confirmation and of entering into Transactions under this Master Confirmation.  Counterparty further acknowledges  and agrees that Jefferies has not acted as its advisor in any capacity in connection with this Master Agreement or the  Transactions contemplated by this Master Confirmation.  Counterparty acknowledges that Jefferies is not acting as  the agent for Counterparty in effecting any purchase of Shares pursuant to this Agreement.  6. SPECIAL PROVISIONS FOR ACQUISITION TRANSACTION ANNOUNCEMENTS.  (a) If an Acquisition Transaction Announcement occurs on or prior to the Settlement Date for any  Transaction, then the Calculation Agent shall make such adjustments in a commercially reasonable manner to the  exercise, settlement, payment or any other terms of such Transaction as the Calculation Agent determines is  commercially reasonable, 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 (including adjustments  to account for changes in volatility, expected dividends, stock loan rate, the value of maintaining or establishing any  commercially reasonable hedge positions in connection with the Transaction and liquidity relevant to the Shares or to  such Transaction). If an Acquisition Transaction Announcement occurs after the Trade Date, but prior to the First  Acceleration Date of any Transaction, the First 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  Counterparty 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 Issuer  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 Counterparty with or into any third party, (ii) the sale or transfer of all or substantially all of the assets of  Counterparty, (iii) a recapitalization, reclassification, binding share exchange or other similar transaction with respect  to Counterparty, (iv) 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 other similar event  by Counterparty or any of its subsidiaries where the aggregate consideration transferable or receivable by or to  Counterparty or its subsidiaries exceeds 15% of the market capitalization of Counterparty and (v) any transaction in  which Counterparty 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).   7. Miscellaneous.  (a) Delivery of Shares.  Notwithstanding anything to the contrary herein, Jefferies 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  





 






15  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.  (b) Early Termination.  In the event that an Early Termination Date (whether as a result of an Event of  Default or a Termination Event) occurs or is designated or deemed to occur with respect to any Transaction or any  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 Counterparty’s control, or (iii) an Event of Default in which  Counterparty is the Defaulting Party or a Termination Event in which Counterparty 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  Counterparty’s control), if either party would owe any amount to the other party 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 Amount”), then, in lieu of any payment of such Payment Amount, unless Counterparty makes an election  to the contrary no later than the Early Termination Date or the date on which such Transaction is terminated or  cancelled, Counterparty or Jefferies, as the case may be, shall deliver to the other party a number of Shares (or, in the  case of a Nationalization, Insolvency or Merger Event, 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 Nationalization, Insolvency or  Merger Event, as the case may be (each such unit, an “Alternative Delivery Unit”)) with a value equal to the Payment  Amount, as determined in a commercially reasonable manner by the Calculation Agent over a commercially  reasonable period of time (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 Delivery Unit on  the Early Termination Date or the date of early cancellation or termination, as the case may be, and if such delivery is  made by Jefferies, the prices at which Jefferies purchases Shares or Alternative Delivery Units to fulfill its delivery  obligations under this Section 7(b)); provided that in determining the composition of any Alternative Delivery Unit,  if the relevant Nationalization, Insolvency or Merger Event involves a choice of consideration to be received by  holders, such holder shall be deemed to have elected to receive the maximum possible amount of cash; and provided  further that Counterparty may elect that the provisions of this Section 7(b) above providing for the delivery of Shares  or Alternative Delivery Units, as the case may be, shall not apply only if Counterparty represents and warrants to  Jefferies, in writing on the date it notifies Jefferies of such election, that, as of such date, Counterparty is not aware of  any material non-public information regarding Counterparty or the Shares and is making such election in good faith  and not as part of a plan or scheme to evade compliance with the federal securities laws. If delivery of Shares or  Alternative Delivery Units, as the case may be, pursuant to this Section 7(b) is to be made by Counterparty, paragraphs  2 through 7 of Annex A hereto shall apply as if (A) such delivery were a settlement of the Transaction to which Net  Share Settlement applied, (B) the Cash Settlement Payment Date were the Early Termination Date or the date of early  cancellation or termination, as the case may be, and (C) the Forward Cash Settlement Amount were zero (0) minus  the Payment Amount owed by Counterparty.  For the avoidance of doubt, if Counterparty validly elects for the  provisions of this Section 7(b) relating to the delivery of Shares or Alternative Delivery Units, as the case may be, not  to apply to any Payment Amount, the provisions of Article 12 of the Equity Definitions, or the provisions of Section  6(d)(ii) of the Agreement, as the case may be, shall apply.  If delivery of Shares or Alternative Delivery Units, as the  case may be, is to be made by Jefferies pursuant to this Section 7(b), the period during which Jefferies purchases  Shares or Alternative Delivery Units to fulfill its delivery obligations under this Section 7(b) shall be referred to as  the “Seller Termination Purchase Period”.   (c) Calculations and Payment Date upon Early Termination.  The parties acknowledge and agree that  in calculating (i) the Close-out Amount pursuant to Section 6 of the Agreement or (ii) the amount due upon  cancellation or termination of any Transaction (whether in whole or in part) pursuant to Article 12 of the Equity  Definitions as a result of an Extraordinary Event, Jefferies may (but need not) determine such amount based on (A)  expected losses assuming a commercially reasonable (including without limitation with regard to reasonable legal and  regulatory guidelines) risk bid were used to determine loss or (B) the price at which one or more market participants  would offer to sell to Jefferies a block of Shares equal in number to Jefferies’ hedge position in relation to the  Transaction.  Notwithstanding anything to the contrary in Section 6(d)(ii) of the Agreement, all amounts calculated as  being due in respect of an Early Termination Date under Section 6(e) of the Agreement or upon cancellation or  termination of the relevant Transaction under Article 12 of the Equity Definitions will be payable on the day that  notice of the amount payable is effective; provided that if Counterparty elects to receive Shares or Alternative Delivery  





