Common use of Early Unwind Clause in Contracts

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) is not consummated with the Underwriters for any reason, or if Counterparty fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), in each case by 5:00 p.m. (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date, 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 under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall reimburse Dealer for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transaction). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Section, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Purchase Agreement (the “Purchase Agreement”) dated as of the Trade Date between Counterparty and X.X. Xxxxxx Securities Inc. and Xxxxxxx, Sachs & Co. as representatives of the several Initial Purchasers party thereto) is not consummated with the Underwriters Initial Purchasers for any reason, other than in cases involving a breach of the Purchase Agreement by Dealer or if its affiliate, or Counterparty fails to deliver to Dealer the opinions of counsel as required pursuant to Section 9(a), in each case by 5:00 p.m. (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date, date 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 under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall reimburse purchase from Dealer for any costs or expenses (including market losses) relating to on the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Early Unwind Date all Shares purchased by Dealer or one or more of its affiliates in connection with the Transaction). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on Transaction at the Early Unwind Datethen prevailing market price. Each of Dealer and Counterparty represent and acknowledge to the other that, subject to the proviso included in this SectionSection 9(t), upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Firm Securities” (as defined in the Underwriting Purchase Agreement (the “Purchase Agreement”) dated as of the Trade Date between Company and X.X. Xxxxxx Securities Inc. and Xxxxxxx, Sachs & Co. as representatives of the several Initial Purchasers party thereto) is not consummated with the Underwriters Initial Purchasers for any reason, other than in cases involving a breach of the Purchase Agreement by Dealer, or if Counterparty Company fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), in each case by 5:00 p.m. (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date, date 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 Company under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty Company shall reimburse purchase from Dealer for any costs or expenses (including market losses) relating to on the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Early Unwind Date all Shares purchased by Dealer or one or more of its affiliates in connection with the Transaction). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on Transaction at the Early Unwind Datethen prevailing market price. Each of Dealer and Counterparty Company represent and acknowledge to the other that, subject to the proviso included in this SectionSection 9(t), upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” USD 150,000,000 aggregate principal amount of Notes (as defined in the Underwriting Note Purchase Agreement) is not consummated with the Underwriters Purchasers for any reason, or if Counterparty fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), in each case by 5:00 p.m. (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date, date 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 under the Transaction shall be cancelled and terminated and (ii) Counterparty shall pay to Dealer an amount in cash equal to the aggregate amount (the “Unwind Amount”) of reasonable 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, unless Counterparty agrees to purchase any such Shares at the cost at which Dealer or its affiliates purchased such Shares) or, at the election of Counterparty, deliver to Dealer Shares with a value equal to such amount, as determined by the Calculation Agent, in which event the parties shall enter into customary and commercially reasonable documentation relating to the registered or exempt resale of such Shares; provided that in no event shall the number of such Shares exceed the lesser of 6,552,839 and the number of Shares then authorized for issuance under Counterparty’s certificate of incorporation that are unissued and unreserved at that time (the “Capped Number of Shares”). Following such termination, cancellation and payment by Counterparty to Dealer of the Unwind Amount (or delivery of Shares with a value equal thereto or delivery of the Capped Number of Shares, as the case may be) in accordance with clause (ii) of the immediately preceding sentence, 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall reimburse Dealer for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transaction). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer and Counterparty represent represents and acknowledge acknowledges to the other that, subject following payment by Counterparty to Dealer of the proviso included Unwind Amount (or delivery of Shares with a value equal thereto or delivery of the Capped Number of Shares, as the case may be) in this Sectionaccordance with clause (ii) of the second immediately preceding sentence, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) is not consummated with the Underwriters for any reason, or if Counterparty Company fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), in each case by 5:00 p.m. (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date, 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 Company under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty Company shall reimburse Dealer for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transaction). