DATE (A "NOMINAL SETTLEMENT
13
DATE"), ELECT TO DELIVER ANY SHARES DUE HEREUNDER ON TWO 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 SUCH NOMINAL SETTLEMENT DATE, BUT NOT PRIOR TO THE BEGINNING OF SUCH
"CONVERSION REFERENCE PERIOD") 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;
(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; AND
(III)
IF COUNTERPARTY DECLARES A DIVIDEND OR OTHER
DISTRIBUTION WITH RESPECT TO SHARES WITH AN EX DIVIDEND DATE FALLING ON OR AFTER
A NOMINAL SETTLEMENT DATE AND PRIOR TO A STAGGERED SETTLEMENT DATE, THEN IN
ADDITION TO ANY SHARES IT DELIVERS ON SUCH A STAGGERED SETTLEMENT DATE, DEALER
SHALL DELIVER TO COUNTERPARTY THE AMOUNT OF SUCH DIVIDEND OR OTHER DISTRIBUTION
IN RESPECT OF SUCH SHARES ON THE BUSINESS DAY NEXT FOLLOWING ITS RECEIPT OF SUCH
DIVIDEND OR DISTRIBUTION.
The "Staggered Settlement Equity Percentage" as of any day is the fraction,
expressed as a percentage, (A) the numerator of which is the sum of (x) the
number of Shares that Dealer or any of its affiliates beneficially own (within
the meaning of Section 13 of the Exchange Act) on such day, other than any
Shares so owned as a hedge of the Transaction, and (y) the Number of Shares and
(B) the denominator of which is the number of Shares outstanding on such day.
(I)
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.
(J)
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.
(K)
NETTING AND SET-OFF.
EACH PARTY WAIVES ANY
AND ALL RIGHTS IT MAY HAVE TO SET OFF, WHETHER ARISING UNDER ANY AGREEMENT,
APPLICABLE LAW OR OTHERWISE.
THE PROVISIONS OF SECTION 2(C) OF THE AGREEMENT
SHALL NOT BE APPLICABLE