 






16  Units in accordance with clause (b) of this Section 7, such Shares or Alternative Delivery Units shall be delivered on  a date selected by Jefferies as promptly as practicable.  (d) Delivery of Cash.  For the avoidance of doubt, nothing in this Master Confirmation shall be  interpreted as requiring Counterparty to deliver cash in respect of the settlement of the Transactions contemplated by  this Master Confirmation following payment by Counterparty of the relevant Prepayment Amount, except in  circumstances where the required cash settlement thereof is permitted for classification of the contract as equity under  ASC 815-40, Derivatives and Hedging – Contracts in Entity’s Own Equity as in effect on the relevant Trade Date  (including, without limitation, where Counterparty so elects to deliver cash or fails timely to elect to deliver Shares or  Alternative Delivery Units in respect of the settlement of such Transactions).  (e) No Netting or Set-off.  Obligations under any Transaction shall not be netted, recouped or set off  (including pursuant to Section 6 of the Agreement) against any other obligations of the parties, whether arising under  the Agreement, this Master Confirmation or any Transaction Confirmation, or under any other agreement between the  parties hereto, by operation of law or otherwise, and no other obligations of the parties shall be netted, recouped or set  off (including pursuant to Section 6 of the Agreement) against obligations under any Transaction, whether arising  under the Agreement, this Master Confirmation or any Transaction Confirmation, or under any other agreement  between the parties hereto, by operation of law or otherwise, and each party hereby waives any such right of setoff,  netting or recoupment.  (f) No Collateral.  Counterparty and Jefferies acknowledge that no Transaction entered into under this  Master Agreement is secured by any collateral that would otherwise secure the obligations of Counterparty herein or  pursuant to the Agreement.  (g) Subordinated to Level of Equity.  Jefferies acknowledges and agrees that this Master Confirmation  is not intended to convey to it rights with respect to any Transaction entered under it that are senior to the claims of  the holders of the Shares in the event of Counterparty’s bankruptcy; provided, however, that nothing herein shall limit  or shall be deemed to limit Jefferies’s right to pursue remedies in the event of a breach by Counterparty of its  obligations and agreements with respect to this Master Confirmation; and provided further that in pursuing a claim  against Counterparty in the event of a bankruptcy, insolvency or dissolution with respect to Counterparty, Jefferies’s  rights hereunder shall rank on a parity with the rights of a holder of the Shares enforcing similar rights under a contract  involving the Shares.  (h) Indemnification.  Counterparty will indemnify and hold Jefferies harmless against any losses,  claims, damages or liabilities to which Jefferies may become subject in connection with any matter referred to in this  Master Confirmation or the Transaction Confirmation for any Transaction entered into under this Master  Confirmation, except to the extent that any such loss, claim, damage or liability (i) is found in a nonappealable  judgment by a court of competent jurisdiction to have resulted from Jefferies’ willful misconduct or gross negligence  (and in such case, Jefferies shall promptly return to Counterparty any amounts previously expended by Counterparty  hereunder) or (ii) are trading losses incurred by Jefferies as part of its purchases or sales of Shares pursuant to this Master  Confirmation or any Transaction (unless such trading losses are related to the breach of any agreement, term or covenant  herein).  The obligations of Counterparty under this Section 7(h) shall be in addition to any liability which  Counterparty may otherwise have, shall extend upon the same terms and conditions to any affiliate of Jefferies and  the partners, directors, officers, agents, employees and controlling persons (if any), as the case may be, of Jefferies  and any such affiliate and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal  representatives of Counterparty, Jefferies, any such affiliate and any such person.  The foregoing provisions shall  survive any termination, completion or assignment of this Master Confirmation and/or any Transaction hereunder.  (i) Delivery Procedures and Limitation.  Notwithstanding anything to the contrary in this Master  Confirmation, Counterparty acknowledges and agrees that, on any day, Jefferies (or its agent or affiliate) shall not be  obligated to deliver or receive any Shares to or from Counterparty and Counterparty shall not be entitled to receive  any Shares if such receipt or delivery would result in Jefferies directly or indirectly beneficially owning (as such term  is defined for purposes of Section 13(d) of the Exchange Act) at any time in excess of 7.5% of the outstanding Shares.   Any purported receipt or delivery of the Shares shall be void and have no effect to the extent (but only to the extent)  that any receipt or delivery of such Shares would result in Jefferies directly or indirectly so beneficially owning in  excess of 7.5% of the outstanding Shares.  If, on any day, any delivery or receipt of the Shares by Jefferies (or its agent  