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty Company of such amount and Counterparty Company shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer and Counterparty Company represent and acknowledge to the other that, subject to the proviso included in this Section, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Firm Securities” (as defined in the Underwriting Purchase Agreement) is not consummated with the Underwriters Initial Purchasers for any reason, or if Counterparty fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), in each case by 5:00 1:00 p.m. (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date, 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 under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall reimburse purchase from Dealer for any costs or expenses (including market losses) relating to on the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Early Unwind Date all Shares purchased by Dealer or one or more of its affiliates in connection with the Transaction). The amount of Transaction at the price Dealer or any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty of affiliate paid for such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind DateShares. Each of Dealer and Counterparty represent represents and acknowledge acknowledges to the other that, subject to the proviso included in this SectionSection 9(t), upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten SecuritiesFirm Notes” (as defined in the Underwriting Purchase Agreement) is not consummated with the Underwriters initial purchasers thereof for any reason, or if Counterparty fails to deliver to Dealer opinions reason by the close of counsel as required pursuant to Section 9(a), business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateNovember 3, 2017 (or such later date as agreed upon by the parties parties) (the Premium Payment Date November 3, 2017 or such later date, date as agreed upon being the “Early Unwind Date”), the Transaction shall automatically terminate (the “Early Unwind”), ) on the Early Unwind Date and (ia) the Transaction and all of the respective rights and obligations of Dealer and Counterparty under the Transaction shall be cancelled and terminated and (iib) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that that, if such an Early Unwind is solely due to an event within Counterparty’s control, Counterparty shall reimburse purchase from Dealer for any costs or expenses (including market losses) relating to on the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Early Unwind Date all Shares and Underlying Shares purchased by Dealer or one or more of its affiliates affiliates, and assume, or reimburse the cost of, derivatives and other hedging activities entered into by Dealer or one or more of its affiliates, in each case, in connection with hedging of the Transaction)Transaction and the unwind of such hedging activities. The amount of any such reimbursement payable by Counterparty shall be determined by Dealer in Dealer’s (or its sole good faith discretion. Dealer shall notify Counterparty affiliates) actual cost of such amount Shares and Underlying Shares and unwind cost of such derivatives and other hedging activities as Dealer informs Counterparty and shall pay such amount be paid in immediately available funds on the Early Unwind Date. Each of Dealer and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Sectionthe second preceding sentence, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Option Securities” (as defined in the Underwriting Purchase Agreement (the “Purchase Agreement”) dated as of July 26, 2010 between Counterparty and J.X. Xxxxxx Securities Inc. and Gxxxxxx, Sachs & Co. as representatives of the several Initial Purchasers party thereto) is not consummated with the Underwriters Initial Purchasers for any reason, other than in cases involving a breach of the Purchase Agreement by Dealer or if its affiliate, or Counterparty fails to deliver to Dealer the opinions of counsel as required pursuant to Section 9(a), in each case by 5:00 p.m. (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date, date 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 under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall reimburse purchase from Dealer for any costs or expenses (including market losses) relating to on the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Early Unwind Date all Shares purchased by Dealer or one or more of its affiliates in connection with the Transaction). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on Transaction at the Early Unwind Datethen prevailing market price. Each of Dealer and Counterparty represent and acknowledge to the other that, subject to the proviso included in this SectionSection 9(t), upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten SecuritiesAdditional Notes” (as defined in the Underwriting Purchase Agreement) is not consummated with the Underwriters initial purchasers thereof for any reason, or if Counterparty fails to deliver to Dealer opinions reason by the close of counsel as required pursuant to Section 9(a), business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateNovember 3, 2017 (or such later date as agreed upon by the parties parties) (the Premium Payment Date November 3, 2017 or such later date, date as agreed upon being the “Early Unwind Date”), the Transaction shall automatically terminate (the “Early Unwind”), ) on the Early Unwind Date and (ia) the Transaction and all of the respective rights and obligations of Dealer and Counterparty under the Transaction shall be cancelled and terminated and (iib) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that that, if such an Early Unwind is solely due to