UNITED STATES
	SECURITIES AND EXCHANGE COMMISSION
	Washington, D.C. 20549
	SCHEDULE 13D

 

Under the Securities Exchange Act of 1934
(Amendment No. 1)

 

(Name of Issuer)

 

(Title of Class of Securities)

 

(CUSIP Number)

 

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

 

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because § 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g) check the following box o.

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits.  See § 240.13d-7(b) for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 

(1)	The total number of shares of common stock, par value $0.01 per share (the “Common Shares”), reported includes (i) on an as-converted basis (based on the initial conversion price of $41.26, as adjusted), 9,694,619 Common Shares that are issuable upon the conversion, at the option of the holder, of 400,000 Shares of Series A Cumulative Convertible Participating Preferred Stock (the “Preferred Shares”) that, as of the date hereof, are held directly by CD&R Boulder Holdings, L.P. (“CD&R Holdings”) and (ii) 314,400 Common Shares acquired by CD&R Holdings on August 9, 2018. Each Preferred Share is entitled to vote with holders of the Common Shares on an as-converted basis, based on the initial conversion price of $41.26, as adjusted, and accrued dividends through the date of conversion. All of these Common Shares may be deemed to be beneficially owned by CD&R Investment Associates IX, Ltd., as the general partner of CD&R Holdings (“CD&R Holdings GP”).
(2)	CD&R Holdings’ voting percentage is 12.86%, calculated using a fraction, the numerator of which is the number of Common Shares described in footnote (1) above and the denominator of which is 77,851,201 (calculated by adding the 68,156,582 Common Shares outstanding as of October 31, 2018, as reported in the Issuer’s Form 10-K, filed November 20, 2018, plus the number of Common Shares described in clause (i) of footnote (1) above).

 

2

 

 

(1)	The total number of Common Shares reported includes (i) on an as-converted basis (based on the initial conversion price of $41.26, as adjusted), 9,694,619 Common Shares that are issuable upon the conversion, at the option of the holder, of 400,000 Preferred Shares that, as of the date hereof, are held directly by CD&R Holdings and (ii) 314,400 Common Shares acquired by CD&R Holdings on August 9, 2018. Each Preferred Share is entitled to vote with holders of the Common Shares on an as-converted basis, based on the initial conversion price of $41.26, as adjusted, and accrued dividends through the date of conversion. All of these Common Shares may be deemed to be beneficially owned by CD&R Holdings GP.
(2)	CD&R Holdings’ voting percentage is 12.86%, calculated using a fraction, the numerator of which is the number of Common Shares described in footnote (1) above and the denominator of which is 77,851,201 (calculated by adding the 68,156,582 Common Shares outstanding as of October 31, 2018, as reported in the Issuer’s Form 10-K, filed November 20, 2018, plus the number of Common Shares described in clause (i) of footnote (1) above).

 

3

 

EXPLANATORY NOTE

 

PREAMBLE

 

This Amendment No. 1 amends the Statement on Schedule 13D (“Schedule 13D”) initially filed on January 2, 2018 with the Securities and Exchange Commission by (i) CD&R Boulder Holdings, L.P., a Cayman Islands exempted limited partnership (“CD&R Holdings”), and (ii) CD&R Investment Associates IX, Ltd. (“CD&R Holdings GP”) (together with CD&R Holdings, collectively, the “Reporting Persons”).

 

Item 3.                             Source and Amount of Funds or Other Consideration

 

Item 3 of the Schedule 13D  is hereby amended and supplemented by inserting the following at the end thereof.

 

The purchase of Common Shares contemplated to be made by CD&R Holdings pursuant to the Agreement (as defined below) is expected to be made using one of more of the Reporting Person’s or their respective affiliates’ cash on hand from capital contributions from its partners.  The amount of funds to be used in making purchases of Common Shares pursuant to the Agreement (as defined below in “Item 4. Purpose of Transaction.”) will depend on the number of Common Shares purchased pursuant the Agreement from time to time, and will be disclosed in subsequent amendments to this Schedule 13D.

 

Item 4.                             Purpose of Transaction

 

Item 4 of the Schedule 13D is hereby amended and supplemented by deleting the first, third and sixth paragraphs thereof in their entirety and replacing them as follows.

 

The information set forth in Item 6 hereof is hereby incorporated by reference into this Item 4.

 

The Reporting Persons beneficially own an aggregate of 400,000 Preferred Shares (acquired on January 2, 2018) and 314,400 Common Shares (acquired on August 9, 2018).  Such Preferred Shares may be converted at any time at the option of the holder into 9,694,619 Common Shares which, collectively with 314,400 Common Shares acquired on August 9, 2018, represent approximately 12.86% of the Issuer’s outstanding Common Shares (as of October 31, 2018 and assuming no adjustment to the initial conversion price of $41.26 per share).  See “Item 5. Interest in Securities of the Issuer.”

 

On November 20, 2018, the Reporting Persons entered into a letter agreement (the “Letter Agreement”) with the Issuer pursuant to which the Issuer consented to the acquisition by the CD&R Group (as defined in the Letter Agreement) of additional Common Shares, in open market purchases or through the use of forward purchase agreements or similar programs with third party financial institutions, provided that the number of Common Shares so acquired by the CD&R Group, when taken together with all other Common Shares beneficially owned (directly or indirectly) by the CD&R Group and the number of Common Shares issuable upon conversion of the Preferred Shares beneficially owned (directly or indirectly) by the CD&R Group, does not exceed 30% of the sum of the total number of outstanding Common Shares and the number of Common Shares issuable upon conversion of the Preferred Shares beneficially owned (directly or indirectly) by the CD&R Group, determined based on the most recent public filing by the Issuer prior to the date of the relevant acquisition of Common Shares by the CD&R Group.

 

On November 20, 2018, CD&R Holdings entered into an arrangement (the “Agreement”) with Credit Suisse Capital LLC (“CS”), represented by Credit Suisse Securities (USA) LLC, pursuant to which CD&R Holdings has agreed to purchase additional Common Shares from CS, as described in further detail in Item 6 below. The Agreement is intended to comply with the requirements of Rule 10b5-1(c)(1) under the Securities Exchange Act of 1934, as amended.

 

4

 

Item 5.                             Interest in Securities of the Issuer.

 

Item 5 of the Schedule 13D is hereby amended by deleting paragraphs (a)(i) and (c) in their entirety and replacing them as follows.

 

(a)                                 (i)                                     CD&R Holdings is the beneficial owner of 10,009,019 Common Shares on an as-converted basis. 9,694,619 of such Common Shares are issuable upon conversion (based on an initial conversion price of $41.26, as adjusted), at the option of the holder, of the 400,000 Preferred Shares that, as of the date hereof, are held directly by CD&R Holdings.  314,400 of such Common Shares were acquired by CD&R Holdings on August 9, 2018 and are, as of the date hereof, held directly by CD&R Holdings Taking into account this beneficial ownership, CD&R Holdings’ voting interest is approximately 12.86% of the voting power of the Issuer, based on (x) an initial conversion price of $41.26 with respect to the Preferred Shares and (y) 68,156,582 Common Shares outstanding as of October 31, 2018, as reported in the Issuer’s Form 10-K, filed November 20, 2018.

 

(c)                                  Except as set forth herein, each of the Reporting Persons reports that neither it, nor to its knowledge, any other person named in Item 2 of this Schedule 13D, has effected any transactions in Common Shares or Preferred Shares during the past 60 days.

 

Item 6.                             Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

 

Item 6 of the Schedule 13D is hereby amended and supplemented by adding the following at the end thereof.

 

Letter Agreement and Agreement

 

Pursuant to the Letter Agreement, the Issuer has consented to the acquisition by the CD&R Group (as defined in the Letter Agreement) of additional Common Shares, in open market purchases or through the use of forward purchase agreements or similar programs with third party financial institutions, provided that the number of Common Shares so acquired by the CD&R Group, when taken together with all other Common Shares beneficially owned (directly or indirectly) by the CD&R Group and the number of Common Shares issuable upon conversion of the Preferred Shares beneficially owned (directly or indirectly) by the CD&R Group, does not exceed 30% of the sum of the total number of outstanding Common Shares and the number of Common Shares issuable upon conversion of the Preferred Shares beneficially owned (directly or indirectly) by the CD&R Group, determined based on the most recent public filing by the Issuer prior to the date of the relevant acquisition of Common Shares by the CD&R Group.  In addition, the CD&R Group is restricted from transferring any Common Shares it beneficially owns to certain prohibited transferees, including persons who beneficially own five percent (5%) or more of any class or series (or the voting power of any class or series) of equity of the Issuer, certain specified competitors and certain potential activist investors, subject to specified exceptions.