 






17  or affiliate) is not effected, in whole or in part, as a result of this provision, Jefferies’ and Counterparty’s respective  obligations to make or accept such receipt or delivery shall not be extinguished and such receipt or delivery shall be  effected over time as promptly as Jefferies reasonably determines that such receipt or delivery would not result in  Jefferies directly or indirectly beneficially owning in excess of 7.5% of the outstanding Shares.  (j) [Omitted].  (k) Severability.  If any term, provision, covenant or restriction of this Master Confirmation, the  Agreement or the Transaction Confirmation for any Transaction entered into under this Master Confirmation is held  by a court of competent jurisdiction to be invalid, void or unenforceable, the reminder of the terms, provisions,  covenants and obligations set forth herein or therein shall remain in full force and effect and shall in no way be  affected, impaired or invalidated.  (l) Headings.  Descriptive headings herein are for convenience only and shall not control or affect the  meaning or construction of any provision of this Master Confirmation.  (m) Counterparts.  This Master Confirmation may be executed by the parties hereto in counterparts, and  each such executed counterpart shall be, and shall be deemed to be, an original instrument and all such counterparts,  taken together, shall constitute one and the same instrument.  The words “execution,” “signed,” “signature,” and words  of like import in the Agreement, this Master Confirmation, any Transaction Confirmation or in any other certificate,  agreement or document related to the Agreement, this Master Confirmation or any Transaction Confirmation, if any,  shall include images of manually executed signatures transmitted by facsimile or other electronic format (including,  without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and  AdobeSign).  The use of electronic signatures and electronic records (including, without limitation, any contract or  other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same  legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping  system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and  National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law,  including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform  Commercial Code.  (n) Assignment.  Notwithstanding anything to the contrary in the Agreement or in this Master  Confirmation, Jefferies may transfer or assign its rights and obligations hereunder, in whole or in part, without the  consent of Counterparty to any affiliate of Jefferies.  Counterparty may not assign its rights or obligations hereunder,  in whole or in part, without the prior written consent of Jefferies (which consent shall not be unreasonably withheld),  and any attempt by Counterparty to assign any of its rights or obligations hereunder without such consent shall be  void. Jefferies may designate any of its affiliates to purchase, sell, receive or deliver such shares or other securities  and otherwise to perform Jefferies’s obligations in respect of any Transaction hereunder and any such designee may  assume such obligations without the written consent of Counterparty. Jefferies shall be discharged of its obligations  to Counterparty solely to the extent of any such performance. For the avoidance of doubt, Jefferies hereby  acknowledges that notwithstanding any such designation hereunder, to the extent any of Jefferies’s obligations in  respect of any Transaction are not completed by its designee, Jefferies shall be obligated to continue to perform or to  cause any other of its designees to perform in respect of such obligations.  (o) Waiver.  No failure or delay on the part of Jefferies or Counterparty in exercising any power or right  hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any  abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof  or the exercise of any other right or power.  No amendment, modification or waiver of any provision of this Master  Confirmation, the Agreement or the Transaction Confirmation for any Transaction entered into under this Master  Confirmation, nor any consent to any departure by either party therefrom shall in any event be effective unless the  same shall be in writing and, in the case of a waiver or consent, shall be effective only in the specific instance and for  the purpose for which given.  (p) Beneficiaries.  This Master Confirmation and the Transaction Confirmation for any Transaction  entered into under this Master Confirmation shall be binding upon, and inure solely to the benefit of, Counterparty,  Jefferies and, to the extent provided in clause (h) of this Section 7, the affiliates, partners, directors, officers, agents,  





 