an event within Counterparty’s control, Counterparty shall reimburse purchase from Dealer for any costs or expenses (including market losses) relating to on the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Early Unwind Date all Shares and Underlying Shares purchased by Dealer or one or more of its affiliates affiliates, and assume, or reimburse the cost of, derivatives and other hedging activities entered into by Dealer or one or more of its affiliates, in each case, in connection with hedging of the Transaction)Transaction and the unwind of such hedging activities. The amount of any such reimbursement payable by Counterparty shall be determined by Dealer in Dealer’s (or its sole good faith discretion. Dealer shall notify Counterparty affiliates) actual cost of such amount Shares and Underlying Shares and unwind cost of such derivatives and other hedging activities as Dealer informs Counterparty and shall pay such amount be paid in immediately available funds on the Early Unwind Date. Each of Dealer and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Sectionthe second preceding sentence, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Option Securities” (as defined in the Underwriting Purchase Agreement (the “Purchase Agreement”) dated as of July 26, 2010 between Company and J.X. Xxxxxx Securities Inc. and Gxxxxxx, Sachs & Co. as representatives of the several Initial Purchasers party thereto) is not consummated with the Underwriters Initial Purchasers for any reason, other than in cases involving a breach of the Purchase Agreement by Dealer, or if Counterparty Company fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), in each case by 5:00 p.m. (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date, date 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 Company under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty Company shall reimburse purchase from Dealer for any costs or expenses (including market losses) relating to on the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Early Unwind Date all Shares purchased by Dealer or one or more of its affiliates in connection with the Transaction). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on Transaction at the Early Unwind Datethen prevailing market price. Each of Dealer and Counterparty Company represent and acknowledge to the other that, subject to the proviso included in this SectionSection 9(t), upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale by Counterparty of the “Underwritten Securities” (as defined in the Underwriting Agreement) Units is not consummated with the Underwriters initial purchasers pursuant to the Purchase Agreement for any reason, or if Counterparty fails to deliver to Dealer opinions reason by the close of counsel as required pursuant to Section 9(a), business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateJune 13, 2006 (or such later date as agreed upon by the parties parties, which in no event shall be later than the date specified for this purpose in the Purchase Agreement) (the Premium Payment Date June 13, 2006 or such later date, 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 Bank and Counterparty under the Transaction thereunder shall be cancelled and terminated and (ii) if the failure to consummate the sale of the Units results from a breach by Counterparty of any representation of or any undertaking by Counterparty contained in the Purchase Agreement, Counterparty shall pay to Bank an amount in cash equal to the aggregate amount of costs and expenses relating to the unwinding of Bank’s reasonable hedging activities in respect of the Transaction (including market losses incurred in reselling any Shares purchased by Bank or its affiliates in connection with such reasonable 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 the other either party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall reimburse Dealer for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transaction). The amount of any such reimbursement shall be determined by Dealer Bank in its sole reasonable good faith discretion. Dealer Bank shall notify Counterparty the Company of such amount amount, including, upon Counterparty’s request, an explanation of the basis of determination of such amount, and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer Bank and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Section, that upon an Early UnwindUnwind and following the payment referred to above, all obligations with respect to the Transaction shall be deemed fully and finally discharged. For the avoidance of doubt, this Section 9(i) shall become effective as of the Trade Date and shall remain in effect whether or not the Effective Date of the Transaction occurs.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Purchase Agreement) is not consummated with the Underwriters Initial Purchaser for any reason, or if Counterparty fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a‎9(a), in each case by 5:00 p.m. (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date, 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 under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall reimburse purchase from Dealer for any costs or expenses (including market losses) relating to on the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Early Unwind Date all Shares purchased by Dealer or one or more of its affiliates in connection with the Transaction). