DEFINITIONS TO TAKE INTO ACCOUNT THE EFFECT OF AN EVENT, THE CALCULATION
AGENT SHALL MAKE SUCH ADJUSTMENT BY REFERENCE TO THE EFFECT OF SUCH EVENT ON THE
HEDGING PARTY, ASSUMING THAT THE HEDGING PARTY MAINTAINS A COMMERCIALLY
REASONABLE HEDGE POSITION.
(J)
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.
(K)
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 OBLIGATIONS IN
RESPECT OF THE TRANSACTION AND ANY SUCH DESIGNEE MAY ASSUME SUCH OBLIGATIONS.
DEALER SHALL BE DISCHARGED OF ITS OBLIGATIONS TO COUNTERPARTY TO THE EXTENT OF
ANY SUCH PERFORMANCE.
(L)
NO NETTING AND SET-OFF.
EACH PARTY WAIVES ANY AND ALL RIGHTS IT MAY HAVE
TO SET OFF OBLIGATIONS ARISING UNDER THE AGREEMENT AND THE TRANSACTION AGAINST
OTHER OBLIGATIONS BETWEEN THE PARTIES, WHETHER ARISING UNDER ANY OTHER
AGREEMENT, APPLICABLE LAW OR OTHERWISE.
14
(M)
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.
(N)
EARLY UNWIND.
(I) IN THE EVENT THE SALE BY COUNTERPARTY OF THE
CONVERTIBLE SECURITIES IS NOT CONSUMMATED WITH THE INITIAL PURCHASERS PURSUANT
TO THE UNDERWRITING AGREEMENT FOR ANY REASON BY THE CLOSE OF BUSINESS IN NEW
YORK ON NOVEMBER 17, 2009 (OR SUCH LATER DATE AS AGREED UPON BY THE PARTIES,
WHICH IN NO EVENT SHALL BE LATER THAN NOVEMBER 24, 2009) (NOVEMBER 17, 2009 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