18  employees and controlling persons, if any, of Jefferies, and their respective successors, assigns, heirs and personal  representatives, and no other person shall acquire any rights hereunder.  (q) Governing Law; Jurisdiction; Waiver of Jury Trial.    (i) The Agreement, this Master Confirmation, each Transaction Confirmation and all matters  arising in connection with the Agreement, this Master Confirmation and each Transaction Confirmation shall  be governed by and construed and enforced in accordance with the laws of the State of New York without  reference to conflict of law principles.  Each of Jefferies and Counterparty irrevocably submits to the extent  permitted under applicable law to the exclusive jurisdiction of the federal and state courts located in the  Borough of Manhattan, State of New York and waive any objection to the laying of venue in, and  inconvenient forum with respect to, such courts.  Nothing in this provision shall prohibit a party from bringing  an action to enforce a money judgment in any other jurisdiction.    (ii) 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 this the Agreement, this  Master Confirmation and/or each Transaction Confirmation.  (r) CARES Act.  Counterparty acknowledges that each Transaction may constitute a purchase of its  equity securities or a capital distribution.  Counterparty further acknowledges that, pursuant to the provisions of the  Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”), the Counterparty will be required to agree  to certain time-bound restrictions on its ability to purchase its equity securities or make capital distributions if it  receives loans, loan guarantees or direct loans (as that term is defined in the CARES Act) under section 4003(b) of  the CARES Act.  Counterparty further acknowledges that it may be required to agree to certain time-bound restrictions  on its ability to purchase its equity securities or make capital distributions if it receives loans, loan guarantees or direct  loans (as that term is defined in the CARES Act) under programs or facilities established by the Board of Governors  of the Federal Reserve System or the U.S. Department of Treasury for the purpose of providing liquidity to the  financial system, and may be required to agree to similar restrictions under programs or facilities established in the  future.  Accordingly, Counterparty represents and warrants that neither it nor any of its subsidiaries has applied for,  and throughout the term of each Transaction shall not apply, for a loan, loan guarantee, direct loan (as that term is  defined in the CARES Act) or other investment, or to receive any financial assistance or relief (howsoever defined)  under any program or facility that (a) is established under applicable law (whether in existence as of the date of this  Master Confirmation or subsequently enacted, adopted or amended), including without limitation the CARES Act and  the Federal Reserve Act, as amended, and (b) requires under applicable law (or any regulation, guidance, interpretation  or other pronouncement thereunder), as a condition of such loan, loan guarantee, direct loan (as that term is defined  in the CARES Act), investment, financial assistance or relief, that Counterparty or any of its subsidiaries agree, attest,  certify or warrant that it has not, as of the date specified in such condition, repurchased, or will not repurchase, any  equity security of Counterparty, and that it has not, as of the date specified in such condition, made a capital  distribution or will not make a capital distribution  (collectively, “Restricted Financial Assistance”); provided that  Counterparty may apply for Restricted Financial Assistance if Counterparty either (a) determines, based on the advice  of outside counsel of national standing, that the terms of any Transaction would not cause Counterparty to fail to  satisfy any condition for application for or receipt or retention of such loan, loan guarantee, direct loan (as that term  is defined in the CARES Act), investment, financial assistance or relief based on the terms of the program or facility  as of the date of such advice or (b) delivers to Jefferies evidence of a waiver or other guidance from a governmental  authority with jurisdiction for such program or facility that each Transaction is permitted under such program or  facility (either by specific reference to each Transaction or by general reference to transactions with attributes of each  Transaction in all relevant respects).  Counterparty further represents and warrants that the Prepayment Amount is not  being paid, in whole or in part, directly or indirectly, with funds received under or pursuant to any program or facility,  including the U.S. Small Business Administration’s “Paycheck Protection Program”, that (a) is established under  applicable law (whether in existence as of the Trade Date or subsequently enacted, adopted or amended), including  without limitation the CARES Act and the Federal Reserve Act, as amended, and (b) requires under such applicable  law (or any regulation, guidance, interpretation or other pronouncement of a governmental authority with jurisdiction  for such program or facility) that such funds be used for specified or enumerated purposes that do not include the  purchase of each Transaction (either by specific reference to each Transaction or by general reference to transactions  with the attributes of each Transaction in all relevant respects).  