 

On November 20, 2018, CD&R Holdings and CS entered into the Agreement pursuant to which CD&R Holdings has agreed to purchase Common Shares from CS, as herein described.  Pursuant to the Agreement, CD&R Holdings and CS have entered into three supplemental confirmations to provide for the purchase from time to time by CD&R Holdings from CS of a number of Common Shares to be determined pursuant to formulas specified in the Agreement and such supplemental confirmations.  The aggregate number of such Common Shares will be an amount that, when taken together with the total number of Common Shares beneficially owned by CD&R Holdings, including Common Shares issuable upon conversion of Preferred Shares held by CD&R Holdings (collectively, “CD&R Shares”), will not cause the total number of CD&R Shares to exceed 29.99% of the sum of the total number of outstanding Common Shares and the number of Common Shares issuable upon conversion of the Preferred Shares beneficially owned by CD&R Holdings, determined based on the most recent public filing filed by the Issuer prior to the date of the relevant acquisition.  CS will have exclusive beneficial ownership and control over any such Common Shares held by CS or its affiliates as hedge positions with respect to the Agreement until such Common Shares are delivered to CD&R Holdings.  The Agreement

 

5

 

provides that, subject to the terms and conditions of the Agreement, CS will deliver specified portions of the Common Shares to be purchased under the Agreement (each, a “Tranche”) to CD&R Holdings following the relevant valuation date for such Tranche, as determined under the Agreement and the related supplemental confirmations; provided that the delivery of the aggregate number of Common Shares to be purchased under the Agreement will not occur later than May 14, 2019, subject to potential postponement under certain circumstances.

 

The purchase price for the Common Shares to be delivered by CS pursuant to the Agreement will be determined based on a formula set forth in the Agreement and the related supplemental confirmations, and will be disclosed in subsequent amendments to this Schedule 13D to be filed following determinations of the purchase price and delivery of Common Shares to CD&R Holdings.

 

The foregoing description of the Letter Agreement and the Agreement and the transactions contemplated thereby and as described herein do not purport to be complete and are subject to, and qualified in its entirety by, the full text of each of such agreements, which are filed as Exhibit 99.4 and Exhibit 99.5 hereto and are incorporated herein by reference.

 

Item 7.                             Material to be Filed as Exhibits.

 

Exhibit Number		Description of Exhibit
1		Exhibit 99.4 — Letter Agreement, dated November 20, 2018, between CD&R Holdings, Beacon Roofing Supply, Inc. and (solely for the purposes described therein) Clayton, Dubilier & Rice Fund IX, L.P. (incorporating by reference to Exhibit 10.1 of the Current Report on Form 8-K of Beacon Roofing Supply, Inc. filed on November 21, 2018)
2		Exhibit 99.5 — Agreement, dated November 20, 2018, between CD&R Holdings and CS, together with the related supplemental confirmations delivered under the Agreement on November 20, 2018 (certain information in this Exhibit has been redacted and filed separately with the Securities and Exchange Commission, and confidential treatment has been requested with respect to such omitted information)

 

6

 

SIGNATURES

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

Dated: November 21, 2018

 

 

	CD&R BOULDER HOLDINGS, L.P.
	By:	CD&R Investment Associates IX, Ltd.,
		its general partner
		By:	/s/ Theresa A. Gore
			Name: Theresa A. Gore
			Title: Vice President, Treasurer and Assistant Secretary
	CD&R INVESTMENT ASSOCIATES IX, Ltd.
		By:	/s/ Theresa A. Gore
			Name: Theresa A. Gore
			Title: Vice President, Treasurer and Assistant Secretary

 

7

 

SCHEDULE A

 

The business address for each of the persons listed below is c/o Clayton, Dubilier & Rice, LLC, 375 Park Avenue, 18th Floor, New York, New York 10152, and the business telephone number of each such person is 212-407-5200.

 

 

8

Exhibit 99.5

 

November 20, 2018

 

To:                                                                             CD&R Boulder Holdings, L.P.

c/o Clayton, Dubilier & Rice, LLC

375 Park Avenue, 18th Floor

New York, NY 10152

Attention: Nathan K. Sleeper, JL Zrebiec

Fax: (212) 407-5252

Email: nsleeper@cdr-inc.com, jzrebiec@cdr-inc.com

 

From:                                                               Credit Suisse Capital LLC

c/o Credit Suisse Securities (USA) LLC

Eleven Madison Avenue

New York, NY 10010

Attention: Tucker Martin

Telephone: (212) 325-9182

Facsimile: (212) 743-3661

 

Re:                                                                             Share Purchase Transactions

 

External ID: [           ] - Risk ID: [                ]

 

Dear Sirs and Mesdames,

 

This master confirmation (this “Master Confirmation”) sets forth the terms and conditions of certain share purchase transactions (each, a “Transaction”) entered into from time to time between CD&R Boulder Holdings, L.P. (“Counterparty”) and Credit Suisse Capital LLC (“CS”), represented by Credit Suisse Securities (USA) LLC (“Agent”) as its agent.  This Master Confirmation, taken alone, is neither a commitment by either party to enter into any Transaction nor evidence of a Transaction.  The additional terms of any particular Transaction shall be set forth in a Supplemental Confirmation in the form of Schedule A hereto (a “Supplemental Confirmation”), which shall reference this Master Confirmation and supplement, form a part of and be subject to this Master Confirmation.  This Master Confirmation and each Supplemental Confirmation together shall constitute a “Confirmation” under the Agreement specified below.

 

1.                                      The definitions and provisions contained in the 2002 ISDA Equity Derivatives Definitions, as published by the International Swaps and Derivatives Association, Inc. (the “Equity Definitions”) are incorporated into this Master Confirmation.  The Transaction shall be deemed to be a “Share Forward Transaction” for purposes of the Equity Definitions.  This Master Confirmation and each Supplemental Confirmation evidence a complete and binding agreement between Counterparty and CS as to the terms of each Transaction to which this Master Confirmation and such Supplemental Confirmation relate.

 

This Master Confirmation and each Supplemental Confirmation supplement, form parts of and are subject to an agreement (the “Agreement”) in the form of the ISDA 2002 Master Agreement as if CS and Counterparty had executed an agreement in such form on the date of this Master Confirmation (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, (ii) the election that the “Cross Default” provisions of Section 5(a)(vi) shall apply to each of CS and Counterparty as if (x) the phrase “, or becoming capable at such time of being declared,” were deleted from Section 5(a)(vi)(1) of the Agreement and (y) the “Threshold Amount” with respect to CS were 3% of the stockholders’ equity of Credit Suisse Group AG and the “Threshold Amount” with respect to Counterparty were USD 25 million (provided that the following language shall be added to the end of such Section 5(a)(vi): “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

 

 

two Local Business Days of such party’s receipt of written notice of its failure to pay.”), and (iii) the election that in relation to Counterparty, Clayton, Dubilier & Rice Fund IX, L.P. (“Parent”) shall be a Credit Support Provider and the guarantee of the Parent dated as of the date of this Master Confirmation shall be a Credit Support Document).  All provisions contained in the Agreement govern this Master Confirmation and each Supplemental Confirmation except as expressly modified below or in the related Supplemental Confirmation. If there is any inconsistency among the Agreement, this Master Confirmation, any Supplemental Confirmation and the Equity Definitions, the following will prevail in the order of precedence indicated: (i) such Supplemental Confirmation, (ii) this Master Confirmation; (iii) the Equity Definitions; and (iv) the Agreement.

 

2.                                      Each Transaction constitutes a Share Forward Transaction for the purposes of the Equity Definitions. Set forth below are the terms and conditions that, together with the terms and conditions set forth in the Supplemental Confirmation relating to any Transaction, shall govern such Transaction.

 

General Terms:
Trade Date:		November 20, 2018.
Effective Date:		For each Transaction, as set forth in the related Supplemental Confirmation.
Buyer:		Counterparty
Seller:		CS
Issuer:		Beacon Roofing Supply, Inc.
Shares:		The common stock, par value USD0.01, of Issuer (Exchange symbol: BECN)
Exchange:		The Nasdaq Global Select Market
Related Exchange:		All Exchanges
Prepayment / Variable Obligation:		Not Applicable
Settlement Terms:
Physical Settlement:		Applicable. With respect to any Shares delivered by CS under the Transaction, the Representation and Agreement contained in Section 9.11 of the Equity Definitions shall be modified by excluding any representations therein relating to restrictions, obligations, limitations or requirements under applicable securities laws that would arise if Counterparty were an “affiliate” of Issuer (as such term is used in the Securities Act of 1933, as amended (the “Securities Act”)).
Number of Shares:		For each Transaction, as set forth in the related Supplemental Confirmation; provided that if a Downsize Event (as defined below) occurs, the Number of Shares shall be a number of Shares (rounded down to the nearest whole number of Shares) equal to (A) the product of (x) the original Number of Shares and (y)(i) the number of Scheduled Trading Days that are not Disrupted Days in full during the Calculation Period minus (ii)

 

