Exhibit 10.2

 

EXECUTION COPY

 

Opening Transaction

 

	
 
    	
Rudolph   Technologies, Inc.
    
	
To:
    	
One Rudolph Road
    P.O. Box 1000
    Flanders, New Jersey   07836
    
	
 
    	
 
    
	
A/C:
    	
 
    
	
 
    	
 
    
	
From:
    	
Credit Suisse International
    One Cabot Square
    London E14 4QJ
    England
    
	
 
    	
 
    
	
Re:
    	
Convertible Note Hedge Transaction
    
	
 
    	
 
    
	
Ref. No:
    	
 
    
	
 
    	
 
    
	
Date:
    	
July 19, 2011
    


 

Dear Sir(s):

 

The purpose of this communication (this “Confirmation”) is to set forth the terms and conditions of the above-referenced transaction entered into on the Trade Date specified below (the “Transaction”) between Credit Suisse International (“Dealer”), represented by Credit Suisse Securities (USA) LLC (“Agent”) as its agent, and Rudolph Technologies, Inc. (“Counterparty”).  This communication constitutes a “Confirmation” as referred to in the Agreement specified below.

 

1.     This Confirmation is subject to, and incorporates, the definitions and provisions of the 2000 ISDA Definitions (including the Annex thereto) (the “2000 Definitions”) and the definitions and provisions of the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”, and together with the 2000 Definitions, the “Definitions”), in each case as published by the International Swaps and Derivatives Association, Inc. (“ISDA”).  In the event of any inconsistency between the 2000 Definitions and the Equity Definitions, the Equity Definitions will govern.  Certain defined terms used herein have the meanings assigned to them in the Indenture to be dated as of July 25, 2011 between Counterparty and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Indenture”) relating to the USD 50,000,000 principal amount of  3.75% convertible senior notes due 2016 (the “Convertible Notes”).  In the event of any inconsistency between the terms defined in the Indenture and this Confirmation, this Confirmation shall govern.  References herein to sections of the Indenture are based on the draft of the Indenture most recently reviewed by the parties at the time of execution of this Confirmation.  If any relevant sections of the Indenture are changed, added or renumbered between the execution of this Confirmation and the execution of the Indenture, the parties will amend this Confirmation in good faith to preserve the economic intent of the parties based on the draft of the Indenture so reviewed.  The parties further acknowledge that references to the Indenture herein are references to the Indenture as in effect on the date of its execution and if the Indenture is amended following its execution, any such amendment will be disregarded for purposes of this Confirmation unless the parties agree otherwise in writing.  The Transaction is subject to early unwind if the closing of the Convertible Notes is not consummated for any reason, as set forth below in Section 8(j).

 











 

Each party is hereby advised, and each such party acknowledges, that the other party has engaged in, or refrained from engaging in, substantial financial transactions and has taken other material actions in reliance upon the parties’ entry into the Transaction to which this Confirmation relates on the terms and conditions set forth below.

 

This Confirmation evidences a complete and binding agreement between Dealer and Counterparty as to the terms of the Transaction to which this Confirmation relates.  This Confirmation shall be subject to an agreement (the “Agreement”) in the form of the 1992 ISDA Master Agreement (Multicurrency — Cross Border), as published by ISDA, as if Dealer and Counterparty had executed an agreement in such form on the date hereof (but without any Schedule except for (i) the election of Loss and Second Method and US Dollars (“USD”) as the Termination Currency, (ii) the replacement of the word “third” in the last line of Section 5(a)(i) with the word “first”, and (iii) the election that the “Cross Default” provisions of Section 5(a)(vi) shall apply to Counterparty with a “Threshold Amount” of USD 10 million).  The Transaction shall be the only Transaction under the Agreement.

 

All provisions contained in, or incorporated by reference to, the Agreement will govern this Confirmation except as expressly modified herein.  In the event of any inconsistency between this Confirmation and either the Definitions or the Agreement, this Confirmation shall govern.

 

2.     The Transaction constitutes a Share Option Transaction for purposes of the Equity Definitions.  The terms of the particular Transaction to which this Confirmation relates are as follows:

 

General Terms:

 

	
Trade Date:
    	
 
    	
July 20, 2011
    
	
 
    	
 
    	
 
    
	
Effective Date:
    	
 
    	
July 25, 2011
    
	
 
    	
 
    	
 
    
	
Option Style:
    	
 
    	
Modified American, as described under   “Procedures for Exercise” below.
    
	
 
    	
 
    	
 
    
	
Option Type:
    	
 
    	
Call
    
	
 
    	
 
    	
 
    
	
Seller:
    	
 
    	
Dealer
    
	
 
    	
 
    	
 
    
	
Buyer:
    	
 
    	
Counterparty
    
	
 
    	
 
    	
 
    
	
Shares:
    	
 
    	
The Common Stock of Counterparty, par value   USD 0.001 per share (Ticker Symbol: “RTEC”).
    
	
 
    	
 
    	
 
    
	
Number of Options:
    	
 
    	
The number of Convertible Notes in   denominations of USD 1,000 principal amount issued by Counterparty on   the closing date for the initial issuance of the Convertible Notes.
    
	
 
    	
 
    	
 
    
	
Option Entitlement:
    	
 
    	
As of any date, a number of Shares per Option   equal to the “Applicable Conversion Rate” (as defined in the Indenture, but   without regard to any adjustments to the Applicable Conversion Rate pursuant   to Section 10.06 or 10.07 of the Indenture) as of such date.
    
	
 
    	
 
    	
 
    
	
Strike Price:
    	
 
    	
As of any date, an amount in USD, rounded to   the nearest cent (with 0.5 cents being rounded upwards), equal to   USD 1,000 divided by the Option   Entitlement as of such date.
    
	
 
    	
 
    	
 
    
	
Number of Shares:
    	
 
    	
The product of the Number of Options and the   Option Entitlement.
    
	
 
    	
 
    	
 
    
	
Premium:
    	
 
    	
USD 12,089,346 (Premium per Option   approximately
    


 











 

	
 
    	
 
    	
USD 241.79)
    
	
 
    	
 
    	
 
    
	
Premium Payment Date:
    	
 
    	
The Effective Date
    
	
 
    	
 
    	
 
    
	
Exchange:
    	
 
    	
NASDAQ Global Select Market
    
	
 
    	
 
    	
 
    
	
Related Exchange:
    	
 
    	
All Exchanges
    
	
 
    	
 
    	
 
    
	
Procedures for Exercise:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Exercise Date:
    	
 
    	
Each Conversion Date.
    
	
 
    	
 
    	
 
    
	
Conversion Date:
    	
 
    	
Each “Conversion Date” (as defined in the   Indenture) occurring during the Exercise Period for Convertible Notes (such   Convertible Notes, each in denominations of USD 1,000 principal amount,   the “Relevant Convertible Notes” for such   Conversion Date).
    