 






19  8. Matters Relating to Taxes.  (a) Tax Documentation.  For the purposes of Sections 4(a)(i) and 4(a)(ii) of the Agreement,  Counterparty shall provide to Jefferies a valid and duly executed U.S. Internal Revenue Service Form W-9, or any  successor thereto, with the “corporation” box checked, (i) on or before the date of execution of this Confirmation; (ii)  promptly upon reasonable demand by the other party; and (iii) promptly upon learning that any such tax form  previously provided has become invalid, obsolete, or incorrect.  For the purposes of Sections 4(a)(i) and 4(a)(ii) of the  Agreement, Jefferies shall provide to Counterparty a valid and duly executed U.S. Internal Revenue Service Form W- 9, or any successor thereto, (i) on or before the date of execution of this Confirmation and (ii) promptly upon  reasonable demand by Counterparty.  (b) Withholding Tax Imposed on Payments to Non-US Counterparties under the United States Foreign  Account Tax Compliance Act.  “Indemnifiable Tax”, as defined in Section 14 of the Agreement shall not include any  U.S. federal withholding tax imposed or collected pursuant to Sections 1471 through 1474 of the Code, any current  or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the  Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement  entered into in connection with the implementation of such Sections of the Code (a “FATCA Withholding Tax”).   For the avoidance of doubt, a FATCA Withholding Tax is a Tax the deduction or withholding of which is required by  applicable law for the purposes of Section 2(d) of the Agreement.  (c) Incorporation of ISDA 2015 Section 871(m) Protocol Provisions.  To the extent that either party to  the Agreement with respect to the Transaction is not an adhering party to the ISDA 2015 Section 871(m) Protocol  published by the International Swaps and Derivatives Association, Inc. on November 2, 2015 and available at  www.isda.org, as may be amended, supplemented, replaced or superseded from time to time (the “871(m) Protocol”),  the parties agree that the provisions and amendments contained in the Attachment to the 871(m) Protocol are  incorporated into and apply to the Agreement with respect to the Transaction as if set forth in full herein.  The parties  further agree that, solely for purposes of applying such provisions and amendments to the Agreement with respect to  the Transaction, references to “each Covered Master Agreement” in the 871(m) Protocol will be deemed to be  references to the Agreement with respect to the Transaction, and references to the “Implementation Date” in the  871(m) Protocol will be deemed to be references to the Trade Date of the Transaction. For greater certainty, if there  is any inconsistency between this provision and the provisions contained in any other agreement between the parties  with respect to each Transaction, this provision shall prevail unless such other agreement expressly overrides the  provisions of the Attachment to the 871(m) Protocol.  (d) Payee Tax Representations.  For the purpose of Section 3(f) of the Agreement:  (i) Jefferies makes the following representations:  (A) It is a limited liability company organized under the laws of the State of  Delaware and is treated as a disregarded entity of a New York corporation for United States federal  income tax purposes.  (B) Its’ sole member is “exempt” within the meaning of U.S. Treasury Regulations  Sections 1.6041-3(p) and 1.6049-4(c) from information reporting on Form 1099 and backup  withholding.  (ii) Counterparty makes the following representations:  (A) It is a “U.S. person” within the meaning of Treasury Regulation Section  1.1441-4(a)(3)(ii) and an exempt recipient within the meaning of Treasury Regulation Section  1.6049-4(c)(1)(ii)(A).    





 






          US-DOCS\7418141.9   By signing this Master Confirmation and returning it to Jefferies Counterparty hereby (a) agrees that it has  checked this Master Confirmation carefully for errors or discrepancies and (b) confirms that this Master Confirmation  correctly sets forth the terms of the agreement between Jefferies and Counterparty with respect to any Transaction that  Counterparty enters into with Jefferies under this Master Confirmation.      Sincerely yours,    JEFFERIES LLC        By: /s/ John Noonan   Name: John Noonan  Title: Managing Director        Agreed and Accepted By:    BLUELINX HOLDINGS INC.      By: /s/ Kelly C. Janzen   Name: Kelly C. Janzen  Title: Senior Vice President and Chief Financial Officer    





 