 

		the number of Disregarded Days during the Calculation Period divided by (B) the number of Scheduled Trading Days from, and including, the Effective Date for such Transaction to, and including, the Original Scheduled Date without giving effect to any extension pursuant to the proviso in Original Scheduled Date.
Calculation Period:		The period commencing on and including the Scheduled Trading Day immediately following the Effective Date and ending on but excluding the Valuation Date.
Settlement Date:		For each Transaction, as set forth in the related Supplemental Confirmation.
Valuation Date:		The earlier of (x) the Original Scheduled Date and (y) the Accelerated Valuation Date.
Original Scheduled Date:		For each Transaction, as set forth in the related Supplemental Confirmation; provided the Original Scheduled Date shall be automatically extended by a number of Scheduled Trading Days equal to the number of Disregarded Days during the Calculation Period but in no case later than the Cutoff Date and as provided in “Valuation Disruption” below. For the avoidance of doubt, in no event shall the Original Scheduled Date be later than the Cutoff Date.
Cutoff Date:		For each Transaction, the date that is the 30th Scheduled Trading Day following the Original Scheduled Date.
Downsize Event:		For each Transaction, a “Downsize Event” shall occur if CS or its affiliate do not finish establishing CS’ Hedge Position in respect of the original Number of Shares under such Transaction by the close of the regular trading session on the Exchange on the Cutoff Date.
Accelerated Valuation Date:		Any Exchange Business Day on or after the First Accelerated Valuation Date designated by CS in its sole discretion by notice to Counterparty prior to 11:59 p.m. (New York City time) on the Exchange Business Day immediately following the designated Accelerated Valuation Date.
		For the avoidance of doubt, CS’ designation of the Accelerated Valuation Date will apply only with respect to the Transaction or Transactions specified in such notice and will not apply to any outstanding Transaction not so specified.
First Accelerated Valuation Date:		For each Transaction, as set forth in the related Supplemental Confirmation.
Condition Satisfaction Date:		The date on which the on which each of the following shall have occurred (or, if such date is not a Scheduled Trading Day, the immediately following Scheduled Trading Day following such date): (w) Counterparty and the Issuer shall have filed the information required under section 114(1) of the

 

 

		Competition Act (Canada) R.S.C, 1985, c. C-34, as amended (the “Competition Act”), (x) Counterparty shall have filed a request for an advance ruling certificate pursuant to section 102 of the Competition Act, (y) the applicable waiting period under section 114 shall have expired, been terminated or waived, and (z) the Commissioner of Competition appointed under subsection 7(1) of the Competition Act (including any person designated by the Commissioner to act on his behalf) shall have issued an advance ruling certificate or no-action letter confirming that he does not, at that time, intend to make an application under section 92 of the Competition Act in respect of the Transactions contemplated hereby.
Number of Shares to be Delivered:		For each Transaction, the Number of Shares as set forth in the related Supplemental Confirmation.
Forward Price:		An amount equal to (I) the product of (A)(i) the arithmetic average of the Daily VWAPs for the Scheduled Trading Days in the Calculation Period, other than any Scheduled Trading Day that is a Disregarded Day, subject to “Valuation Disruption” below, minus (ii) the Forward Price Adjustment Factor and (B) the sum of 1 plus the Forward Fee minus (II) the aggregate amount of any Extraordinary Dividends paid on the Shares constituting CS’ Hedge Position as of the open of business on the ex-dividend date for such Extraordinary Dividend divided by the Number of Shares.
Disregarded Day:		A Scheduled Trading Day (i) for which the Daily VWAP for such Scheduled Trading Day exceeds the Disregarded Day Price and (ii) that is not a Disrupted Day in full, in each case, as determined by the Calculation Agent.
Disregarded Day Price:		For each Transaction, as set forth in the related Supplemental Confirmation.
Forward Fee:		For each Transaction, as set forth in the related Supplemental Confirmation.
Daily VWAP:		For each Exchange Business Day, as determined by the Calculation Agent based on the volume-weighted average price at which the Shares trade as reported in the composite transactions for U.S. exchanges and quotation systems, during the regular trading session for the Exchange on such Exchange Business Day, excluding (i) trades that do not settle regular way, (ii) opening (regular way) reported trades in the consolidated system on such Exchange Business Day, (iii) trades that occur in the last ten minutes before the scheduled close of trading on the Exchange on such Exchange Business Day and ten minutes before the scheduled close of the primary trading in the market where the trade is effected, and (iv) trades on such Exchange Business Day that do not satisfy the requirements of Rule 10b-18(b)(3) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), 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 Exchange Business Day, on Bloomberg page “BECN <Equity> AQR_SEC” (or any successor thereto), or if such price is not so reported on such Exchange Business Day for any reason or is, in the Calculation Agent’s determination, erroneous, such Daily VWAP shall be as determined by the Calculation Agent. For purposes of calculating the Daily VWAP, the Calculation Agent will only include those trades (collectively, “Rule 10b-18 Eligible Transactions”) that (x) do not constitute trades described in clauses (i) to (iv) above and (y) are reported during the period of time in which Counterparty could purchase the Shares in compliance with Rule 10b-18(b)(2) as if it were an “affiliated purchaser” (as defined in Rule 10b-18 under the Exchange Act) of the Issuer and are effected pursuant to the conditions of Rule 10b-18(b)(3), each under the Exchange Act.
Forward Price Adjustment Factor:		For each Transaction, as set forth in the related Supplemental Confirmation.
Valuation Disruption:		If a Disrupted Day occurs during the Calculation Period, the Calculation Agent may, by written notice to Counterparty, postpone the Original Scheduled Date by up to one Scheduled Trading Day for each such Disrupted Day. If any such Disrupted Day is a Disrupted Day because of a Market Disruption Event, the Calculation Agent shall also determine whether any such Disrupted Day (i) is a Disrupted Day in full, in which case the Daily VWAP for such Disrupted Day shall not be included for purposes of determining the Forward Price, or (ii) is a Disrupted Day only in part, in which case the Daily VWAP for such Disrupted Day shall be determined by the Calculation Agent based on Rule 10b-18 Eligible Transactions in the Shares on such Disrupted Day effected before the relevant Market Disruption Event occurred and/or after the relevant Market Disruption Event ended (in each case, as determined by the Calculation Agent), and the weighting of the Daily VWAP for the relevant Exchange Business Day shall be adjusted in a commercially reasonable manner by the Calculation Agent for purposes of determining the Forward Price with such adjustments taking into account the duration of any Market Disruption Event and the volume, historical trading patterns and price of the Shares.
		Any Exchange Business Day on which, as of the Trade Date, the Exchange is scheduled to close prior to its normal close of trading shall be deemed not to be an Exchange Business Day; if a closure of the Exchange prior to its normal close of trading on any Exchange Business Day is scheduled following the date hereof, then such Exchange Business Day shall be deemed to be a Disrupted Day in full.

 

 

		If a Disrupted Day occurs during the Calculation Period, and each of the nine immediately following Scheduled Trading Days is a Disrupted Day (a “Disruption Event”), then the Calculation Agent may (x) deem such ninth Scheduled Trading Day to be an Exchange Business Day that is not a Disrupted Day and determine the Daily VWAP for such ninth Scheduled Trading Day using its good faith estimate of the value of the Shares on such ninth Scheduled Trading Day based on the volume, historical trading patterns and price of the Shares and such other factors as it deems appropriate, (y) deem such Disruption Event (and each consecutive Disrupted Day thereafter) to be a Potential Adjustment Event and/or (z) deem such Disruption Event to be an Additional Termination Event in respect of such Transaction, with Counterparty as the sole Affected Party and such Transaction as the sole Affected Transaction.
		The Calculation Agent (x) shall use commercially reasonable efforts to notify the parties of any Disrupted Day as promptly as practicable (not later than three Local Business Days following such Disrupted Day) and (y) shall use good faith efforts to notify the parties of any determination pursuant to these Valuation Disruption provisions of (i) whether any Disrupted Day is a Disrupted Day in full or a Disrupted Day in part and (ii) the Daily VWAP for any Disrupted Day in part as promptly as practicable, but no later than the third Local Business Day following the last consecutive affected Exchange Business Day.
Market Disruption Events:		Section 6.3(a) of the Equity Definitions is hereby amended (A) by deleting the words “during the one hour period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be” in clause (ii) thereof, and (B) by replacing the words “or (iii) an Early Closure.” therein with “(iii) an Early Closure, or (iv) a Regulatory Disruption.”
		Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the term “Scheduled Closing Time” in the fourth line thereof.
Regulatory Disruption:		Any event that CS or its affiliates (collectively, “Credit Suisse”), based upon the advice of nationally recognized outside counsel, determines in good faith and in a commercially reasonable manner that it is appropriate with regard to any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Credit Suisse), applied generally by Credit Suisse in the relevant business on a non-discriminatory basis, for Credit Suisse to refrain from or decrease any market activity in connection with the relevant Transaction. CS shall promptly notify Counterparty upon exercising its rights pursuant to this provision and shall

 