	
 
    	
 
    	
 
    
	
Exercise Period:
    	
 
    	
The period from and excluding the Trade Date   to and including the Expiration Date.
    
	
 
    	
 
    	
 
    
	
Expiration Date:
    	
 
    	
The earlier of (i) the last day on which   any Convertible Notes remain outstanding and (ii) the second “Scheduled   Trading Day” (as defined in the Indenture) immediately preceding the   “Maturity Date” (as defined in the Indenture).
    
	
 
    	
 
    	
 
    
	
Automatic Exercise on Conversion Dates:
    	
 
    	
On each Conversion Date, a number of Options   equal to the number of Relevant Convertible Notes for such Conversion Date in   denominations of USD1,000 principal amount shall be automatically exercised,   subject to “Notice of Exercise” below.
    
	
 
    	
 
    	
 
    
	
Notice Deadline:
    	
 
    	
In respect of any exercise of Options   hereunder, the scheduled Trading Day immediately preceding the first   scheduled Trading Day of the relevant “Cash Settlement Averaging Period” (as   defined in the Indenture), subject to “Notice of Exercise” below; provided that in the case of any exercise of Options   hereunder in connection with the conversion of any Relevant Convertible Notes   for any Conversion Date occurring during the period starting on the 45th   scheduled Trading Day immediately preceding the Maturity Date (the “Final Conversion Period”), the Notice Deadline shall be the   Business Day immediate following such Exercise Date.
    
	
 
    	
 
    	
 
    
	
Notice of Exercise:
    	
 
    	
Notwithstanding anything to the contrary in   the Equity Definitions, Dealer shall have no obligation to make any payment   or delivery in respect of any exercise of Options hereunder unless   Counterparty notifies Dealer in writing prior to 5:00 PM, New York City time,   on the Notice Deadline in respect of such exercise of (i) the number of   Options being exercised on such Exercise Date, (ii) the scheduled   settlement date under the Indenture for the Relevant Convertible Notes for   the related Conversion Date, and (iii) the first Scheduled Trading Day   of the Cash
    


 











 

	
 
    	
 
    	
Settlement Averaging Period for such Relevant   Convertible Notes; provided that   in the case of any exercise of Options hereunder in connection with the   conversion of any Relevant Convertible Notes for any Conversion Date   occurring during the Final Conversion Period, the content of such notice   shall be as set forth in clause (i) above.  For the avoidance of doubt, if Counterparty   fails to give such notice when due in respect of any exercise of Options   hereunder, Dealer’s obligation to make any payment or delivery in respect of   such exercise shall be permanently extinguished, and late notice shall not   cure such failure.
    
	
 
    	
 
    	
 
    
	
Dealer’s Telephone Number and Telex and/or   Facsimile Number and Contact Details for purpose of Giving Notice:
    	
 
    	
To:
    	
Credit Suisse Securities   (USA) LLC
    Eleven Madison Avenue
   New York, NY 10010-3629
    
	
 
    	
 
    	
Telephone:
    	
(212) 325 8676 / (212) 538 5306
    
	
 
    	
 
    	
Facsimile:
    	
(212) 325 8173
    
	
 
    	
 
    	
 
    	
 
    
	
Settlement Terms:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Settlement Date:
    	
 
    	
For any Exercise Date, the settlement date   for cash and shares, if any, to be delivered in respect of the Relevant   Convertible Notes for the Conversion Date occurring on such Exercise Date   under the terms of the Indenture; provided that   the Settlement Date shall not be prior to the latest of (i) the date one   Settlement Cycle following the final day of the relevant Cash Settlement   Averaging Period,  (ii) the   Exchange Business Day immediately following the date on which Counterparty   gives notice to Dealer of such Settlement Date prior to 5:00 PM, New   York City time, and (iii) the Exchange Business Day immediately   following the date Counterparty provides the Notice of Delivery Obligation   prior to 5:00 PM, New York City time.
    
	
 
    	
 
    	
 
    
	
Delivery Obligation:
    	
 
    	
In lieu of the obligations set forth in   Sections 8.1 and 9.1 of the Equity Definitions, and subject to “Notice of   Exercise” above, in respect of any Exercise Date, Dealer will deliver to   Counterparty on the related Settlement Date a number of Shares equal to the   aggregate number of Shares, if any, that Counterparty is obligated to deliver   to the holder(s) of the Relevant Convertible Notes for such Conversion   Date pursuant to Section 10.03 of the Indenture (except that such   aggregate number of Shares shall be determined without taking into   consideration any rounding pursuant to Section 12.08 of the Indenture   and shall be rounded down to the nearest whole number) and cash in lieu of   fractional shares, if any, resulting from
    
					


 











 

	
 
    	
 
    	
such rounding (such Shares, collectively, the   “Convertible Obligation”); provided that the Convertible Obligation shall be   determined excluding any Shares that Counterparty is obligated to deliver to   holder(s) of the Relevant Convertible Notes as a direct or indirect   result of any adjustments to the Applicable Conversion Rate pursuant to   Sections 10.06 or 10.07 of the Indenture and any interest payment that the   Counterparty is (or would have been) obligated to deliver to holder(s) of   the Relevant Convertible Notes for such Conversion Date; and provided further that if such exercise relates to the   conversion of Relevant Convertible Notes in connection with which holders   thereof are entitled to receive additional Shares and/or cash pursuant to the   adjustments to the Applicable Conversion Rate set forth in Section 10.07   of the Indenture, then, notwithstanding the foregoing, the Delivery   Obligation shall include such additional Shares, except that the Delivery   Obligation shall be capped so that the value of the Delivery Obligation per   Option (with the value of any Shares included in the Delivery Obligation   determined by the Calculation Agent using the “Daily VWAP” (as defined in the   Indenture) on the last day of the relevant Cash Settlement Averaging Period)   does not exceed the amount as determined by the Calculation Agent that would   be payable by Dealer pursuant to Section 6 of the Agreement if such   Conversion Date were an Early Termination Date resulting from an Additional   Termination Event with respect to which the Transaction (except that, for   purposes of determining such amount, (x) the Number of Options shall be   deemed to be equal to the number of Options exercised on such Exercise Date   and (y) such amount payable will be determined as if Section 10.07   of the Indenture were deleted) was the sole Affected Transaction and   Counterparty was the sole Affected Party (determined without regard to   Section 8(a) of this Confirmation).    For the avoidance of doubt, if the “Daily Conversion Value” (as   defined in the Indenture) for each of the Trading Days (as defined in the   Indenture) occurring in the relevant Cash Settlement Averaging Period is less   than or equal to USD 25.00, Dealer will have no delivery obligation hereunder   in respect of the related Exercise Date.
    
