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.
16.
UNWIND.
IN THE EVENT THE SALE OF THE
CONVERTIBLE NOTES IS NOT CONSUMMATED WITH THE INITIAL PURCHASERS PURSUANT TO THE
UNDERWRITING AGREEMENT, FOR ANY REASON BY THE CLOSE OF BUSINESS IN NEW YORK ON
APRIL 15, 2009 (OR SUCH LATER DATE AS AGREED UPON BY THE PARTIES WHICH IN NO
EVENT SHALL BE LATER THAN THE THIRD SCHEDULED TRADING DAY FOLLOWING APRIL 15,
2009) (SUCH DATE OR SUCH LATER DATE AS AGREED UPON BEING THE "ACCELERATED UNWIND
DATE"), THIS TRANSACTION SHALL AUTOMATICALLY TERMINATE (THE "ACCELERATED
UNWIND") ON THE ACCELERATED UNWIND DATE AND (I) THIS TRANSACTION AND ALL OF THE
RESPECTIVE RIGHTS AND OBLIGATIONS OF DEALER AND COUNTERPARTY UNDER THIS
TRANSACTION SHALL BE CANCELLED AND TERMINATED AND (II) EACH PARTY SHALL BE
RELEASED AND DISCHARGED BY THE OTHER PARTY FROM AND AGREES NOT TO MAKE ANY CLAIM
AGAINST THE OTHER PARTY WITH RESPECT TO ANY OBLIGATIONS OR LIABILITIES OF THE
OTHER PARTY ARISING OUT OF AND TO BE PERFORMED IN CONNECTION WITH THIS
TRANSACTION EITHER PRIOR TO OR AFTER THE ACCELERATED UNWIND DATE; PROVIDED THAT
COUNTERPARTY SHALL REIMBURSE DEALER FOR ANY COSTS OR EXPENSES (INCLUDING MARKET
LOSSES) RELATING TO THE UNWINDING OF ITS HEDGING ACTIVITIES IN CONNECTION WITH
THE TRANSACTION (INCLUDING ANY LOSS OR COST INCURRED AS A RESULT OF ITS
TERMINATING, LIQUIDATING, OBTAINING OR REESTABLISHING ANY HEDGE OR RELATED
TRADING POSITION), WHICH SHALL BE PAID IN CASH OR SHARES AT THE OPTION OF THE
COUNTERPARTY (AND IF PAID IN SHARES, WITH THE MARKET VALUATION OF SUCH SHARES
BEING DETERMINED IN A COMMERCIALLY REASONABLE MANNER BY THE CALCULATION AGENT).
THE AMOUNT OF ANY SUCH REIMBURSEMENT SHALL BE DETERMINED BY DEALER IN ITS SOLE
GOOD FAITH DISCRETION.
DEALER SHALL NOTIFY COUNTERPARTY OF SUCH AMOUNT AND
COUNTERPARTY SHALL PAY SUCH AMOUNT IN IMMEDIATELY AVAILABLE FUNDS ON THE EARLY
UNWIND DATE.
DEALER AND COUNTERPARTY REPRESENT AND ACKNOWLEDGE TO THE OTHER
THAT UPON AN ACCELERATED UNWIND AND THE SATISFACTION OF COUNTERPARTY'S PAYMENT
OBLIGATION, IF ANY, AS SPECIFIED IN THIS SECTION 16, ALL OBLIGATIONS WITH
RESPECT TO THIS TRANSACTION SHALL BE DEEMED FULLY AND FINALLY DISCHARGED.
17.
ADDITIONAL PROVISIONS.
COUNTERPARTY UNDERSTANDS AND AGREES THAT
AGENT WILL ACT AS AGENT FOR BOTH PARTIES WITH RESPECT TO THE TRANSACTION.
AGENT
IS SO ACTING SOLELY IN ITS CAPACITY AS AGENT FOR COUNTERPARTY AND DEALER
PURSUANT TO INSTRUCTIONS FROM COUNTERPARTY AND DEALER.
AGENT SHALL HAVE NO
RESPONSIBILITY OR PERSONAL LIABILITY TO EITHER PARTY ARISING FROM ANY FAILURE BY
EITHER PARTY TO PAY OR PERFORM ANY OBLIGATION UNDER THE TRANSACTION.
EACH PARTY
AGREES TO PROCEED SOLELY AGAINST THE OTHER TO COLLECT OR RECOVER ANY AMOUNT
OWING TO IT OR ENFORCE ANY OF ITS RIGHTS IN CONNECTION WITH OR AS A RESULT OF
THE TRANSACTION.
Whenever delivery of funds or other assets is required hereunder by or to
Counterparty, such delivery shall be effected