 

			subsequently notify Counterparty in writing on the day CS reasonably believes in good faith and upon the advice of counsel that it may resume its market activity.
Share Adjustments:
Method of Adjustment:			Calculation Agent Adjustment
Extraordinary Dividend:			Any cash 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:
New Shares:			In the definition of New Shares in Section 12.1(i) of the Equity Definitions, the text in clause (i) 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)”.
Consequences of Merger Events:
(a)	Share-for-Share:		Modified Calculation Agent Adjustment
(b)	Share-for-Other:		Cancellation and Payment
(c)	Share-for-Combined:		Component Adjustment
Tender Offer:			Applicable; provided that for purposes of Section 12.3(d) of the Equity Definitions, references in the definition of “Tender Offer” in the Equity Definitions to “10%” shall be replaced with 30%. For the avoidance of doubt, the Transactions entered into by Counterparty hereunder shall not constitute a Tender Offer.
Consequences of Tender Offer:
(a)	Share-for-Share:		Modified Calculation Agent Adjustment
(b)	Share-for-Other:		Modified Calculation Agent Adjustment
(c)	Share-for-Combined:		Modified Calculation Agent Adjustment
Announcement Event:			If an Announcement Date occurs in respect of any event or transaction that would, if consummated, lead to (i) a Merger Event (for the avoidance of doubt, determined without regard to the language in the definition of “Merger Event” following the definition of “Reverse Merger” therein) or a Tender Offer, (ii) the sale or transfer of all or substantially all of the assets of Issuer, (iii) any acquisition by Issuer or any of its subsidiaries where the estimated value of the aggregate consideration transferable by Issuer or its subsidiaries exceeds 50% of the

 

 

		market capitalization of Issuer, in each case, as determined by the Calculation Agent as of a date, on or after the first related Announcement Date, reasonably selected by the Calculation Agent or (iv) any lease, exchange, transfer, disposition (including, without limitation, by way of spin-off or distribution) of assets (including, without limitation, any capital stock or other ownership interests or other ownership interest in Issuer’s subsidiaries) or other similar event by Issuer or any of its subsidiaries where the estimated value of the aggregate consideration transferable to or receivable by Issuer or its subsidiaries exceeds 50% of the market capitalization of the Issuer, in each case as determined by the Calculation Agent as of a date, on or after the first related Announcement Date, reasonably selected by the Calculation Agent (such occurrence, an “Announcement Event” and a transaction described in clauses (ii) through (iv), a “Significant Transaction”), as determined by the Calculation Agent, then CS may elect that the “Consequences of Announcement Events” set forth below shall apply in respect of such Announcement Event.
Announcement Date:		The definition of “Announcement Date” in Section 12.1(l) of the Equity Definitions is hereby amended by replacing clauses (i) and (ii) with the following: “(i) in the case of a Merger Event or a Significant Transaction, the date of the first public announcement by any entity of any intention to engage in or to explore the possibility of engaging in a transaction (whether or not subsequently amended) that would, if consummated, lead to a Merger Event or a Significant Transaction, as determined by the Calculation Agent, (ii) in the case of a Tender Offer, the date of the first public announcement by any entity of any intention to purchase or otherwise obtain or to explore the possibility of purchasing or otherwise obtaining the requisite number of voting shares or Shares (whether or not subsequently amended) that would, if consummated, lead to a Tender Offer, as determined by the Calculation Agent (or, in the case of either clause (i) or (ii), any subsequent public announcement of a withdrawal, discontinuation, termination or other change to such transaction or intention),”.
Consequences of Announcement Events:		With respect to any Announcement Event, the Calculation Agent will determine the economic effect of such Announcement Event on the theoretical value of the Transaction (and may take into account, without limitation, any change in volatility, expected dividends, correlation, stock loan rate or liquidity relevant to the Shares or to such Transaction) and (i) the Calculation Agent will adjust the terms of such Transaction to reflect such economic effect to CS and determine the effective date of such adjustment or (ii) if the Calculation Agent determines, on or after the Announcement Date, that no adjustment it could make under clause (i) above is likely to produce a commercially reasonable result, notify the parties that such Transaction will

 

 

			be terminated, in which case the amount payable upon such termination will be determined by CS pursuant to the terms of this Master Confirmation as if such Announcement Event were an Extraordinary Event to which Cancellation and Payment were applicable. For the avoidance of doubt, any such adjustment shall be without prejudice to the application of the provisions set forth in the preceding sentence, “Consequences of Merger Events” and/or “Consequences of Tender Offers” with respect to any other Announcement Date in respect of the same event or transaction, or, if the related Merger Date or Tender Offer Date occurs on or prior to the Valuation Date or earlier date of termination or cancellation, with respect to the related Merger Event or Tender Offer; provided that any such adjustment shall be taken into account by the Calculation Agent or the Determining Party, as the case may be, in determining any subsequent adjustment to the terms of such Transaction, or in subsequently determining any Cancellation Amount or an Early Termination Amount, as the case may be, on account of any related Announcement Date, Merger Event or Tender Offer.
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 Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Market or The NASDAQ Global Select 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.
Additional Disruption Events:
(a)	Change in Law:		Applicable; provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended (i) by replacing the phrase “the interpretation” in the third line thereof with the phrase “, or public announcement of, the formal or informal interpretation”, (ii) by replacing the word “Shares” where it appears in clause (X) thereof with the words “Hedge Position”, (iii) by immediately following the word “Transaction” in clause (X) thereof, adding the phrase “in the manner contemplated by the Hedging Party on the Trade Date” and (iv) by replacing the parenthetical beginning after the word “regulation” in the second line thereof with the phrase “(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)”; provided, that any determination to be made by Hedging Party shall be made in good faith and to the extent applicable, in a manner consistent with the requirements, policies or procedures of Hedging Party that are generally applicable in similar situations and applied to the Transaction in a non-

 

 

			discriminatory manner and in a consistent manner to similarly affected transactions generally.
(b)	Insolvency Filing:		Applicable
(c)	Hedging Disruption:		Applicable; provided that Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line thereof, after the words “to terminate the Transaction”, the words “or a portion of the Transaction affected by such Hedging Disruption”.
(d)	Increased Cost of Hedging:		Applicable
Hedging Party:			For all applicable events, CS
Determining Party:			For all applicable events, CS
			For the avoidance of doubt, in its capacity as a Hedging Party and Determining Party, CS shall, when making any determination or calculation, act in good faith in a commercially reasonable manner, and to the extent applicable, in a manner consistent with the requirements, policies or procedures of CS that are generally applicable in similar situations and applied to transactions that are similar to the Transaction in a non-discriminatory manner; and upon request from Counterparty, CS shall as promptly as commercially practicable provide Counterparty with a written explanation describing in reasonable detail any determination or calculation made by CS as Hedging Party or Determining Party (but without disclosing CS’ proprietary models or other information that may be proprietary or subject to a contractual, legal or regulatory obligations to not disclose such information).
Calculation Agent:			CS; provided that, following the occurrence of an Event of Default of the type described in Section 5(a)(vii) of the Agreement with respect to which CS is the Defaulting Party, Counterparty shall have the right to designate a nationally recognized third-party dealer in over-the-counter corporate equity derivatives to act, during the period commencing on the date such Event of Default occurred and ending on the Early Termination Date with respect to such Event of Default, as the Calculation Agent with respect to the Transactions under this Master Confirmation. CS shall bear the costs and expenses incurred by Counterparty in connection with the replacement of CS as Calculation Agent.
			Following any determination or calculation by the Calculation Agent hereunder, upon a request by Counterparty, the Calculation Agent shall promptly (but in any event within five Scheduled Trading Days) provide to Counterparty by e-mail to the email address provided by Counterparty in such request a report (in a commonly used file format for the storage and manipulation of financial data) displaying in reasonable detail

 

 

			the basis for such determination or calculation (including any assumptions used in making such determination or calculation), it being understood that the Calculation Agent shall not be obligated to disclose any proprietary or confidential models used by it for such determination or calculation or any information that may be proprietary or confidential or subject to a contractual, legal or regulatory obligation not to disclose such information.  Whenever the Calculation Agent is required or permitted to exercise discretion in any way, it will do so in good faith and in a commercially reasonable manner.
Non-Reliance:			Applicable
Agreements and Acknowledgments Regarding Hedging Activities:			Applicable
Additional Acknowledgments:			Applicable

 

3.                                      Additional Provisions Relating to Transactions in the Shares.

 

(a)                                 Counterparty acknowledges and agrees that CS or its Affiliates may, during the period from and including the Effective Date for any Transaction to and including the earlier of (i) the Original Scheduled Date and (ii) the date 2 Exchange Business Days immediately following any Accelerated Valuation Date (the “Relevant Period”), purchase Shares or enter into other hedging transactions in connection with such Transaction, but that CS is under no obligation to do so.  Any such purchases or other transactions will be conducted independently of Counterparty.  The timing of any such purchases or other transactions by CS or its Affiliates, the number of Shares purchased or volume or terms of other transactions effected by CS or its Affiliates on any day, the price paid per Share pursuant to such purchases or other transactions and the manner in which such purchases are made or such other transactions are executed, including without limitation whether such purchases or other transactions are made on any securities exchange or privately, shall be within the absolute discretion of CS or its Affiliates.  CS or its Affiliates shall make all purchases in connection with any Transaction in accordance with applicable law.

 

(b)                                 During the Relevant Period, without the prior written consent of CS, Counterparty and its Affiliates shall not, directly or indirectly (including, without limitation, by means of a cash-settled or other derivative instrument with a hedging, averaging, valuation or similar relevant period that overlaps with the Relevant Period) purchase or sell, offer to purchase or sell, place any bid or limit order that would effect a purchase or sale of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable for Shares.