	
 
    	
 
    	
 
    
	
Notice of Delivery Obligation:
    	
 
    	
No later than the Exchange Business Day   immediately following the last day of the relevant Cash Settlement Averaging   Period),  Counterparty shall give   Dealer notice of the final number of Shares comprising the relevant   Convertible Obligation; provided   that, with respect to any Exercise Date occurring during the Final Conversion   Period, Counterparty may provide Dealer with a single notice of the aggregate   number of Shares comprising the
    


 











 

	
 
    	
 
    	
Convertible Obligations for all Exercise   Dates occurring during such period (it being understood, for the avoidance of   doubt, that the requirement of Counterparty to deliver such notice shall not   limit Counterparty’s obligations with respect to Notice of Exercise or   Dealer’s obligations with respect to Delivery Obligation, each as set forth   above, in any way).
    
	
 
    	
 
    	
 
    
	
Other Applicable Provisions:
    	
 
    	
The provisions of Sections 9.1(c), 9.8, 9.9,   9.10, 9.11 and 9.12 of the Equity Definitions will be applicable to any   Shares that Dealer is obligated to deliver hereunder as if “Physical   Settlement” applied to the Transaction; provided   that 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 exist as a result of the fact that Buyer is   the issuer of the Shares.
    
	
 
    	
 
    	
 
    
	
Restricted Certificated Shares:
    	
 
    	
Notwithstanding anything to the contrary in   the Equity Definitions, Dealer may, in whole or in part, deliver Shares in   certificated form representing the Number of Shares to be Delivered to   Counterparty in lieu of delivery through the Clearance System.
    
	
 
    	
 
    	
 
    
	
Adjustments:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Method of Adjustment:
    	
 
    	
Notwithstanding Section 11.2 of the   Equity Definitions, upon the occurrence of any event or condition set forth   in Section 10.05 of the Indenture (an “Adjustment   Event”), the Calculation Agent shall make the corresponding   adjustment in respect of any one or more of the Number of Options, the Option   Entitlement and any other variable relevant to the exercise, settlement or   payment of the Transaction, to the extent an analogous adjustment is made   under the Indenture. Immediately upon the occurrence of any Adjustment Event,   Counterparty shall notify the Calculation Agent of such Adjustment Event; and   once the adjustments to be made to the terms of the Indenture and the   Relevant Convertible Notes in respect of such Adjustment Event have been   determined, Counterparty shall immediately notify the Calculation Agent in   writing of the details of such adjustments.
    
	
 
    	
 
    	
 
    
	
Extraordinary Events:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Merger Events:
    	
 
    	
Notwithstanding Section 12.1(b) of   the Equity Definitions, a “Merger Event” means the occurrence of any event or   condition set forth in the definition of “Merger Event” in Section 10.08   of the Indenture.
    
	
 
    	
 
    	
 
    
	
Consequences of Merger Events:
    	
 
    	
Notwithstanding Section 12.2 of the   Equity Definitions, upon the occurrence of a Merger Event, the Calculation   Agent shall make the corresponding adjustment in respect of any adjustment   under the
    


 











 

	
 
    	
 
    	
Indenture to any one or more of the nature of the Shares, the Number   of Options, the Option Entitlement and any other variable relevant to the   exercise, settlement or payment for the Transaction, to the extent an   analogous adjustment is made under the Indenture in respect of such Merger   Event; provided that such   adjustment shall be made without regard to any adjustment to the Applicable   Conversion Rate for the issuance of additional Shares as set forth in   Section 10.06 or 10.07 of the Indenture; and provided further that the   Calculation Agent may limit or alter any such adjustment referenced in this   paragraph so that the fair value of the Transaction to Dealer (taking into   account a commercially reasonable hedge position) is not adversely affected   as a result of such adjustment; and provided further that if, with respect to   a merger event, the consideration for the Shares includes (or, at the option   of a holder of Shares, may include) shares of an entity or person not   organized under the laws of the United States, any State thereof or the   District of Columbia, Cancellation and Payment (Calculation Agent   Determination) shall apply.
    
	
 
    	
 
    	
 
    
	
Notice of Merger Consideration:
    	
 
    	
Upon the occurrence of a Merger Event that   causes the Shares to be converted into the right to receive more than a   single type of consideration (determined based in part upon any form of   stockholder election), Counterparty shall reasonably promptly (but in any event   prior to the effective time of the relevant merger) notify the Calculation Agent of (i) the weighted average of   the types and amounts of consideration received by the holders of Shares   entitled to receive cash, securities or other property or assets with respect   to or in exchange for such Shares in any Merger Event who affirmatively make   such an election and (ii) the details of the adjustment made under the   Indenture in respect of such Merger Event.
    
	
 
    	
 
    	
 
    
	
Nationalization, Insolvency or   Delisting:
    	
 
    	
Cancellation and Payment (Calculation Agent   Determination); provided that   in addition to the provisions of Section 12.6(a)(iii) of the Equity   Definitions, it will also constitute a Delisting if the Exchange is located   in the United States and the Shares are not immediately re-listed, re-traded   or re-quoted on any of the New York Stock Exchange, the NASDAQ Global Select   Market or the NASDAQ Global Market (or their respective successors); if the   Shares are immediately re-listed, re-traded or re-quoted on any such exchange   or quotation system, such exchange or quotation system shall thereafter 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 by (i) replacing
    


 











 

	
 
    	
 
    	
the phrase “the interpretation” in the third   line thereof with the phrase “, or public announcement of, the formal or   informal interpretation”, (ii) by replacing the word “Shares” where it   appears in clause (X) thereof with the words “Hedge Position” and   (iii) by immediately following the word “Transaction” in clause   (X) thereof, adding the phrase “in the manner contemplated by Dealer on   the Trade Date”; provided further that   (i) any determination as to whether (A) the adoption of or any   change in any applicable law or regulation (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)   or (B) the promulgation of or any change in the interpretation by any   court, tribunal or regulatory authority with competent jurisdiction of any   applicable law or regulation (including any action taken by a taxing   authority), in each case, constitutes a “Change in Law” shall be made without   regard to Section 739 of the Dodd-Frank Wall Street Reform and Consumer   Protection Act of 2010 or any similar legal certainty provision in any   legislation enacted, or rule or regulation promulgated, on or after the   Trade Date, and (ii) Section 12.9(a)(ii) of the Equity   Definitions is hereby amended by replacing the parenthetical beginning after   the word “regulation” in the second line thereof the words “(including, for   the avoidance of doubt and without limitation, (x) any tax law or (y) adoption   or promulgation of new regulations authorized or mandated by existing   statute)”.
    
