ENTER INTO A PRIVATE PLACEMENT
AGREEMENT SUBSTANTIALLY SIMILAR TO PRIVATE PLACEMENT PURCHASE AGREEMENTS
CUSTOMARY FOR PRIVATE PLACEMENTS OF EQUITY SECURITIES, IN FORM AND SUBSTANCE
REASONABLY SATISFACTORY TO DEALER, INCLUDING CUSTOMARY REPRESENTATIONS,
COVENANTS, BLUE SKY AND OTHER GOVERNMENTAL FILINGS AND/OR REGISTRATIONS,
INDEMNITIES TO DEALER, DUE DILIGENCE RIGHTS (FOR DEALER OR ANY DESIGNATED BUYER
OF THE HEDGE SHARES FROM DEALER), OPINIONS AND CERTIFICATES AND SUCH OTHER
DOCUMENTATION AS IS CUSTOMARY FOR PRIVATE PLACEMENTS AGREEMENTS, ALL REASONABLY
ACCEPTABLE TO DEALER (IN WHICH CASE, THE CALCULATION AGENT SHALL MAKE ANY
ADJUSTMENTS TO THE TERMS OF THE TRANSACTION THAT ARE NECESSARY, IN ITS
REASONABLE JUDGMENT, TO COMPENSATE DEALER FOR ANY DISCOUNT FROM THE PUBLIC
MARKET PRICE OF THE SHARES INCURRED ON THE SALE OF HEDGE SHARES IN A PRIVATE
PLACEMENT); OR (III) PURCHASE THE HEDGE SHARES FROM DEALER AT THE VWAP PRICE ON
SUCH EXCHANGE BUSINESS DAYS, AND IN THE AMOUNTS, AS REQUESTED BY DEALER.
20.
OPINION OF COUNSEL.
COUNTERPARTY SHALL DELIVER AN OPINION OF COUNSEL,
DATED AS OF THE TRADE DATE, IN SUBSTANTIALLY THE FORM ATTACHED HERETO AS ANNEX
B.
21.
WAIVER OF TRIAL BY JURY.
EACH OF COUNTERPARTY AND DEALER HEREBY
IRREVOCABLY WAIVES (ON ITS OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, ON BEHALF OF ITS STOCKHOLDERS) ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THE TRANSACTION OR THE ACTIONS OF DEALER OR ITS
AFFILIATES OR COUNTERPARTY OR ITS AFFILIATES IN THE NEGOTIATION, PERFORMANCE OR
ENFORCEMENT HEREOF.
22.
GOVERNING LAW.
THE AGREEMENT AND THIS CONFIRMATION SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK.
THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE
EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED
STATES COURT FOR THE SOUTHERN DISTRICT OF NEW YORK IN CONNECTION WITH ALL
MATTERS RELATING HERETO AND WAIVE ANY OBJECTION TO THE LAYING OF VENUE IN, AND
ANY CLAIM OF INCONVENIENT FORUM WITH RESPECT TO, THESE COURTS.
23.
REGULATORY PROVISIONS.
COUNTERPARTY REPRESENTS AND WARRANTS THAT IT HAS
RECEIVED AND READ AND UNDERSTANDS THE NOTICE OF REGULATORY TREATMENT AND THE OTC
OPTION RISK DISCLOSURE STATEMENT.
AGENT WILL FURNISH COUNTERPARTY UPON WRITTEN
REQUEST A STATEMENT AS TO THE SOURCE AND AMOUNT OF ANY REMUNERATION RECEIVED OR
TO BE RECEIVED BY AGENT IN CONNECTION WITH THE TRANSACTION EVIDENCED HEREBY.
24.
.ROLE OF AGENT:
(A)
CREDIT SUISSE, NEW YORK BRANCH, IN ITS CAPACITY AS AGENT WILL BE
RESPONSIBLE FOR (I) EFFECTING THIS TRANSACTION, AND (II) MAINTAINING BOOKS AND
RECORDS RELATING TO THIS TRANSACTION IN ACCORDANCE WITH ITS STANDARD PRACTICES
AND PROCEDURES AND IN ACCORDANCE WITH APPLICABLE LAW.
(b)
Agent is acting in connection with this Transaction solely in its
capacity as Agent for Dealer pursuant to instructions from Dealer.
Agent shall
have no responsibility or personal liability to Dealer or Issuer arising from
any failure by Dealer or Issuer to pay or perform any obligations hereunder, or
to monitor or enforce compliance by Dealer
14
or Issuer with