 

4.                                      Additional Representations, Warranties and Agreements.

 

(a)                                 In addition to the representations, warranties and agreements in the Agreement and those contained elsewhere in this Confirmation, Counterparty represents and warrants to and for the benefit of, and agrees with, CS as of the Trade Date for each Transaction as follows:

 

(i)                                     Neither Counterparty nor Parent is aware of any material nonpublic information regarding Issuer or the Shares.

 

(ii)                                  Counterparty is not entering into such Transaction to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for

 

 

Shares) in violation of the Exchange Act.

 

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

 

(iv)                              Counterparty is in compliance in all material respects with its reporting requirements under Sections 13 and 16(a) of the Exchange Act in respect of the Shares, and Counterparty shall comply in all material respects with such reporting requirements in respect of such Transaction.

 

(v)                                 Counterparty is not an “affiliated purchaser” of the Issuer as such term is used in Rule 10b-18 under the Exchange Act.

 

(vi)                              Without limiting any representation contained in Section 3(a)(iii) of the Agreement, (A) the execution, delivery and performance of this Master Confirmation, any Credit Support Document, the related Supplemental Confirmation and any other documentation relating to the Agreement to which Counterparty or any of its Affiliates is a party do not violate or conflict with any of the terms or provisions of any stockholders’ agreement, investment agreement, lockup agreement, registration rights agreement, confidentiality agreement or other agreement binding on Counterparty or its Affiliates or affecting Counterparty, its Affiliates or any of their respective assets and (B) such Transaction, nor the taking of any action hereunder or in connection herewith, shall violate any corporate policy of the Issuer (including, but not limited to, any window period policy) or other rules or regulations of the Issuer applicable to Counterparty or any of its Affiliates, in each case, other than restrictions with respect to which Counterparty has obtained the necessary approval, consent or waiver in the form of Exhibit A hereto (the “Issuer Consent”).

 

(vii)                           There are no contractual, legal, regulatory or other restrictions applicable to such Transaction contemplated hereby other than the occurrence of the Condition Satisfaction Date (as applicable) and the Issuer Consent.

 

(viii)                        Counterparty will promptly notify CS upon the occurrence of the Condition Satisfaction Date and will certify as to the occurrence of the Condition Satisfaction Date prior to the Settlement Date of each Transaction that is subject to the occurrence of the Condition Satisfaction Date.

 

(b)                                 Each of CS and Counterparty represents and warrants to the other as of the Trade Date for each Transaction that it is an “eligible contract participant” as defined in Section 1a(18) of the U.S. Commodity Exchange Act, as amended, and is a “qualified investor” as that term is defined in the Exchange Act.

 

(c)                                  Counterparty acknowledges that the offer and sale of each Transaction to it is intended to be exempt from registration under the Securities Act by virtue of Section 4(a)(2) thereof.  Accordingly, Counterparty represents and warrants to CS as of the Trade Date for each Transaction 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 in Regulation D as promulgated under the Securities Act, (iii) it is entering into such Transaction for its own account and without a view to the distribution or resale thereof, and (iv) the assignment, transfer or other disposition of such Transaction has not been and will not be registered under the Securities Act and is restricted under the Agreement, the Securities Act and state securities laws.

 

(d)                                 Counterparty acknowledges that CS has informed Counterparty that CS is a “financial institution” and a “financial participant” within the meaning of Sections 101(22), 101(53C) and 101(22A) of Title 11 of the Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”).  The parties hereto further agree and acknowledge that it is the intent of the parties that this Master Confirmation and any related Supplemental Confirmation constitute a “securities contract,” as such term is defined in Section 741(7) of the Bankruptcy Code, with respect to which each payment and delivery hereunder or in

 

 

connection with the related Transaction is a “termination value,” “payment amount” or “other transfer obligation” within the meaning of Section 362 of the Bankruptcy Code and a “settlement payment,” within the meaning of Section 546 of the Bankruptcy Code and (B) CS is entitled to the protections afforded by, among other sections, Sections 362(b)(6), 362(o), 546(e), 548(d)(2), 555 and 561 of the Bankruptcy Code.

 

(e)                                  It is the intent of the parties that each Transaction hereunder comply with the requirements of Rule 10b5-1(c)(1)(i)(B) under the Exchange Act, and the parties agree that this Master Confirmation and each Supplemental Confirmation shall be interpreted to comply with the requirements of Rule 10b5-1.  Without limiting the generality of the preceding sentence, Counterparty acknowledges and agrees that, subject to the obligations of CS and its Affiliates set forth in Section 3(a) hereof, (A) Counterparty does not have, and shall not attempt to exercise, any influence over how, when or whether CS effects any purchases of Shares or enters into any other hedging transactions in connection with such Transaction, (B) during the Relevant Period, neither Counterparty nor its officers or employees shall, directly or indirectly, communicate any material nonpublic information regarding Issuer or the Shares to any employee of CS or its Affiliates that Counterparty reasonably believes to be responsible for trading the Shares or executing any hedging transactions in connection with the Transaction contemplated hereby, (C) Counterparty is entering into such Transaction in good faith and not as part of a plan or scheme to evade compliance with federal securities laws including, without limitation, Rule 10b-5 under the Exchange Act and (D) Counterparty will not “alter or deviate” from this Master Confirmation or any Supplemental Confirmation in a manner that would cause such purchases hereunder not to be “pursuant to a contract, instruction, or plan” (within the meaning of Rule 10b5-1(c)(1)(i)(C)) or enter into or alter a “corresponding or hedging transaction or position” (within the meaning of Rule 10b5-1(c)(1)(i)(C)) with respect to the Shares.  Counterparty also acknowledges and agrees that any amendment, modification, waiver or termination of this Master Confirmation and any Supplemental Confirmation must be effected in accordance with the requirements for the amendment or termination of a “plan” (within the meaning of Rule 10b5-1(c) under the Exchange Act).  Without limiting the generality of the foregoing, any such amendment, modification, waiver or termination shall be made in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b-5 under the Exchange Act, and no such amendment, modification or waiver shall be made at any time at which Counterparty or Parent or any of their officers or directors is aware of any material nonpublic information regarding Issuer or the Shares.

 

5.                                      Acknowledgements Regarding Hedging.

 

Counterparty acknowledges and agrees that:

 

(a)                                 During the Relevant Period for any Transaction, CS and its Affiliates may buy or sell Shares or other securities or buy or sell options or futures contracts or enter into swaps or other derivative securities in order to adjust its hedge position with respect to such Transaction;

 

(b)                                 CS and its Affiliates also may be active in the market for Shares other than in connection with hedging activities in relation to any Transaction;

 

(c)                                  Without limiting the generality of Section 3(a) above, CS 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/or the Daily VWAP for each Transaction; and

 

(d)                                 Any market activities of CS and its Affiliates with respect to the Shares under any Transaction may affect the market price and volatility of the Shares, as well as the Forward Price and/or the Daily VWAP, each in a manner that may be adverse to Counterparty.

 

6.                                      Additional Provisions Relating to Delivery of Shares.

 

(a)                                 CS may postpone the Original Scheduled Date for any Transaction or postpone or extend any other date of

 

 

valuation or delivery with respect to some or all of the relevant Shares, upon written notice to Counterparty, if CS determines, in its reasonable discretion, that such postponement or extension is reasonably necessary or appropriate to preserve CS’ hedging or hedge unwind activity hereunder in light of existing liquidity conditions (including but not limited to the liquidity in the stock borrow market) or to enable CS or its Affiliates to effect transactions with respect to Shares in connection with its hedging, hedge unwind or settlement activity hereunder in a manner that would, if CS or its Affiliates were an affiliated purchaser of Issuer, be in compliance with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to CS and its Affiliates.

 

(b)                                 CS may, by notice to Counterparty on or prior to the Settlement Date for any Transaction, elect to deliver any Shares deliverable on such Settlement Date on the one or two Exchange Business Days immediately prior to such Settlement Date and/or such Settlement Date (each, a “Staggered Settlement Date”) or at two or more times on such Settlement Date as follows: (i) in such notice, CS will specify to Counterparty the related Staggered Settlement Dates (each of which will be on or prior to such Settlement Date, but not earlier than the date that is the second Exchange Business Day immediately prior to such Settlement Date) or delivery times and how it will allocate the Shares it is required to deliver under the applicable settlement method above among the Staggered Settlement Dates or delivery times; and (ii) the aggregate number of Shares that CS or its Affiliates will deliver to Counterparty pursuant to such Transaction on all such Staggered Settlement Dates and delivery times will equal the number of Shares that CS would otherwise be required to deliver on such Settlement Date.