	
 
    	
 
    	
 
    
	
(b)  Failure to Deliver:
    	
 
    	
Applicable
    
	
 
    	
 
    	
 
    
	
(c)  Insolvency Filing:
    	
 
    	
Applicable
    
	
 
    	
 
    	
 
    
	
(d)  Hedging Disruption:
    	
 
    	
Applicable
    
	
 
    	
 
    	
 
    
	
(e)  Increased Cost of Hedging:
    	
 
    	
Applicable
    
	
 
    	
 
    	
 
    
	
Hedging Party:
    	
 
    	
Dealer
    
	
 
    	
 
    	
 
    
	
Determining Party:
    	
 
    	
Dealer
    
	
 
    	
 
    	
 
    
	
Non-Reliance:
    	
 
    	
Applicable
    
	
 
    	
 
    	
 
    
	
Agreements and Acknowledgments Regarding   Hedging Activities:
    	
 
    	
Applicable
    
	
 
    	
 
    	
 
    
	
Additional Acknowledgments:
    	
 
    	
Applicable
    
	
 
    	
 
    	
 
    
	
3.     Calculation Agent:
    	
 
    	
Dealer
    
	
 
    	
 
    	
 
    
	
4.     Account Details:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Dealer Payment Instructions:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
SWIFT:   XXXXXXXXXX
    
	
Bank   Routing: XXXXXXXXX
    
	
Account   Name: Credit Suisse International
    
	
Account   No.: XXXXXXXXXX
    
	
 
    	
 
    	
 
    
	
Counterparty   Payment Instructions:
    


 











 

To be provided by Counterparty.

 

5.     Offices:

 

The Office of Dealer for the Transaction is:

 

Credit Suisse International

One Cabot Square

London E14 4QJ

England

 

The Office of Counterparty for the Transaction is:

 

Inapplicable, Counterparty is not a Multibranch Party.

 

6.     Notices: For purposes of this Confirmation:

 

(a)                                  Address for notices or communications to Counterparty:

 

	
To:
    	
Rudolph Technologies, Inc.
    
	
 
    	
One Rudolph Road
    
	
 
    	
P.O. Box 1000
    
	
 
    	
Flanders, New Jersey 07836
    
	
Attn:
    	
Robert A. Koch
    
	
Telephone:
    	
(973) 448-4487
    
	
Facsimile:
    	
(973) 691-1435
    
	
Email:
    	
robert.koch@rudolphtech.com
    


 

(b)                                 Address for notices or communications to Dealer:

 

	
To:
    	
Credit Suisse Securities   (USA) LLC
    
	
 
    	
Eleven Madison Avenue
    
	
 
    	
New York, NY 10010-3629
    
	
Attn:
    	
Steve Paek
    
	
Telephone:
    	
(212) 325-3081
    
	
Facsimile:
    	
(917) 326-8603
    
	
Email:
    	
steve.paek@credit-suisse.com
    


 

7.     Representations, Warranties and Agreements:

 

(a)           In addition to the representations and warranties in the Agreement and those contained elsewhere herein, Counterparty represents and warrants to and for the benefit of, and agrees with, Dealer as follows:

 

(i)            On the Trade Date, (A) none of Counterparty and its officers and directors is aware of any material nonpublic information regarding Counterparty or the Shares and (B) all reports and other documents filed by Counterparty with the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”) when considered as a whole (with the more recent such reports and documents deemed to amend inconsistent statements contained in any earlier such reports and documents), do not contain any untrue statement of a material fact or any omission of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading.

 

(ii)           On the Trade Date, neither Counterparty nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 of the Exchange Act (“Rule 10b-18”)) shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument other than the Transaction) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent

 











 

interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares.

 

(iii)          Without limiting the generality of Section 13.1 of the Equity Definitions, Counterparty acknowledges that Dealer is not making any representations or warranties or taking any position or expressing any view with respect to the treatment of the Transaction under any accounting standards including ASC Topic 260, Earnings Per Share, ASC Topic 815, Derivatives and Hedging, or ASC Topic 480, Distinguishing Liabilities from Equity and ASC 815-40, Derivatives and Hedging — Contracts in Entity’s Own Equity (or any successor issue statements) or under FASB’s Liabilities & Equity Project.

 

(iv)          Without limiting the generality of Section 3(a)(iii) of the Agreement, the Transaction will not violate Rule 13e-1 or Rule 13e-4 under the Exchange Act.

 

(v)           Prior to the Trade Date, Counterparty shall deliver to Dealer a resolution of Counterparty’s board of directors authorizing the Transaction and such other certificate or certificates as Dealer shall reasonably request.

 

(vi)          Counterparty is not entering into this Confirmation 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) or to otherwise violate the Exchange Act.

 

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

 

(viii)        On each of the Trade Date and the Premium Payment Date, 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 the Shares hereunder in compliance with the laws of the jurisdiction of Counterparty’s incorporation..

 

(ix)           The representations and warranties of Counterparty set forth in Section 3 of the Agreement and Section 2 of the Purchase Agreement between Issuer and Credit Suisse Securities (USA) LLC, as representative of the initial purchasers party thereto, are true and correct as of the Trade Date and the Effective Date and are hereby deemed to be repeated to Dealer as if set forth herein.

 

(b)           Each of Dealer and Counterparty agrees and represents that it is an “eligible contract participant” as defined in Section 1a(12) of the U.S. Commodity Exchange Act, as amended.

 

(c)           Each of Dealer and Counterparty acknowledges that the offer and sale of the Transaction to it is intended to be exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”), by virtue of Section 4(2) thereof.  Accordingly, Counterparty represents and warrants to Dealer that (i) it has the financial ability to bear the economic risk of its investment in the Transaction and is able to bear a total loss of its investment and its investments in and liabilities in respect of the Transaction, which it understands are not readily marketable, are not disproportionate to its net worth, and it is able to bear any loss in connection with the Transaction, including the loss of its entire investment in the Transaction, (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 the Transaction for its own account and without a view to the distribution or resale thereof, (iv) the assignment, transfer or other disposition of the Transaction has not been and will not be registered under the Securities Act and is restricted under this Confirmation, the Securities Act and state securities laws, and (v) its financial condition is such that it has no need for liquidity with respect to its investment in the Transaction and no need to dispose of any portion thereof to satisfy any existing or contemplated undertaking or indebtedness and is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks of the Transaction.

