HAS NOT BEEN
RECEIVED OR THAT WOULD GIVE RISE TO ANY
13
CONSEQUENCES UNDER THE CONSTITUTIVE DOCUMENTS OF COUNTERPARTY OR ANY CONTRACT OR
AGREEMENT TO WHICH COUNTERPARTY IS A PARTY, IN EACH CASE MINUS (Y) 1% OF THE
NUMBER OF SHARES OUTSTANDING ON THE DATE OF DETERMINATION.
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
OR ANY OTHER PERSON SUBJECT TO AGGREGATION WITH DEALER, FOR PURPOSES OF THE
"BENEFICIAL OWNERSHIP" TEST UNDER SECTION 13 OF THE EXCHANGE ACT, OR OF ANY
"GROUP" (WITHIN THE MEANING OF SECTION 13) OF WHICH DEALER IS OR MAY BE DEEMED
TO BE A PART (DEALER AND ANY SUCH AFFILIATES, PERSONS AND GROUPS, COLLECTIVELY,
"DEALER GROUP"), BENEFICIALLY OWNS (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.
(G)
STAGGERED SETTLEMENT.
DEALER MAY, BY NOTICE TO COUNTERPARTY ON OR PRIOR
TO ANY SETTLEMENT DATE (A "NOMINAL SETTLEMENT DATE"), ELECT TO DELIVER THE
SHARES 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 THE RELATED "OBSERVATION
PERIOD" AS DEFINED IN THE INDENTURE) 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.
(H)
RIGHT TO EXTEND.
DEALER MAY POSTPONE ANY EXERCISE DATE OR 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 (I) PRESERVE DEALER'S HEDGING OR HEDGE UNWIND ACTIVITY HEREUNDER
IN LIGHT OF EXISTING LIQUIDITY CONDITIONS IN THE CASH MARKET, THE STOCK LOAN
MARKET OR ANY OTHER RELEVANT MARKET OR (II) 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.
(I)
ADJUSTMENTS.
FOR THE AVOIDANCE OF DOUBT, WHENEVER THE CALCULATION AGENT
IS CALLED UPON TO MAKE AN ADJUSTMENT PURSUANT TO THE TERMS OF THIS CONFIRMATION
OR THE