      A-1  US-DOCS\7418141.9 SCHEDULE A  TRANSACTION CONFIRMATION  ACCELERATED SHARE REPURCHASE TRANSACTION  Date: [                         ]  To: BlueLinx Holdings Inc.   1950 Spectrum Circle, Suite 300   Marietta, GA 30067  From: Jefferies LLC   520 Madison Avenue   New York, NY 10022    Re:  Accelerated Share Repurchase Transaction  Ladies and Gentleman:  This Transaction Confirmation confirms the terms and conditions of the Transaction entered into between  Jefferies LLC (“Jefferies”) and BlueLinx Holdings Inc. (“Counterparty”) (together, the “Contracting Parties”) on  the Trade Date specified below.  This Transaction Confirmation is a binding contract between Jefferies and  Counterparty as of the relevant Trade Date for the Transaction referenced below.  1. This Transaction Confirmation supplements, forms part of, and is subject to the Master Confirmation dated  as of May 3, 2022 (the “Master Confirmation”) between the Contracting Parties, as amended and supplemented from  time to time.  All provisions contained in the Master Confirmation govern this Transaction Confirmation except as  expressly modified below.  2. The additional terms of the Transaction to which this Transaction Confirmation relates are as follows:    Trade Date: [               ]  Prepayment Amount: USD [               ]  Prepayment Date: [               ]  Forward Price Discount: USD [   ]   Valuation Period Start Date: [               ]  Initial Share Delivery Date: [               ]   Number of Initial Shares: [               ] Shares; provided that if, in connection with the Transaction,  Jefferies is unable to borrow or otherwise acquire a number of Shares  equal to the Number of Initial Shares for delivery to Counterparty on  the Initial Share Delivery Date, the Number of Initial Shares shall be  reduced to such number of Shares that Jefferies is able to so borrow or  otherwise acquire.  Scheduled Valuation Date: [               ]  First Acceleration Date: [               ]  Maximum Stock Loan Rate [      ] basis points per annum  Initial Stock Loan Rate [     ] basis points per annum  Automatic Termination Price: USD [               ]  Designated OMR Fixed Threshold: [____]    





 






A-2  US-DOCS\7418141.9 Designated OMR Percentage Threshold: For any Scheduled Trading Day, [____]% of the daily trading volume  of the Shares based on transactions executed in the United States during  the regular trading session (including any extensions thereof) of the  Exchange on such Scheduled Trading Day (without regard to pre-open  or after hours trading outside of such regular trading session for such  Scheduled Trading Day), as determined by the Calculation Agent.  3. Counterparty represents and warrants to Jefferies that neither it nor any “affiliated purchaser” (as defined in  Rule 10b-18 under the Exchange Act) of Counterparty 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.  4. This Transaction 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 Transaction Confirmation by signing and  delivering one or more counterparts.    





 






      A-3  US-DOCS\7418141.9  By signing this Transaction Confirmation and returning it to Jefferies Counterparty hereby (a) agrees that it  has checked this Transaction Confirmation carefully for errors or discrepancies and (b) confirms that this Transaction  Confirmation correctly sets forth the terms of the agreement between Jefferies and Counterparty with respect to the  Transaction between Counterparty and Jefferies to which this Transaction Confirmation relates.      Sincerely yours,    JEFFERIES LLC        By:    Name:  Title:        Agreed and Accepted By:    BLUELINX HOLDINGS INC.      By:    Name:  Title:      





 






      1  ANNEX A  COUNTERPARTY SETTLEMENT PROVISIONS  1. The following Counterparty Settlement Provisions shall apply to the extent indicated under  the Master Confirmation:  Settlement Currency: USD  Settlement Method Election: Applicable; provided that (i) Section 7.1 of the Equity Definitions is hereby  amended by deleting the word “Physical” in the sixth line thereof and  replacing it with the words “Net Share” and (ii) the Electing Party may make  a settlement method election only if the Electing Party represents and  warrants to Jefferies in writing on the date it notifies Jefferies of its election  that, as of such date, the Electing Party is not aware of any material non- public information concerning Counterparty or the Shares and is electing the  settlement method in good faith and not as part of a plan or scheme to evade  compliance with the federal securities laws.  Electing Party: Counterparty  Settlement Method  Election Date: The earlier of (i) the Scheduled Valuation Date and (ii) the Exchange  Business Day immediately following the Valuation Date (if different than the  Scheduled Valuation Date).  Default Settlement Method: Cash Settlement  Forward Cash Settlement  Amount: The Number of Shares to be Delivered multiplied by the Settlement Price.  Settlement Price: The arithmetic average of the 10b-18 VWAP Prices for the Scheduled  Trading Days in the Settlement Valuation Period plus USD 0.02, subject to  Valuation Disruption as specified in the Master Confirmation, plus interest  on such amount during the Settlement Period at the rate of interest for  Counterparty’s long term, unsecured and unsubordinated indebtedness, as  determined by the Calculation Agent.  Settlement Valuation Period: A number of consecutive Scheduled Trading Days selected by Jefferies in its  good faith and commercially reasonable reasonable discretion, beginning on  the Scheduled Trading Day immediately following the Settlement Method  Election Date.   Cash Settlement: If Cash Settlement is applicable, then Buyer shall pay to Seller the absolute  value of the Forward Cash Settlement Amount on the Cash Settlement  Payment Date.   Cash Settlement  Payment Date: The date that is one Settlement Cycle following the last day of the Settlement  Valuation Period.  Net Share Settlement  Procedures: If Net Share Settlement is applicable, Net Share Settlement shall be made in  accordance with paragraphs 2 through 7 below.  2. Net Share Settlement shall be made by delivery on the Cash Settlement Payment Date of a  number of Shares satisfying the conditions set forth in paragraph 3 below (the “Registered Settlement Shares”), or  