 

7.                                      Transfer.  Notwithstanding anything to the contrary in the Agreement, CS may assign or transfer its rights or obligations under any Transaction, in whole or in part, to any of its Affiliates of equivalent or better credit quality (or whose obligations under such Transaction are guaranteed by a person of such credit quality); provided that, under applicable law as in effect on the date of such transfer or assignment, (i) Counterparty will not be required to pay to the transferee an amount in respect of an Indemnifiable Tax under Section 2(d)(i)(4) of the Agreement as a result of such transfer or assignment; and (ii) Counterparty will not receive a payment from which an amount has been withheld or deducted, on account of a Tax under Section 2(d)(i) of the Agreement following such transfer or assignment .  In addition, if at any time at which (A) the Ownership Percentage exceeds 9.0% or (B) the Ownership Percentage exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A) or (B), an “Excess Ownership Position”), CS is unable after using its commercially reasonable efforts to effect a transfer or assignment of such Transaction to a third party on pricing terms reasonably acceptable to CS and within a time period reasonably acceptable to CS such that no Excess Ownership Position exists, then CS may deem that an Additional Termination Event has occurred with respect to a portion of such Transaction (the “Terminated Portion”), such that following termination of the Terminated Portion no Excess Ownership Position would exist, with Counterparty as the sole Affected Party.   The “Ownership Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that CS and and/or its Affiliates hold for the purposes of a Transaction hereunder and (B) the denominator of which is the number of Shares outstanding.  The “Applicable Share Limit” means a number of Shares equal to (A) the minimum number of Shares that would give rise to restrictions or reporting or registration obligations (other than an obligation to file a Schedule 13G with the U.S. Securities and Exchange Commission (“SEC”)) or other requirements (including obtaining prior approval from any person or entity) of a CS Person, or otherwise result in an adverse effect on a CS Person, under any Applicable Restriction, as determined by CS in its reasonable discretion, minus (B) 0.5% of the number of Shares outstanding.

 

8.                                      Additional Provisions.

 

(a)                                 If the Condition Satisfaction Date has not occurred on or prior to the second Scheduled Trading Day prior to the Original Scheduled Date of the Transaction documented under Supplemental Confirmation — Tranche 2, an Additional Termination Event shall occur with respect to all outstanding Transactions hereunder, with Counterparty as the sole Affected Party and such outstanding Transactions as the sole Affected Transactions; provided that (i) in no event shall the Early Termination Date with respect to such Additional Termination Event be a date that is earlier than six months following the Settlement Date under the Transaction documented under Supplemental Confirmation — Tranche 1and (ii) in connection with the

 

 

calculation of the Close-out Amount, the Non-affected Party shall (X) based on advice of its counsel, dispose or otherwise unwind its Hedge Positions in connection with the Affected Transactions in a commercially reasonable manner in compliance with the applicable U.S. securities laws (including, without limitation, its internal policies and procedures with respect thereto) and (Y) calculate such Close-out Amount taking into account any losses or costs incurred in connection with its delay in terminating, liquidating or re-establishing any Hedge Positions for the Affected Transactions; it being understood (A) that Counterparty is an “affiliate” (as defined in Rule 144 under the Securities Act) of the Issuer and (B) CS shall not dispose of or otherwise unwind its Hedge Position between the second Scheduled Trading Day prior to the Original Scheduled Date of the Transaction documented under Supplemental Confirmation — Tranche 2 and the Early Termination Date.  For the avoidance of doubt, no Shares shall be delivered to Counterparty in connection with such Additional Termination Event.

 

(b)                                 Counterparty shall promptly, but in no case no later than one Scheduled Trading Day prior to the date on which it files any Schedule 13D/A with the SEC in connection with the Shares, provide a draft of such filing to CS and provide CS with a reasonable opportunity to comment thereon.

 

9.                                      Account Details.

 

Payments to CS:                                                                                                                                                                                                                        To be advised

 

Deliveries of Shares to Counterparty:                                                                                                           To be advised

 

10.                               Submission to Jurisdiction; Waiver of Jury Trial.

 

(a)                                 Each party hereby submits to the non-exclusive jurisdiction of the Courts of the State of New York or the U.S. federal courts in each case located in the Borough of Manhattan in New York City.

 

(b)                                 CS and Counterparty hereby irrevocably waive any and all right to trial by jury in any legal proceeding arising out of or related to the Agreement, this Master Confirmation, any Supplemental Confirmation or any Transaction contemplated hereby or thereby.

 

11.                               Tax Disclosure.  Notwithstanding any provision in this Master Confirmation or any Supplemental Confirmation, in connection with Section 1.6011-4 of the Treasury Regulations, the parties hereby agree that each party (and each employee, representative, or other agent of such party) may disclose to any and all persons, without limitation of any kind, the U.S. tax treatment and U.S. tax structure of any Transaction and all materials of any kind (including opinions or other tax analyses) that are provided to such party relating to such U.S. tax treatment and U.S. tax structure, other than any information for which nondisclosure is reasonably necessary in order to comply with applicable securities laws.

 

12.                               Tax Matters.  For purposes of Sections 4(a)(i) and (ii) of the Agreement, Counterparty agrees to deliver to CS a duly executed and completed United States Internal Revenue Service Form W-8-IMY, along with the withholding foreign partnership certificate meeting the requirements of section 1.1441-5(c)(2)(iv) of US Treasury Regulations, (or successor thereto) (i) upon execution of this Agreement, (ii) promptly upon reasonable demand by CS, and (iii) promptly upon learning that any such form previously provided to CS has become obsolete or incorrect. CS shall provide to Counterparty an applicable duly executed and completed United States Internal Revenue Service Form W-9 (or successor thereto), (i) upon execution of this Agreement, (ii) promptly upon reasonable demand by Counterparty and (iii) promptly upon learning that any such form previously provided to Counterparty has become obsolete or incorrect.

 

13.                               Incorporation of ISDA 2015 Section 871(m) Protocol.  The parties to this Master Confirmation agree that the amendments set out in the Attachment to the ISDA 2015 Section 871(m) Protocol published by ISDA on November 2, 2015 and available on the ISDA website (www.isda.org) shall apply to this Master Confirmation and

 

 

any Supplemental Confirmation. The parties further agree that this Master Confirmation and any Supplemental Confirmation will be deemed to be a Covered Master Agreement and that the Implementation Date shall be the effective date of this Master Confirmation as amended by the parties for the purposes of such Protocol amendments regardless of the definitions of such terms in the Protocol.

 

14.                               Incorporation of ISDA 2012 FATCA Protocol. The parties to this Master Confirmation agree that the amendments set out in the Attachment to the ISDA 2012 FATCA Protocol published by ISDA on August 15, 2012 and available on the ISDA website (www.isda.org) shall apply to this Master Confirmation and any Supplemental Confirmation. The parties further agree that this Master Confirmation and any Supplemental Confirmation will be deemed to be a Covered Master Agreement and that the Implementation Date shall be the effective date of this Master Confirmation as amended by the parties for the purposes of such Protocol amendments regardless of the definitions of such terms in the Protocol.

 

15.                               [Reserved.]

 

16.                               Payee Tax Representations.  For the purpose of Section 3(f) of the Agreement, the parties make the representations below:

 

(i) CS makes the following Payee Tax Representations:

 

(1) CS is entering into each Transaction in the ordinary course of its trade as, and is a “dealer in securities” (as defined in Section 475(c )(1) (or any applicable successor provision) of the Code within the meaning of US Treasury Regulation section 1.1001-4T.

 

(2) CS is a limited liability company created or organized in the United States.

 

(3) CS is taxable as a corporation for US federal income tax purposes and is therefore a “United States person” for US federal income tax purposes as that term is defined in Section 7701(a)(30) (or any applicable successor provision) of the Code and as that term is used in section 1.1441-4(a)(3)(ii) of the U.S. Treasury Regulations.

 

(4) CS’ United States taxpayer identification number is 13-4097003.

 

(ii) Counterparty makes the following Payee Tax Representations.

 

(1) Counterparty is a Cayman Islands exempted limited partnership, taxable as a partnership for US federal income tax purposes and has elected to be a withholding foreign partnership as that term is used in section 1.1441-5(c)(2) of the U.S. Treasury Regulations for US federal income tax purposes.

 

(2) Counterparty is a “foreign person” (as that term is used in section 1.6041-4(a)(4) of United States Treasury Regulations).

 

17.                               Role of Agent.

 

(a)                                 As a broker-dealer registered with the SEC, Credit Suisse Securities (USA) LLC in its capacity as agent (the “Agent”) will be responsible for (i) effecting each Transaction, (ii) issuing all required confirmations and statements to CS and Counterparty, (iii) maintaining books and records relating to any Transaction hereunder as required by Rules 17a-3 and 17a-4 under the Exchange Act and (iv) unless otherwise requested by Counterparty, receiving, delivering, and safeguarding Counterparty’s funds and any securities in connection with each Transaction, in compliance with Rule 15c3-3 under the Exchange Act.

 

(b)                                 Credit Suisse Securities (USA) LLC is acting in connection with the Transactions solely in its capacity as Agent for CS and Counterparty pursuant to instructions from CS and Counterparty.  Credit Suisse Securities (USA) LLC shall have no responsibility or personal liability to CS or Counterparty arising from any failure by

 

 

CS or Counterparty to pay or perform any obligations hereunder, or to monitor or enforce compliance by CS or Counterparty with any obligation hereunder, including without limitation, any obligations to maintain collateral. Each of CS and Counterparty agrees to proceed solely against the other to collect or recover any securities or monies owing to it in connection with or as a result of the Transactions. Credit Suisse Securities (USA) LLC shall otherwise have no liability.