 

(d)           Each of Dealer and Counterparty agrees and acknowledges that Dealer is a “financial institution,” “swap participant” and “financial participant” within the meaning of Sections 101(22),

 











 

101(53C) and 101(22A) of Title 11 of the United States Code (the “Bankruptcy Code”).  The parties hereto further agree and acknowledge (A) that this Confirmation is (i) 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 is a “settlement payment,” as such term is defined in Section 741(8) of the Bankruptcy Code, and (ii) a “swap agreement,” as such term is defined in Section 101(53B) of the Bankruptcy Code, with respect to which each payment and delivery hereunder is a “transfer,” as such term is defined in Section 101(54) of the Bankruptcy Code, and (B) that Dealer is entitled to the protections afforded by, among other sections, Sections 362(b)(6), 362(b)(17), 546(e), 546(g), 555 and 560 of the Bankruptcy Code.

 

(e)           Each party acknowledges and agrees to be bound by the Conduct Rules of the National Association of Securities Dealers, Inc. applicable to transactions in options, and further agrees not to violate the position and exercise limits set forth therein.

 

(f)            Counterparty shall deliver to Dealer an opinion of counsel, dated as of the Trade Date and reasonably acceptable to Dealer in form and substance, with respect to the matters set forth in Section 3(a) of the Agreement.

 

8.  Other Provisions:

 

(a)           Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events.  If Dealer shall owe Counterparty any amount pursuant to “Consequences of Merger Events” above or Sections 12.6, 12.7 or 12.9 of the Equity Definitions or pursuant to Section 6(d)(ii) of the Agreement (a “Payment Obligation”), Counterparty shall have the right, in its sole discretion, to require Dealer to satisfy any such Payment Obligation by the Share Termination Alternative (as defined below) by giving irrevocable telephonic notice to Dealer, confirmed in writing within one Scheduled Trading Day, between the hours of 9:00 A.M. and 4:00 P.M. New York City time on the relevant merger date, announcement date, Early Termination Date or date of cancellation or termination in respect of an Additional Disruption Event (“Notice of Share Termination”); provided that if Counterparty does not elect to require Dealer to satisfy its Payment Obligation by the Share Termination Alternative, Dealer shall have the right, in its sole discretion, to elect to satisfy its Payment Obligation by the Share Termination Alternative, notwithstanding Counterparty’s failure to elect or election to the contrary; and provided further that Counterparty shall not have the right to so elect (but, for the avoidance of doubt, Dealer shall have the right to so elect) in the event of (i) an Insolvency, a Nationalization or a Merger Event, in each case, in which the consideration or proceeds to be paid to holders of Shares consists solely of cash or (ii) an Event of Default in which Counterparty is the Defaulting Party or a Termination Event in which Counterparty is the Affected Party, which Event of Default or Termination Event resulted from an event or events within Counterparty’s control.  Upon such Notice of Share Termination, the following provisions shall apply on the Scheduled Trading Day immediately following the relevant merger date, announcement date, Early Termination Date or date of cancellation or termination in respect of an Additional Disruption Event, as applicable:

 

	
Share Termination Alternative:
    	
 
    	
Applicable and means that Dealer shall   deliver to Counterparty the Share Termination Delivery Property on the date   on which the Payment Obligation would otherwise be due pursuant to   “Consequences of Merger Events” above, Section 12.7 or 12.9 of the   Equity Definitions or Section 6(d)(ii) of the Agreement, as   applicable (the “Share Termination   Payment Date”), in satisfaction of the Payment Obligation.
    
	
 
    	
 
    	
 
    
	
Share Termination Delivery Property:
    	
 
    	
A number of Share Termination Delivery Units,   as calculated by the Calculation Agent, equal to the Payment Obligation   divided by the Share Termination Unit Price. The Calculation Agent shall   adjust the Share Termination Delivery Property by replacing any fractional   portion of the aggregate amount of a security therein with an amount of cash   equal to the value of such fractional security based on the values used to   calculate the Share Termination Unit Price.
    


 












 

	
Share Termination Unit Price:
    	
 
    	
The value of property contained in one Share   Termination Delivery Unit on the date such Share Termination Delivery Units   are to be delivered as Share Termination Delivery Property, as determined by   the Calculation Agent in its discretion by commercially reasonable means and   notified by the Calculation Agent to Dealer at the time of notification of   the Payment Obligation.
    
	
 
    	
 
    	
 
    
	
Share Termination Delivery Unit:
    	
 
    	
In the case of a Termination Event, Event of   Default, Delisting or Additional Disruption Event, one Share or, in the case of an Insolvency, Nationalization or   Merger Event, one Share or a unit consisting of the number or amount of each   type of property received by a holder of one Share (without consideration of   any requirement to pay cash or other consideration in lieu of fractional   amounts of any securities) in such Insolvency, Nationalization or Merger   Event. If such Insolvency, Nationalization 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.
    
	
 
    	
 
    	
 
    
	
Other applicable provisions:
    	
 
    	
If Share Termination Alternative is   applicable, the provisions of Sections 9.8, 9.9, 9.11 and 9.12 of the Equity   Definitions will be applicable as if “Physical Settlement” applied to the   Transaction, except that all references to “Shares” shall be read as   references to “Share Termination Delivery Units”; provided that 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 as a result of   the fact that Buyer is the issuer of any Share Termination Delivery Units (or   any part thereof).
    


 

(b)           Disposition of Hedge Shares.  Counterparty hereby agrees that if, in the good faith reasonable judgment of Dealer, the Shares (the “Hedge Shares”) acquired by Dealer for the purpose of hedging its obligations pursuant to the Transaction cannot be sold in the U.S. public market by Dealer without registration under the Securities Act, Counterparty shall, at its election: (i) in order to allow Dealer to sell the Hedge Shares in a registered offering, make available to Dealer an effective registration statement under the Securities Act to cover the resale of such Hedge Shares and (A) enter into an agreement, in form and substance satisfactory to Dealer, substantially in the form of an underwriting agreement for a registered offering, (B) provide accountant’s “comfort” letters in customary form for registered offerings of equity securities, (C) provide disclosure opinions of nationally recognized outside counsel to Counterparty reasonably acceptable to Dealer, (D) provide other customary opinions, certificates and closing documents customary in form for registered offerings of equity securities and (E) afford Dealer a reasonable opportunity to conduct a “due diligence” investigation with respect to Counterparty customary in scope for underwritten offerings of equity securities; provided, however, that if Dealer, in its sole reasonable discretion, is not satisfied with access to due diligence materials, the results of its due diligence investigation, or the procedures and documentation for the registered offering referred to above, then clause (ii) or clause (iii) of this Section 8(b) shall apply at the election of Counterparty; (ii) in order to allow Dealer to sell the Hedge Shares in a private placement, to enter into a private placement agreement substantially similar to private placement purchase agreements customary for private placements of equity securities, in form and substance satisfactory to Dealer, including customary representations, covenants, blue sky and other governmental filings and/or registrations, indemnities to Dealer, due diligence rights (for Dealer or any designated buyer of the Hedge Shares from Dealer), opinions and certificates and such other documentation as is customary for private placements agreements, all reasonably acceptable to Dealer (in which case, the Calculation Agent shall make any adjustments to the terms of the Transaction that are necessary, in its reasonable judgment, to compensate Dealer for any discount from the public market price of the Shares incurred on the sale of Hedge Shares in a private placement); or (iii) purchase the Hedge Shares from Dealer at the VWAP Price on such Exchange Business Days, and in the amounts, requested by Dealer.  “VWAP Price” means, on any Exchange Business Day, the per Share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page RTEC <equity> VAP (or

 











 

any successor thereto) in respect of the period from 9:30 a.m. to 4:00 p.m. (New York City time) on such Exchange Business Day (or if such volume-weighted average price is unavailable, the market value of one Share on such Exchange Business Day, as determined by the Calculation Agent using a volume-weighted method).