 






2  a number of Shares not satisfying such conditions (the “Unregistered Settlement Shares”), in either case with a value  equal to 101% (in the case of Registered Settlement Shares) or 105% (in the case of Unregistered Settlement Shares)  of the absolute value of the Forward Cash Settlement Amount, with such Shares’ value based on the value thereof to  Jefferies (which value shall, in the case of Unregistered Settlement Shares, take into account a commercially  reasonable illiquidity discount), in each case as determined by the Calculation Agent.  Notwithstanding Counterparty’s  election of Net Share Settlement, if all of the conditions for delivery of either Registered Settlement Shares or  Unregistered Settlement Shares have not been met, Cash Settlement shall be applicable in accordance with paragraph  1 above.  3. Counterparty may only deliver Registered Settlement Shares pursuant to paragraph 2 above  if:  (a) a registration statement covering public resale of the Registered Settlement Shares by  Jefferies (the “Registration Statement”) shall have been filed with the Securities and Exchange Commission under  the Securities Act and been declared or otherwise become effective on or prior to the date of delivery, and no stop  order shall be in effect with respect to the Registration Statement; a printed prospectus relating to the Registered  Settlement Shares (including any prospectus supplement thereto, the “Prospectus”) shall have been delivered to  Jefferies, in such quantities as Jefferies shall reasonably have requested, on or prior to the date of delivery;  (b) the form and content of the Registration Statement and the Prospectus (including, without  limitation, any sections describing the plan of distribution) shall be satisfactory to Jefferies;  (c) as of or prior to the date of delivery, Jefferies and its agents shall have been afforded a  reasonable opportunity to conduct a due diligence investigation with respect to Counterparty customary in scope for  underwritten offerings of equity securities and the results of such investigation are satisfactory to Jefferies, in its  reasonable discretion; and  (d) as of the date of delivery, an agreement (the “Underwriting Agreement”) shall have been  entered into with Jefferies in connection with the public resale of the Registered Settlement Shares by Jefferies  substantially similar to underwriting agreements customary for underwritten offerings of equity securities, in form  and substance satisfactory to Jefferies, which Underwriting Agreement shall include, without limitation, provisions  substantially similar to those contained in such underwriting agreements relating, without limitation, to the  indemnification of, and contribution in connection with the liability of, Jefferies and its affiliates and the provision of  customary opinions, accountants’ comfort letters and lawyers’ negative assurance letters.  4. If Counterparty delivers Unregistered Settlement Shares pursuant to paragraph 2 above:  (a) all Unregistered Settlement Shares shall be delivered to Jefferies (or any affiliate of  Jefferies designated by Jefferies) pursuant to the exemption from the registration requirements of the Securities Act  provided by Section 4(a)(2) thereof;  (b) as of or prior to the date of delivery, Jefferies and any potential purchaser of any such  Shares from Jefferies (or any affiliate of Jefferies designated by Jefferies) identified by Jefferies shall be afforded a  commercially reasonable opportunity to conduct a due diligence investigation with respect to Counterparty customary  in scope for private placements of equity securities (including, without limitation, the right to have made available to  them for inspection all financial and other records, pertinent corporate documents and other information reasonably  requested by them) and the results of such investigation shall be satisfactory to Jefferies or such potential purchaser,  as the case may be, in its reasonable discretion;   (c) as of the date of delivery, Counterparty shall enter into an agreement (a “Private  Placement Agreement”) with Jefferies (or any affiliate of Jefferies designated by Jefferies) in connection with the  private placement of such shares by Counterparty to Jefferies (or any such affiliate) and the private resale of such  shares by Jefferies (or any such affiliate), substantially similar to private placement purchase agreements customary  for private placements of equity securities, in form and substance commercially reasonably satisfactory to Jefferies,  which Private Placement Agreement shall include, without limitation, provisions substantially similar to those  





 