 

(c)                                  Any and all notices, demands, or communications of any kind relating to any Transaction between CS and Counterparty shall be transmitted exclusively through Agent at the following address:

 

Credit Suisse Capital LLC

c/o Credit Suisse Securities (USA) LLC

Eleven Madison Avenue

New York, NY 10010

Attention: Tucker Martin

Telephone: (212) 325-9182

Facsimile: (212) 743-3661

Email: tucker.martin@credit-suisse.com; list.elo-equ-der@credit-suisse.com

 

With a copy to

 

Credit Suisse Securities (USA) LLC

1 Madison Avenue, 9th Floor

New York, NY 10010

Attention: Senior Legal Officer

Telephone: (212) 538-2616

Facsimile: (212)325-8036

Email: stephen.gray@credit-suisse.com

 

For payments and deliveries:

Facsimile No.: (212) 325 8175

Telephone No.: (212) 325 8678 / (212) 325 3213

 

For all other communications:

Telephone: (212) 538-6040

Facsimile: (917) 326-8603

 

Any notices or communications to Counterparty shall be sent to:

 

CD&R Boulder Holdings, L.P.

c/o Clayton, Dubilier & Rice, LLC

375 Park Avenue, 18th Floor

New York, NY 10152

Attn:  Nathan K. Sleeper, JL Zrebiec

Fax:  (212) 407-5252

Email:  nsleeper@cdr-inc.com, jzrebiec@cdr-inc.com

 

with a copy to (which copy alone shall not constitute notice):

 

Debevoise & Plimpton LLP

919 Third Avenue

New York, New York 10022

Attention: Uri Herzberg

Email: uherzberg@debevoise.com

 

(d)                                 The date and time of each Transaction evidenced hereby will be furnished by the Agent to CS and

 

 

Counterparty upon written request.

 

(e)                                  The Agent will furnish to Counterparty upon written request a statement as to the source and amount of any remuneration received or to be received by the Agent in connection with any Transaction.

 

(f)                                   CS is not a member of SIPC (Securities Investors Protection Corporation).

 

(g)                                  CS represents that it is an “OTC derivatives dealer” as such term is defined in the Exchange Act and is an affiliate of a broker-dealer that is registered with and fully-regulated by the SEC, Credit Suisse Securities (USA) LLC.

 

(h)                                 CS and Counterparty each represents and agrees (A) that no Transaction is unsuitable for it in the light of such party’s financial situation, investment objectives and needs and (B) that it is entering into each Transaction in reliance upon such tax, accounting, regulatory, legal and financial advice as it deems necessary and not upon any view expressed by the other or the Agent.

 

18.                               The ISDA 2018 U.S. Resolution Stay Protocol.  The parties hereto agree enter into a bilateral agreement relating to the U.S. Resolution Stay Protocol contemplated by the ISDA 2018 U.S. Resolution Stay Protocol (the “Resolution Stay Protocol”) on or prior to the earlier of (a) the relevant “Compliance Date” (as defined in the Resolution Stay Protocol) and (b) the 30th calendar day following the date on which CS provides a notice that its internal policy, applied generally by Credit Suisse in the relevant business on a non-discriminatory basis, requires such bilateral agreement to be entered into by the parties.

 

 

Please confirm that the foregoing correctly sets forth the terms of our agreement by signing and returning this Master Confirmation.

 

 

			Yours faithfully,
			Credit Suisse Capital LLC
			By:	/s/ Shui Wong
			Name: Shui Wong
			Title: Authorized Signatory
			By:	/s/ Eileen Caluri
			Name: Eileen Caluri
			Title: Authorized Signatory
			Credit Suisse Securities (USA) LLC,
			as Agent for Credit Suisse Capital LLC
			By:	/s/ Eileen Caluri
			Name: Eileen Caluri
			Title: Authorized Signatory
Confirmed as of the date first written above:
CD&R Boulder Holdings, L.P.
By:	/s/ Theresa A. Gore
Name: Theresa A. Gore
Title: Vice President, Treasurer and Assistant Secretary

 

 

SCHEDULE A

 

FORM OF SUPPLEMENTAL CONFIRMATION

 

To:                                                                            CD&R Boulder Holdings, L.P.

c/o Clayton, Dubilier & Rice, LLC

375 Park Avenue, 18th Floor

New York, NY 10152

Attention: Nathan K. Sleeper, JL Zrebiec

Fax: (212) 407-5252

Email: nsleeper@cdr-inc.com, jzrebiec@cdr-inc.com

 

From:                                                           

Credit Suisse Capital LLC

c/o Credit Suisse Securities (USA) LLC

Eleven Madison Avenue

New York, NY 10010

Attention: Tucker Martin

Telephone: (212) 325-9182

Facsimile: (212) 743-3661

 

Re:                                                           Share Purchase Transaction

 

The purpose of this Supplemental Confirmation is to confirm the terms and conditions of the Transaction entered into between Credit Suisse Capital LLC (“CS”), represented by Credit Suisse Securities (USA) LLC (“Agent”) as its agent, and CD&R Boulder Holdings, L.P. (“Counterparty”) (together, the “Contracting Parties”) on the Effective Date specified below.  This Supplemental Confirmation is a binding contract between CS and Counterparty as of the Trade Date for the Transaction referenced below.

 

1.                                      This Supplemental Confirmation supplements, forms part of, and is subject to the Master Confirmation dated as of November 20, 2018 (the “Master Confirmation”) between the Contracting Parties, as amended and supplemented from time to time.  All provisions contained in the Master Confirmation govern this Supplemental Confirmation except as expressly modified below.

 

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

 

Effective Date:		[  ]
Number of Shares:		[  ]
Original Scheduled Date:		[  ]
Settlement Date:		[  ]
First Accelerated Valuation Date:		[  ]
Forward Price Adjustment Factor:		As specified in Annex A hereto.
Forward Fee:		As specified in Annex A hereto.
Disregarded Day Price:		As specified in Annex A hereto.

 

Sch. A - 1

 

Please confirm that the foregoing correctly sets forth the terms of our agreement by signing and returning this Supplemental Confirmation.

 

 

	Yours faithfully,
	Credit Suisse Capital LLC
	By:
	Name:
	Title:
	By:
	Name:
	Title:
	Credit Suisse Securities (USA) LLC,
	as Agent for Credit Suisse Capital LLC
	By:
	Name:
	Title:

 

Confirmed as of the date first written above:
CD&R Boulder Holdings, L.P.
By:
Name:
Title:

 

Sch. A - 2

 

ANNEX A

 

Forward Price Adjustment Factor:                                                         As determined by the Calculation Agent as of the Valuation Date.

 

Forward Fee:                                                                                                                                                                         [****](1)

 

Disregarded Day Price:                                                                                                                     [****](2)

 

(1)  Certain information has been omitted and filed separately with the Commission.  Confidential treatment has been requested with respect to the omitted portions.

(2)  Certain information has been omitted and filed separately with the Commission.  Confidential treatment has been requested with respect to the omitted portions.

 

Sch. A - 3

 

EXHIBIT A

 

[FORM OF ISSUER CONSENT]

 

Exhibit A - 1

 

SUPPLEMENTAL CONFIRMATION — TRANCHE 1

 

To:		CD&R Boulder Holdings, L.P. c/o Clayton, Dubilier & Rice, LLC 375 Park Avenue, 18th Floor New York, NY 10152 Attention: Nathan K. Sleeper, JL Zrebiec Fax: (212) 407-5252 Email: nsleeper@cdr-inc.com, jzrebiec@cdr-inc.com
From:		Credit Suisse Capital LLC c/o Credit Suisse Securities (USA) LLC Eleven Madison Avenue New York, NY 10010 Attention: Tucker Martin Telephone: (212) 325-9182 Facsimile: (212) 743-3661
Re:		Share Purchase Transaction

The purpose of this Supplemental Confirmation is to confirm the terms and conditions of the Transaction entered into between Credit Suisse Capital LLC (“CS”), represented by Credit Suisse Securities (USA) LLC (“Agent”) as its agent, and CD&R Boulder Holdings, L.P. (“Counterparty”) (together, the “Contracting Parties”) on the Effective Date specified below.  This Supplemental Confirmation is a binding contract between CS and Counterparty as of the relevant Trade Date for the Transaction referenced below.

 

1.                                      This Supplemental Confirmation supplements, forms part of, and is subject to the Master Confirmation dated as of November 20, 2018 (the “Master Confirmation”) between the Contracting Parties, as amended and supplemented from time to time.  All provisions contained in the Master Confirmation govern this Supplemental Confirmation except as expressly modified below.

 

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

 

Effective Date:		The Trade Date.
Number of Shares:		[****](1)
Original Scheduled Date:		[****](2)
Settlement Date:		[****](3)

 

(1)  Certain information has been omitted and filed separately with the Commission.  Confidential treatment has been requested with respect to the omitted portions.

 

(2)  Certain information has been omitted and filed separately with the Commission.  Confidential treatment has been requested with respect to the omitted portions.

 

(3)  Certain information has been omitted and filed separately with the Commission.  Confidential treatment has been requested with respect to the omitted portions.