 

(c)           Repurchase Notices.  Counterparty shall, on any day on which Counterparty effects any repurchase of Shares, promptly give Dealer a written notice of such repurchase (a “Repurchase Notice”) on such day if, following such repurchase, the Notice Percentage as determined on such day is (i) greater than 5% and (ii) greater by 0.5% than the Notice Percentage included in the immediately preceding Repurchase Notice (or, in the case of the first such Repurchase Notice, greater than the Notice Percentage as of the date hereof).  The “Notice Percentage” as of any day is the fraction, expressed as a percentage, the numerator of which is the Number of Shares and the denominator of which is the number of Shares outstanding on such day.  In the event that Counterparty fails to provide Dealer with a Repurchase Notice on the day and in the manner specified in this Section 8(c) then Counterparty agrees to indemnify and hold harmless Dealer, its affiliates and their respective directors, officers, employees, agents and controlling persons (Dealer and each such person being an “Indemnified Party”) from and against any and all losses, claims, damages and liabilities (or actions in respect thereof), joint or several, to which such Indemnified Party may become subject under applicable securities laws, including without limitation, Section 16 of the Exchange Act, relating to or arising out of such failure.  If for any reason the foregoing indemnification is unavailable to any Indemnified Party or insufficient to hold harmless any Indemnified Party, then Counterparty shall contribute, to the maximum extent permitted by law, to the amount paid or payable by the Indemnified Party as a result of such loss, claim, damage or liability.  In addition, Counterparty will reimburse any Indemnified Party for all expenses (including reasonable counsel fees and expenses) as they are incurred (after notice to Counterparty) in connection with the investigation of, preparation for or defense or settlement of any pending or threatened claim or any action, suit or proceeding arising therefrom, whether or not such Indemnified Party is a party thereto and whether or not such claim, action, suit or proceeding is initiated or brought by or on behalf of Counterparty.  This indemnity shall survive the completion of the Transaction contemplated by this Confirmation and any assignment and delegation of the Transaction made pursuant to this Confirmation or the Agreement shall inure to the benefit of any permitted assignee of Dealer.

 

(d)           Additional Termination Events.  The occurrence of (i) an event of default with respect to Counterparty under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture, (ii) an Amendment Event or (iii) a Repurchase Event shall be an Additional Termination Event with respect to which the Transaction is the sole Affected Transaction and Counterparty is the sole Affected Party, and Dealer shall be the sole party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement.

 

“Amendment Event” means that Counterparty amends, modifies, supplements or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, redemption right of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion price, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend, in each case without the prior consent of Dealer.

 

“Repurchase Event” means that (i) any Convertible Notes are repurchased for any reason by Counterparty or any of its subsidiaries, (ii) any Convertible Notes are delivered to Counterparty in exchange for delivery of any property or assets of Counterparty or any of its subsidiaries (howsoever described), (iii) any principal of any of the Convertible Notes is repaid prior to the final maturity date of the Convertible Notes (whether following acceleration of the Convertible Notes or otherwise), or (iv) any Convertible Notes are exchanged by or for the benefit of the holders thereof for any other securities of Counterparty or any of its affiliates (or any other property, or any combination thereof) pursuant to any exchange offer or similar transaction.  For the avoidance of doubt, any conversion of Convertible Notes pursuant to the terms of the Indenture shall not constitute a Repurchase Event.

 

(e)           Right to Extend.  Dealer may postpone any Settlement Date or any other date of valuation or delivery by Dealer, with respect to some or all of the relevant Options (in which event the Calculation

 











 

Agent shall make appropriate adjustments to the Delivery Obligation), if Dealer determines, in its reasonable discretion, that such extension is reasonably necessary or appropriate to preserve Dealer’s hedging or hedge unwind activity hereunder in light of existing liquidity conditions in the cash market or the stock borrow market or other relevant market or to enable Dealer to effect purchases of Shares in connection with its hedging, hedge unwind or settlement activity hereunder in a manner that would, if Dealer were Counterparty or an affiliated purchaser of Counterparty, be in compliance with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to Dealer.

 

(f)            Staggered Settlement. Dealer may, by notice to Counterparty prior to any Settlement Date (a “Nominal Settlement Date”), elect to deliver the Shares on one or more dates (each, a “Staggered Settlement Date”) or at two or more times on the Nominal Settlement Date as follows:

 

(i)            in such notice, Dealer will specify to Counterparty the related Staggered Settlement Dates (each of which will be on or prior to the date that follows such Nominal Settlement Date by 20 Trading Days (as defined in the Indenture), but not prior to the relevant Conversion Date) or delivery times and how it will allocate the Shares it is required to deliver under “Delivery Obligation” (above) among the Staggered Settlement Dates or delivery times; and

 

(ii)           the aggregate number of Shares that Dealer will deliver to Counterparty hereunder on all such Staggered Settlement Dates and delivery times will equal the number of Shares that Dealer would otherwise be required to deliver on such Nominal Settlement Date.