3  contained in such private placement purchase agreements relating  to the indemnification of, and contribution in  connection with the liability of, Jefferies and its affiliates and the provision of customary opinions, accountants’  comfort letters and lawyers’ negative assurance letters, and shall provide for the payment by Counterparty of all fees  and expenses in connection with such resale, including all fees and expenses of counsel for Jefferies, and shall contain  representations, warranties, covenants and agreements of Counterparty reasonably necessary or advisable to establish  and maintain the availability of an exemption from the registration requirements of the Securities Act for such resales;  and  (d) in connection with the private placement of such shares by Counterparty to Jefferies (or  any such affiliate) and the private resale of such shares by Jefferies (or any such affiliate), Counterparty shall, if so  requested by Jefferies, prepare, in cooperation with Jefferies, a private placement memorandum in form and substance  reasonably satisfactory to Jefferies.   5. Jefferies, itself or through an affiliate (the “Selling Agent”) or any underwriter(s), will sell  all, or such lesser portion as may be required hereunder, of the Registered Settlement Shares or Unregistered  Settlement Shares and any Makewhole Shares (as defined below) (together, the “Settlement Shares”) delivered by  Counterparty to Jefferies pursuant to paragraph 6 below commencing on the Cash Settlement Payment Date and  continuing until the date on which the aggregate Net Proceeds (as such term is defined below) of such sales, as  determined by Jefferies, is equal to the absolute value of the Forward Cash Settlement Amount (such date, the “Final  Resale Date”).  If the proceeds of any sale(s) made by Jefferies, the Selling Agent or any underwriter(s), net of any  fees and commissions (including, without limitation, underwriting or placement fees) customary for similar  transactions under the circumstances at the time of the offering, together with carrying charges and expenses incurred  in connection with the offer and sale of the Shares (including, but without limitation to, the covering of any over- allotment or short position (syndicate or otherwise)) (the “Net Proceeds”) exceed the absolute value of the Forward  Cash Settlement Amount, Jefferies will refund, in USD, such excess to Counterparty on the date that is three (3)  Currency Business Days following the Final Resale Date, and, if any portion of the Settlement Shares remains unsold,  Jefferies shall return to Counterparty on that date such unsold Shares.  6. If the Calculation Agent determines in a commercially reasonable manner in good faith that  the Net Proceeds received from the sale of the Registered Settlement Shares or Unregistered Settlement Shares or any  Makewhole Shares, if any, pursuant to this paragraph 6 are less than the absolute value of the Forward Cash Settlement  Amount (the amount in USD by which the Net Proceeds are less than the absolute value of the Forward Cash  Settlement Amount being the “Shortfall”), Counterparty shall, on the Exchange Business Day next succeeding the  day on which such Shortfall is established (the “Makewhole Notice Date”), deliver to Jefferies, through the Selling  Agent, a notice of Counterparty’s election that Counterparty shall either (i) pay an amount in cash equal to the Shortfall  on the day that is one (1) Currency Business Day after the Makewhole Notice Date, or (ii) deliver additional Shares.   If Counterparty elects to deliver to Jefferies additional Shares, then Counterparty shall deliver additional Shares in  compliance with the terms and conditions of paragraph 3 or paragraph 4 above, as the case may be (the “Makewhole  Shares”), on the first Clearance System Business Day which is also an Exchange Business Day following the  Makewhole Notice Date in such number as the Calculation Agent reasonably believes would have a market value on  that Exchange Business Day equal to the Shortfall.  Such Makewhole Shares shall be sold by Jefferies in accordance  with the provisions above; provided that if the sum of the Net Proceeds from the sale of the originally delivered Shares  and the Net Proceeds from the sale of any Makewhole Shares is less than the absolute value of the Forward Cash  Settlement Amount then Counterparty shall, at its election, either make such cash payment or deliver to Jefferies  further Makewhole Shares until such Shortfall has been reduced to zero.  7. Notwithstanding the foregoing, in no event shall the aggregate number of Settlement  Shares and Makewhole Shares be greater than the Reserved Shares minus the amount of any Shares actually delivered  by Counterparty under any other Transaction(s) under this Master Confirmation (the result of such calculation, the  “Capped Number”).  Counterparty represents and warrants (which shall be deemed to be repeated on each day that  a Transaction is outstanding) that the Capped Number is equal to or less than the number of Shares determined  according to the following formula:  





 






4  A – B  Where A = the number of authorized but unissued shares of the Counterparty that are not reserved  for future issuance on the date of the determination of the Capped Number; and   B = the maximum number of Shares required to be delivered to third parties if Counterparty  elected Net Share Settlement of all transactions in the Shares (other than Transactions in  the Shares under this Master Confirmation) with all third parties that are then currently  outstanding and unexercised.  “Reserved Shares” means initially, [      ] Shares.  The Reserved Shares may be increased or  decreased in a Transaction Confirmation.  If at any time, as a result of this paragraph 7, Counterparty fails to deliver to Jefferies any Settlement Shares,  Counterparty shall, to the extent that Counterparty has at such time authorized but unissued Shares not reserved for  other purposes, promptly notify Jefferies thereof and deliver to Jefferies a number of Shares not previously delivered  as a result of this paragraph 7.  Counterparty agrees to use its best efforts to cause the number of authorized but  unissued Shares to be increased, if necessary, to an amount sufficient to permit Counterparty to fulfill its obligation to  deliver any Settlement Shares.