OF THE TRANSACTION
AND ALL MATERIALS OF ANY KIND (INCLUDING OPINIONS OR OTHER TAX ANALYSES) THAT
ARE PROVIDED TO ISSUER 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 ISSUER,
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 ISSUER 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 TO THE TRANSACTION.
(L)
ADDITIONAL TERMINATION EVENT.
IF WITHIN THE PERIOD COMMENCING ON
THE TRADE DATE AND ENDING ON THE SECOND ANNIVERSARY OF THE PREMIUM PAYMENT DATE,
BUYER REASONABLY DETERMINES THAT IT IS ADVISABLE TO TERMINATE A PORTION OF THE
TRANSACTION SO THAT BUYER'S RELATED HEDGING ACTIVITIES WILL COMPLY WITH
APPLICABLE
13
SECURITIES LAWS, RULES OR REGULATIONS, AN ADDITIONAL TERMINATION EVENT SHALL
OCCUR IN RESPECT OF WHICH (1) ISSUER SHALL BE THE SOLE AFFECTED PARTY AND (2)
THE TRANSACTION SHALL BE THE SOLE AFFECTED TRANSACTION.
(M)
EFFECTIVENESS.
IF, PRIOR TO THE EFFECTIVE DATE, BUYER REASONABLY
DETERMINES THAT IT IS ADVISABLE TO CANCEL THE TRANSACTION BECAUSE OF CONCERNS
THAT BUYER'S RELATED HEDGING ACTIVITIES COULD BE VIEWED AS NOT COMPLYING WITH
APPLICABLE SECURITIES LAWS, RULES OR REGULATIONS, THE TRANSACTION SHALL BE
CANCELLED AND SHALL NOT BECOME EFFECTIVE, AND NEITHER PARTY SHALL HAVE ANY
OBLIGATION TO THE OTHER PARTY IN RESPECT OF THE TRANSACTION.
(N)
WAIVER OF TRIAL BY JURY.
EACH OF ISSUER AND BUYER 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 BUYER OR ITS
AFFILIATES IN THE NEGOTIATION, PERFORMANCE OR ENFORCEMENT HEREOF.
(O)
GOVERNING LAW.
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.
(P)
ROLE OF AGENT.
EACH PARTY AGREES AND ACKNOWLEDGES THAT AGENT IS
ACTING AS AGENT FOR BOTH PARTIES BUT DOES NOT GUARANTEE THE PERFORMANCE OF
EITHER PARTY AND NEITHER DEALER NOR ISSUER SHALL CONTACT THE OTHER WITH RESPECT
TO ANY MATTER RELATING TO THE TRANSACTION WITHOUT THE DIRECT