 

(g)           Transfer and Assignment.  Either party may transfer any of its rights or obligations under the Transaction with the prior written consent of the non-transferring party, such consent not to be unreasonably withheld; provided that Dealer may transfer or assign without any consent of Counterparty its rights and obligations hereunder, in whole or in part, to (i) any of its affiliates or (ii) any person of credit quality equivalent to Dealer; provided further that at any time at which (1) the Equity Percentage exceeds 5%, (2) Dealer, Dealer Group (as defined below) or any person whose ownership position would be aggregated with that of Dealer or Dealer Group (Dealer, Dealer Group or any such person, a “Dealer Person”) under Section 203 of the Delaware General Corporation Law (the “DGCL Takeover Statute”) or any state or federal bank holding company or banking laws, or other federal, state or local regulations or regulatory orders applicable to ownership of Shares (“Applicable Laws”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership in excess of a number of Shares equal to (x) the number of Shares that would give rise to reporting or registration obligations or other requirements (including obtaining prior approval by a state or federal regulator) of a Dealer Person under Applicable Laws (including, without limitation, “interested stockholder” or “acquiring person” status under the DGCL Takeover Statute) and with respect to which such requirements have not been met or the relevant approval has not been received minus (y) 2% of the number of Shares outstanding on the date of determination (either such condition described in clause (1) or (2), an “Excess Ownership Position”), or (3) a Hedging Disruption has occurred and is continuing, if Dealer, in its discretion, is unable to effect a transfer or assignment to a third party in accordance with the requirements set forth above after using its commercially reasonable efforts on pricing terms reasonably acceptable to Dealer such that an Excess Ownership Position or a Hedging Disruption, as the case may be, no longer exists, Dealer may designate any Scheduled Trading Day as an Early Termination Date with respect to a portion (the “Terminated Portion”) of the Transaction, such that such Excess Ownership Position or Hedging Disruption, as the case may be, no longer exists.  In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment or delivery shall be made pursuant to Section 6 of the Agreement and Section 8(a) of this Confirmation as if (i) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Terminated Portion of the Transaction, (ii) Counterparty shall be the sole Affected Party with respect to such partial termination and (iii) such portion of the Transaction shall be the only Terminated Transaction.  The “Equity Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Dealer and any of its affiliates subject to aggregation with Dealer for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act and all persons who may form a “group” (within the meaning of Rule 13d-5(b)(1) under the Exchange Act) with Dealer (collectively, “Dealer Group”) “beneficially own” (within the meaning of Section 13 of the Exchange Act) without duplication on such day and (B) the denominator of which is the number of Shares outstanding on such day.

 











 

(h)           Equity Rights.  Dealer acknowledges and agrees that this Confirmation is not intended to convey to it rights with respect to the Transaction that are senior to the claims of common stockholders in the event of Counterparty’s bankruptcy.  For the avoidance of doubt, the parties agree that the preceding sentence shall not apply at any time other than during Counterparty’s bankruptcy to any claim arising as a result of a breach by Counterparty of any of its obligations under this Confirmation or the Agreement.  For the avoidance of doubt, the parties acknowledge that this Confirmation is not secured by any collateral that would otherwise secure the obligations of Counterparty herein under or pursuant to any other agreement.

 

(i)            Netting and Set-off.

 

(i)            If on any date cash would otherwise be payable or Shares or other property would otherwise be deliverable hereunder or pursuant to the Agreement or pursuant to any other agreement between the parties by Counterparty to Dealer and cash would otherwise be payable or Shares or other property would otherwise be deliverable hereunder or pursuant to the Agreement or pursuant to any other agreement between the parties by Dealer to Counterparty and the type of property required to be paid or delivered by each such party on such date is the same, then, on such date, each such party’s obligation to make such payment or delivery will be automatically satisfied and discharged and, if the aggregate amount that would otherwise have been payable or deliverable by one such party exceeds the aggregate amount that would otherwise have been payable or deliverable by the other such party, replaced by an obligation of the party by whom the larger aggregate amount would have been payable or deliverable to pay or deliver to the other party the excess of the larger aggregate amount over the smaller aggregate amount.

 

(ii)           In addition to and without limiting any rights of set-off that a party hereto may have as a matter of law, pursuant to contract or otherwise, upon the occurrence of an Early Termination Date, Dealer shall have the right to terminate, liquidate and otherwise close out the Transaction and to set off any obligation or right that Dealer or any affiliate of Dealer may have to or against Counterparty hereunder or under the Agreement against any right or obligation Dealer or any of its affiliates may have against or to Counterparty, including without limitation any right to receive a payment or delivery pursuant to any provision of the Agreement or hereunder.  In the case of a set-off of any obligation to release, deliver or pay assets against any right to receive assets of the same type, such obligation and right shall be set off in kind.  In the case of a set-off of any obligation to release, deliver or pay assets against any right to receive assets of any other type, the value of each of such obligation and such right shall be determined by the Calculation Agent and the result of such set-off shall be that the net obligor shall pay or deliver to the other party an amount of cash or assets, at the net obligor’s option, with a value (determined, in the case of a delivery of assets, by the Calculation Agent) equal to that of the net obligation.  In determining the value of any obligation to release or deliver Shares or any right to receive Shares, the value at any time of such obligation or right shall be determined by reference to the market value of the Shares at such time, as determined by the Calculation Agent.  If an obligation or right is unascertained at the time of any such set-off, the Calculation Agent may in good faith estimate the amount or value of such obligation or right, in which case set-off will be effected in respect of that estimate, and the relevant party shall account to the other party at the time such obligation or right is ascertained.

 

(iii)          Notwithstanding any provision of the Agreement (including without limitation Section 6(f) thereof) and this Confirmation (including without limitation this Section 8(i)) or any other agreement between the parties to the contrary, (A) Counterparty shall not net or set off its obligations under the Transaction, if any, against its rights against Dealer under any other transaction or instrument, (B) Dealer may net and set off any rights of Dealer against Counterparty arising under the Transaction only against obligations of Dealer to Counterparty arising under any transaction or instrument if such transaction or instrument does not convey rights to Dealer senior to the claims of common stockholders in the event of Counterparty’s bankruptcy and (C) in the event of bankruptcy or liquidation of Counterparty or Dealer, neither party shall have the right to set off any obligation that it may have to the other party under the Transaction against any obligation such other party may have to it under the Agreement, this Confirmation or any other agreement between the parties hereto, by operation of law or otherwise.  Dealer will give notice to Counterparty of any netting or set off effected under this provision.

 











 

(j)            Early Unwind.  In the event the sale by Counterparty of the Convertible Notes is not consummated with the initial purchasers for any reason by the close of business in New York on July 25, 2011 (or such later date as agreed upon by the parties, which in no event shall be later than August 1, 2011) (July 25, 2011 or such later date being the “Early Unwind Date”), the Transaction shall automatically terminate (the “Early Unwind”), on the Early Unwind Date and (i) the Transaction and all of the respective rights and obligations of Dealer and Counterparty thereunder shall be cancelled and terminated and (ii) Counterparty shall pay to Dealer an amount in cash equal to the aggregate amount of costs and expenses relating to the unwinding of Dealer’s hedging activities in respect of the Transaction (including market losses incurred in reselling any Shares purchased by Dealer or its affiliates in connection with such hedging activities, unless Counterparty agrees to purchase any such Shares at the cost at which Dealer purchased such Shares).  Following such termination, cancellation and payment, each party shall be released and discharged by the other party from and agrees not to make any claim against the other party with respect to any obligations or liabilities of either party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date.

