SALE BY
COUNTERPARTY OF THE CONVERTIBLE NOTES IS NOT CONSUMMATED WITH THE INITIAL
PURCHASERS PURSUANT TO THE PURCHASE AGREEMENT FOR ANY REASON BY THE CLOSE OF
BUSINESS IN NEW YORK ON MARCH 16, 2007 (OR SUCH LATER DATE AS AGREED UPON BY THE
PARTIES, WHICH IN NO EVENT SHALL BE LATER THAN MARCH 23, 2007) (MARCH 16, 2007
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, OTHER THAN IN CASES INVOLVING A BREACH OF THE PURCHASE
AGREEMENT BY THE INITIAL PURCHASERS, 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.
DEALER AND COUNTERPARTY REPRESENT AND ACKNOWLEDGE TO THE
OTHER THAT UPON AN EARLY UNWIND AND FOLLOWING THE PAYMENT REFERRED TO ABOVE, ALL
OBLIGATIONS WITH RESPECT TO THE TRANSACTION SHALL BE DEEMED FULLY AND FINALLY
DISCHARGED.
(l)
Governing Law.
THE AGREEMENT AND THIS CONFIRMATION SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO ITS CHOICE
OF LAW DOCTRINE).
(o)
Method of Delivery.
Whenever delivery of funds or other assets is
required hereunder by or to Counterparty, such delivery shall be effected
through Deutsche Bank AG, New York Branch ("DBNY").
In addition, all notices,
demands and communications of any kind relating to the Transaction between
Deutsche and Counterparty shall be transmitted exclusively through DBNY.
9.
Arbitration.
(A)
ALL PARTIES TO THIS CONFIRMATION ARE GIVING UP THE RIGHT TO SUE EACH OTHER
IN COURT, INCLUDING THE RIGHT TO A TRIAL BY JURY, EXCEPT AS PROVIDED BY THE
RULES OF THE ARBITRATION FORUM IN WHICH A CLAIM IS FILED.
(B)
ARBITRATION AWARDS ARE GENERALLY FINAL AND BINDING; A PARTY'S ABILITY TO
HAVE A COURT REVERSE OR MODIFY AN ARBITRATION AWARD IS VERY LIMITED.
15
(C)
THE ABILITY OF THE PARTIES TO OBTAIN DOCUMENTS, WITNESS STATEMENTS AND
OTHER DISCOVERY IS GENERALLY MORE LIMITED IN ARBITRATION THAN IN COURT
PROCEEDINGS.
(D)
THE ARBITRATORS DO NOT HAVE TO EXPLAIN THE REASON(S) FOR THEIR AWARD.
(E)
THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF ARBITRATORS
WHO WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY, UNLESS COUNTERPARTY IS
A MEMBER OF THE ORGANIZATION