REASON BY THE CLOSE OF BUSINESS IN NEW YORK ON
FEBRUARY 12, 2007 (OR SUCH LATER DATE AS AGREED UPON BY THE PARTIES) (FEBRUARY
12, 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
UNDERWRITING AGREEMENT BY UBS SECURITIES LLC, 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).
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.
(N)
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 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
14
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 COUNTERPARTY SHALL CONTACT THE OTHER WITH
RESPECT TO ANY MATTER RELATING TO THE TRANSACTION WITHOUT THE DIRECT INVOLVEMENT
OF AGENT; (II) AGENT IS NOT A MEMBER OF THE SECURITIES INVESTOR PROTECTION
CORPORATION; (III) AGENT, DEALER AND COUNTERPARTY EACH HEREBY ACKNOWLEDGES THAT
ANY TRANSACTIONS BY DEALER OR AGENT IN THE SHARES WILL BE UNDERTAKEN BY DEALER
OR AGENT, AS THE CASE MAY, AS PRINCIPAL FOR ITS OWN ACCOUNT; (IV) ALL OF THE
ACTIONS TO BE TAKEN BY DEALER AND AGENT IN CONNECTION WITH THE TRANSACTION,
INCLUDING, BUT