 

(k)           Amendment to the Equity Definitions.  Section 12.9(b)(i) of the Equity Definitions is hereby amended by (1) replacing “either party may elect” with “Dealer may elect” and (2) replacing “notice to the other party” with “notice to Counterparty” in the first sentence of such section.

 

(l)            Designation by Dealer.  Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing Dealer to purchase, sell, receive or deliver any Shares or other securities to or from Counterparty, Dealer may designate any of its affiliates to purchase, sell, receive or deliver such Shares or other securities and otherwise to perform Dealer’s obligations in respect of the Transaction and any such designee may perform such obligations.  Dealer shall be discharged of its obligations to Counterparty to the extent of any such performance.

 

(m)          Disclosure.  Effective from the date of commencement of discussions concerning the Transaction, Counterparty and each of its employees, representatives, or other agents may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all materials of any kind (including opinions or other tax analyses) that are provided to Counterparty relating to such tax treatment and tax structure.

 

(n)           Tax Representations and Forms.  Counterparty (x) represents that for the purpose of Section 3(f) of the Agreement, it is a “U.S. Person” (as that term is used in Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended), and (y) for purposes of Sections 4(a)(i) and 4(a)(iii) of the Agreement, agrees to deliver U.S. Internal Revenue Service Form W-9 (A) prior to execution of the Agreement, promptly upon reasonable demand by Dealer and promptly upon learning that any form or other document previously provided by Counterparty has become obsolete or incorrect.

 

(o)           Counterparts. This Confirmation may be executed in several counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.

 

(p)           Waiver of Trial by Jury.  EACH OF COUNTERPARTY AND DEALER HEREBY IRREVOCABLY WAIVES (ON ITS OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS STOCKHOLDERS) ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE TRANSACTION OR THE ACTIONS OF COUNTERPARTY OF ITS AFFILIATES OR DEALER OR ITS AFFILIATES IN THE NEGOTIATION, PERFORMANCE OR ENFORCEMENT HEREOF.

 

(q)           Submission to Jurisdiction and Governing Law.  Each party hereby irrevocably and unconditionally submits for itself and its property in any legal action or proceeding by the other party against it relating to the Transaction to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the exclusive jurisdiction of the Supreme Court of the State of New York, sitting in New York County, the courts of the United States of America for the Southern District of New York, and appellate courts from any thereof.  THIS CONFIRMATION SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO ITS CHOICE OF LAW DOCTRINE).

 

(r)            Illegality.  The parties agree that for the avoidance of doubt, for purposes of Section

 











 

5(b)(i) of the Agreement, “any applicable law” shall include the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, any rules and regulations promulgated thereunder and any similar law or regulation, without regard to Section 739 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 or any similar legal certainty provision in any legislation enacted, or rule or regulation promulgated, on or after any Trade Date, and the consequences specified in the Agreement, including without limitation, the consequences specified in Section 6 of the Agreement, shall apply to any Illegality arising from any such act, rule or regulation.

 

(s)           Role of Agent.  Credit Suisse Securities (USA) LLC, in its capacity as Agent will be responsible for (A) effecting this Transaction, (B) issuing all required confirmations and statements to Dealer and Counterparty, (C) maintaining books and records relating to this Transaction in accordance with its standard practices and procedures and in accordance with applicable law and (D) unless otherwise requested by Counterparty, receiving, delivering, and safeguarding Counterparty’s funds and any securities in connection with this Transaction, in accordance with its standard practices and procedures and in accordance with applicable law.

 

(i)                                     Agent is acting in connection with this Transaction solely in its capacity as Agent for Dealer and Counterparty pursuant to instructions from Dealer and Counterparty.  Agent shall have no responsibility or personal liability to Dealer or Counterparty arising from any failure by Dealer or Counterparty to pay or perform any obligations hereunder, or to monitor or enforce compliance by Dealer or Counterparty with any obligation hereunder, including, without limitation, any obligations to maintain collateral.  Each of Dealer 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 this Transaction.  Agent shall otherwise have no liability in respect of this Transaction, except for its gross negligence or willful misconduct in performing its duties as Agent.

 

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

 

Credit Suisse Securities (USA) LLC
 Eleven Madison Avenue
 New York, NY 10010-3629

 

For payments and deliveries:
 Facsimile No.: (212) 325 8175
 Telephone No.: (212) 325 8678 / (212) 325 3213

 

For all other communications:
 Facsimile No.: (212) 325 8173
 Telephone No.: (212) 325 8676 / (212) 538 5306 / (212) 538 1193 / (212) 538 6886

 

(iii)                               The date and time of the Transaction evidenced hereby will be furnished by the Agent to Dealer and Counterparty upon written request.

 

(iv)                              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 the Transaction evidenced hereby.

 

(v)                                 Dealer and Counterparty each represents and agrees (A) that this Transaction is not unsuitable for it in the light of such party’s financial situation, investment objectives and needs and (B) that it is entering into this 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.

 











 

(vi)                              Dealer is regulated by The Securities and Futures Authority and has entered into this Transaction as principal. The time at which this Transaction was executed will be notified to Counterparty (through the Agent) on request.

 

Counterparty hereby agrees (a) to check this Confirmation carefully and immediately upon receipt so that errors or discrepancies can be promptly identified and rectified and (b) to confirm that the foregoing (in the exact form provided by Dealer) correctly sets forth the terms of the agreement between Dealer and Counterparty with respect to the Transaction, by manually signing this Confirmation or this page hereof as evidence of agreement to such terms and providing the other information requested herein and immediately returning an executed copy to Credit Suisse Securities (USA) LLC, Eleven Madison Avenue, New York, NY 10010-3629, Facsimile No. (212) 325-8173.

 

	
 
    	
Yours faithfully,
    
	
 
    	
 
    
	
 
    	
CREDIT SUISSE INTERNATIONAL
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Shui Wong
    
	
 
    	
 
    	
Name: Shui Wong
    
	
 
    	
 
    	
Title: Authorized Signatory
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Joyce Lim
    
	
 
    	
 
    	
Name: Joyce Lim
    
	
 
    	
 
    	
Title: Authorized Signatory
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
CREDIT   SUISSE SECURITIES (USA) LLC AS AGENT FOR CREDIT SUISSE INTERNATIONAL
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Shui Wong
    
	
 
    	
 
    	
Name: Shui Wong
    
	
 
    	
 
    	
Title: Vice President
    
	
 
    	
 
    
	
 
    	
 
    
	
Agreed and Accepted By:
    	
 
    
	
 
    	
 
    
	
RUDOLPH TECHNOLOGIES, INC.
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
By:
    	
/s/ Paul F. McLaughlin
    	
 
    	
 
    
	
 
    	
Name: Paul F. McLaughlin
    	
 
    
	
 
    	
Title: CEO & Chairman