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.
13
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 TO THE TRANSACTION.
(L)
EQUITY RIGHTS.
DEALER ACKNOWLEDGES AND AGREES THAT THIS
CONFIRMATION IS NOT INTENDED TO CONVEY TO IT RIGHTS WITH RESPECT TO THE
TRANSACTION THAT ARE SENIOR TO THE CLAIMS OF COMMON STOCKHOLDERS IN THE EVENT OF
COUNTERPARTY'S BANKRUPTCY.
FOR THE AVOIDANCE OF DOUBT, THE PARTIES AGREE THAT
THE PRECEDING SENTENCE SHALL NOT APPLY AT ANY TIME OTHER THAN DURING
COUNTERPARTY'S BANKRUPTCY TO ANY CLAIM ARISING AS A RESULT OF A BREACH BY
COUNTERPARTY OF ANY OF ITS OBLIGATIONS UNDER THIS CONFIRMATION OR THE AGREEMENT.
(M)
EARLY UNWIND.
IN THE EVENT THE SALE BY COUNTERPARTY OF THE
CONVERTIBLE NOTES IS NOT CONSUMMATED WITH UBS SECURITIES LLC PURSUANT TO THE
UNDERWRITING AGREEMENT FOR ANY