 

 

Forward Price Adjustment Factor:		As specified in Annex A hereto.
Forward Fee:		As specified in Annex A hereto.
Disregarded Day Price:		As specified in Annex A hereto.
First Accelerated Valuation Date:		[****](4)

 

(4)  Certain information has been omitted and filed separately with the Commission.  Confidential treatment has been requested with respect to the omitted portions.

 

 

Please confirm that the foregoing correctly sets forth the terms of our agreement by signing and returning this Supplemental Confirmation.

 

 

	Yours faithfully,
	Credit Suisse Capital LLC
	By:	/s/ Shui Wong
	Name:	Shui Wong
	Title:	Authorized Signatory
	By:	/s/ Eileen Caluri
	Name:	Eileen Caluri
	Title:	Authorized Signatory
	Credit Suisse Securities (USA) LLC,
	as Agent for Credit Suisse Capital LLC
	By:	/s/ Eileen Caluri
	Name:	Eileen Caluri
	Title:	Authorized Signatory

 

Confirmed as of the date first written above:

 

CD&R Boulder Holdings, L.P.

 

 

By:	/s/ Theresa A. Gore
Name:	Theresa A. Gore
Title:	Vice President, Treasurer and Assistant Secretary

 

 

ANNEX A

 

Forward Price Adjustment Factor:         As determined by the Calculation Agent as of the Valuation Date.

 

Forward Fee:		[****](5)
Disregarded Day Price:		[****](6)

 

(5)  Certain information has been omitted and filed separately with the Commission.  Confidential treatment has been requested with respect to the omitted portions.

 

(6)  Certain information has been omitted and filed separately with the Commission.  Confidential treatment has been requested with respect to the omitted portions.

 

 

SUPPLEMENTAL CONFIRMATION — TRANCHE 2

 

To:		CD&R Boulder Holdings, L.P. c/o Clayton, Dubilier & Rice, LLC 375 Park Avenue, 18th Floor New York, NY 10152 Attention: Nathan K. Sleeper, JL Zrebiec Fax: (212) 407-5252 Email: nsleeper@cdr-inc.com, jzrebiec@cdr-inc.com
From:		Credit Suisse Capital LLC c/o Credit Suisse Securities (USA) LLC Eleven Madison Avenue New York, NY 10010 Attention: Tucker Martin Telephone: (212) 325-9182 Facsimile: (212) 743-3661
Re:		Share Purchase Transaction

 

The purpose of this Supplemental Confirmation is to confirm the terms and conditions of the Transaction entered into between Credit Suisse Capital LLC (“CS”), represented by Credit Suisse Securities (USA) LLC (“Agent”) as its agent, and CD&R Boulder Holdings, L.P. (“Counterparty”) (together, the “Contracting Parties”) on the Effective Date specified below.  This Supplemental Confirmation is a binding contract between CS and Counterparty as of the relevant Trade Date for the Transaction referenced below.

 

1.                                      This Supplemental Confirmation supplements, forms part of, and is subject to the Master Confirmation dated as of November 20, 2018 (the “Master Confirmation”) between the Contracting Parties, as amended and supplemented from time to time.  All provisions contained in the Master Confirmation govern this Supplemental Confirmation except as expressly modified below.

 

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

 

Effective Date:		The second Scheduled Trading Day following the “Settlement Date” under the Transaction documented under Supplemental Confirmation — Tranche 1
Number of Shares:		[****](1)
Original Scheduled Date:		[****](2)
Settlement Date:		[****](3)

 

(1)  Certain information has been omitted and filed separately with the Commission.  Confidential treatment has been requested with respect to the omitted portions.

 

(2)  Certain information has been omitted and filed separately with the Commission.  Confidential treatment has been requested with respect to the omitted portions.

 

 

Forward Price Adjustment Factor:		As specified in Annex A hereto.
Forward Fee:		As specified in Annex A hereto.
Disregarded Day Price:		As specified in Annex A hereto.
First Accelerated Valuation Date:		[****](4)

 

(3)  Certain information has been omitted and filed separately with the Commission.  Confidential treatment has been requested with respect to the omitted portions.

 

(4)  Certain information has been omitted and filed separately with the Commission.  Confidential treatment has been requested with respect to the omitted portions.

 

 

Please confirm that the foregoing correctly sets forth the terms of our agreement by signing and returning this Supplemental Confirmation.

 

 

	Yours faithfully,
	Credit Suisse Capital LLC
	By:	/s/ Shui Wong
	Name:	Shui Wong
	Title:	Authorized Signatory
	By:	/s/ Eileen Caluri
	Name:	Eileen Caluri
	Title:	Authorized Signatory
	Credit Suisse Securities (USA) LLC,
	as Agent for Credit Suisse Capital LLC
	By:	/s/ Eileen Caluri
	Name:	Eileen Caluri
	Title:	Authorized Signatory

 

Confirmed as of the date first written above:

 

CD&R Boulder Holdings, L.P.

 

 

By:	/s/ Theresa A. Gore
Name:	Theresa A. Gore
Title:	Vice President, Treasurer and Assistant Secretary

 

 

ANNEX A

 

Forward Price Adjustment Factor:         As determined by the Calculation Agent as of the Valuation Date.

 

Forward Fee:		[****](5)
Disregarded Day Price:		[****](6)

 

(5)  Certain information has been omitted and filed separately with the Commission.  Confidential treatment has been requested with respect to the omitted portions.

 

(6)  Certain information has been omitted and filed separately with the Commission.  Confidential treatment has been requested with respect to the omitted portions.

 

 

SUPPLEMENTAL CONFIRMATION — TRANCHE 3

 

To:		CD&R Boulder Holdings, L.P. c/o Clayton, Dubilier & Rice, LLC 375 Park Avenue, 18th Floor New York, NY 10152 Attention: Nathan K. Sleeper, JL Zrebiec Fax: (212) 407-5252 Email: nsleeper@cdr-inc.com, jzrebiec@cdr-inc.com
From:		Credit Suisse Capital LLC c/o Credit Suisse Securities (USA) LLC Eleven Madison Avenue New York, NY 10010 Attention: Tucker Martin Telephone: (212) 325-9182 Facsimile: (212) 743-3661
Re:		Share Purchase Transaction

 

The purpose of this Supplemental Confirmation is to confirm the terms and conditions of the Transaction entered into between Credit Suisse Capital LLC (“CS”), represented by Credit Suisse Securities (USA) LLC (“Agent”) as its agent, and CD&R Boulder Holdings, L.P. (“Counterparty”) (together, the “Contracting Parties”) on the Effective Date specified below.  This Supplemental Confirmation is a binding contract between CS and Counterparty as of the relevant Trade Date for the Transaction referenced below.

 

1.                                      This Supplemental Confirmation supplements, forms part of, and is subject to the Master Confirmation dated as of November 20, 2018 (the “Master Confirmation”) between the Contracting Parties, as amended and supplemented from time to time.  All provisions contained in the Master Confirmation govern this Supplemental Confirmation except as expressly modified below.

 

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

 

Effective Date:		The second Scheduled Trading Day following the “Settlement Date” under the Transaction documented under Supplemental Confirmation — Tranche 2
Number of Shares:		[****](1)
Original Scheduled Date:		[****](2)
Settlement Date:		[****](3)

 

(1)  Certain information has been omitted and filed separately with the Commission.  Confidential treatment has been requested with respect to the omitted portions.

 

(2)  Certain information has been omitted and filed separately with the Commission.  Confidential treatment has been requested with respect to the omitted portions.

 

 

Forward Price Adjustment Factor:		As specified in Annex A hereto.
Forward Fee:		As specified in Annex A hereto.
Disregarded Day Price:		As specified in Annex A hereto.
First Accelerated Valuation Date:		[****](4)

 

(3)  Certain information has been omitted and filed separately with the Commission.  Confidential treatment has been requested with respect to the omitted portions.

 

(4)  Certain information has been omitted and filed separately with the Commission.  Confidential treatment has been requested with respect to the omitted portions.

 

 

Please confirm that the foregoing correctly sets forth the terms of our agreement by signing and returning this Supplemental Confirmation.

 

 

	Yours faithfully,
	Credit Suisse Capital LLC
	By:	/s/ Shui Wong
	Name:	Shui Wong
	Title:	Authorized Signatory
	By:	/s/ Eileen Caluri
	Name:	Eileen Caluri
	Title:	Authorized Signatory
	Credit Suisse Securities (USA) LLC,
	as Agent for Credit Suisse Capital LLC
	By:	/s/ Eileen Caluri
	Name:	Eileen Caluri
	Title:	Authorized Signatory

 

Confirmed as of the date first written above:

 

CD&R Boulder Holdings, L.P.

 

 

By:	/s/ Theresa A. Gore
Name:	Theresa A. Gore
Title:	Vice President, Treasurer and Assistant Secretary

 

 

ANNEX A

 

Forward Price Adjustment Factor:         As determined by the Calculation Agent as of the Valuation Date.

 

Forward Fee:	[****](5)
Disregarded Day Price:	[****](6)

 

(5)  Certain information has been omitted and filed separately with the Commission.  Confidential treatment has been requested with respect to the omitted portions.

 

(6)  Certain information has been omitted and filed separately with the Commission.  Confidential treatment has been requested with respect to the omitted portions.