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on Transaction at the Early Unwind Datethen prevailing market price. Each of Dealer and Counterparty represent represents and acknowledge acknowledges to the other that, subject to the proviso included in this SectionSection 9(w), upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” Additional Securities (as defined in the Underwriting Purchase Agreement (the “Purchase Agreement”) dated as of November 9, 2005 between Maverick and Mxxxxx Sxxxxxx & Co. Incorporated) is not consummated with the Underwriters initial purchasers for any reason, or if Counterparty fails to deliver to Dealer opinions reason by the close of counsel as required pursuant to Section 9(a), business in each case by 5:00 p.m. (New York City time) on the Premium Payment Date, Option Closing Date (as defined in the Purchase Agreement) or such later date as agreed upon by the parties (the Premium Payment Option Closing Date or such later date, date as agreed upon being the “Option Early Unwind Date”), the Transaction this Amendment shall automatically terminate on the Option Early Unwind Date (the “Option Early Unwind”), on the Early Unwind Date and (i) the Transaction amendments to the Confirmation set forth in Section 1 hereof and all of the respective rights and obligations of Dealer MSIL and Counterparty under the Transaction Maverick in connection therewith shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction such amendments either prior to or after the Option Early Unwind Date; provided that Counterparty if the failure to consummate the sale of the Additional Securities results from a failure of any condition described in the final paragraph of Section 5 of the Purchase Agreement, Maverick shall reimburse Dealer MSIL for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction this Amendment (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transactionposition). The amount of any such reimbursement shall be determined by Dealer MSIL in its sole good faith discretion. Dealer MSIL shall notify Counterparty Maverick of such amount amount, including reasonable detail regarding its determination of such amount, and Counterparty Maverick shall pay such amount in immediately available funds on the Option Early Unwind Date. Each of Dealer MSIL and Counterparty Maverick represent and acknowledge to the other that, subject to the proviso included in this Section, upon an Option Early Unwind, all obligations with respect to the Transaction this Amendment shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters initial purchasers thereof for any reason, or if Counterparty fails to deliver to Dealer opinions reason by the close of counsel as required pursuant to Section 9(a), business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateNovember 16, 2009 (or such later date as agreed upon by the parties parties) (the Premium Payment Date November 16, 2009 or such later date, date as agreed upon being the “Early Unwind Date”), the Transaction shall automatically terminate (the “Early Unwind”), ) on the Early Unwind Date and (ia) the Transaction and all of the respective rights and obligations of Dealer Société Générale and Counterparty under the Transaction shall be cancelled and terminated and (iib) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall reimburse Dealer for any costs or expenses (including market losses) relating to purchase from Société Générale on the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer Early Unwind Date all Shares purchased by Société Générale or one or more of its affiliates affiliates, and assume, or reimburse the cost of, derivatives and other hedging activities entered into by Société Générale or one or more of its affiliates, in each case, in connection with hedging of the Transaction)Transaction and the unwind of such hedging activities. The amount of any such reimbursement payable by Counterparty in cash or, as described in the following sentence, in Shares, shall be determined by Dealer in Société Générale’s (or its sole good faith discretion. Dealer shall notify Counterparty affiliates) actual cost of such amount Shares and unwind cost of such derivatives and other hedging activities as Société Générale informs Counterparty and shall pay such amount be paid in immediately available funds on the Early Unwind Date. Each Counterparty may satisfy its reimbursement obligation in cash or Shares, with the number of Dealer registered or unregistered Shares to be delivered to be determined by the Calculation Agent as the number of whole Shares that could be sold by Counterparty over a commercially reasonable period of time with the cash equivalent of such payment obligation; and provided that, to the extent that such Shares cannot be sold in the public market without registration under the Securities Act, such Shares shall be subject to the provisions under “Disposition of Hedge Shares” above, to be applied to such Shares. Société Générale and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Sectionthe preceding sentence, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Option Securities” (as defined in the Underwriting Agreement) is not consummated with the Underwriters for any reason, or if Counterparty fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), in each case by 5:00 p.m. (the close of business in New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date, date 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 under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall reimburse Dealer for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transaction). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Section, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Option Securities” (as defined in the Underwriting Agreement) is not consummated with the Underwriters for any reason, reason or if Counterparty the Company fails to deliver to Dealer Bank opinions of counsel as required pursuant to Section 9(a), ) by the close of business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateMay 5, 2009 (or such later date as agreed upon by the parties (the Premium Payment Date parties, May 5, 2009 or such later date, date 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 Bank and Counterparty the Company under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty that, other than to the extent the Early Unwind Date occurred as a result of the breach of the Underwriting Agreement by the Underwriters, the Company shall reimburse Dealer Bank, in cash or Shares, for any costs or expenses (including market losses) relating to the unwinding of its or its affiliate’s hedging activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transactionposition). The amount of any such reimbursement shall be determined by Dealer Bank in its sole good faith discretion. Dealer Bank shall notify Counterparty the Company of such amount and Counterparty the Company shall pay such amount in immediately available funds or deliver Shares on the Early Unwind Date. Each of Dealer Bank and Counterparty the Company represent and acknowledge to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters for any reason, reason or if Counterparty the Company fails to deliver to Dealer Bank opinions of counsel as required pursuant to Section 9(a), ) by the close of business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateMay 5, 2009 (or such later date as agreed upon by the parties (the Premium Payment Date parties, May 5, 2009 or such later date, date 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 Bank and Counterparty the Company under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty that, other than to the extent the Early Unwind Date occurred as a result of the breach of the Underwriting Agreement by the Underwriters, the Company shall reimburse Dealer Bank, in cash or Shares, for any costs or expenses (including market losses) relating to the unwinding of its or its affiliate’s hedging activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transactionposition). The amount of any such reimbursement shall be determined by Dealer Bank in its sole good faith discretion. Dealer Bank shall notify Counterparty the Company of such amount and Counterparty the Company shall pay such amount in immediately available funds or deliver Shares on the Early Unwind Date. Each of Dealer Bank and Counterparty the Company represent and acknowledge to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters for any reason, or if Counterparty fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), in each case by 5:00 p.m. (the close of business in New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date, date 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 under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall reimburse Dealer for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transaction). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Section, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters Initial Purchasers for any reason, or if Counterparty fails to deliver to Dealer opinions reason by the close of counsel as required pursuant to Section 9(a), business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateMarch 29, 2010 (or such later date as agreed upon by the parties parties) (the Premium Payment Date March 29, 2010 or such later date, date as agreed upon being the “Early Unwind Date”), the this Transaction shall automatically terminate (the “Early Unwind”), on the Early Unwind Date and and, if Counterparty has then received the Premium from Dealer, Counterparty shall refund such Premium to Dealer, whereupon (i) the Transaction and all of the respective rights and obligations of Dealer and Counterparty Company under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty that, except to the extent the Early Unwind Date occurred as a result of a breach of the Purchase Agreement by the Initial Purchasers, if the sale of the Convertible Notes is not consummated with the Initial Purchasers by the close of business in New York on the Early Unwind Date as a result of a failure by Company to satisfy any condition to closing contained in Section 6 of the Purchase Agreement, Company shall reimburse Dealer for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transaction). The amount of any such reimbursement shall be determined by Dealer in its sole good faith and commercially reasonable discretion. Dealer shall notify Counterparty Company of such amount and Counterparty and, subject to paragraph (m) below, Company shall pay such amount in immediately available funds on the Currency Business Day immediately following the Early Unwind Date. Each of Dealer and Counterparty Company represent and acknowledge to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) is not consummated with the Underwriters for any reason, or if Counterparty Company fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), in each case by 5:00 p.m. (the close of business in New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date, 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 Company under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty Company shall reimburse Dealer for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transaction). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty Company of such amount and Counterparty Company shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer and Counterparty Company represent and acknowledge to the other that, subject to the proviso included in this Section, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters for any reason, reason or if Counterparty fails to deliver to Dealer Bank opinions of counsel to Counterparty as required pursuant to Section 9(a), ) by the close of business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateMay 5, 2009 or such later date as agreed upon by the parties (the Premium Payment Date May 5, 2009 or such later date, date 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 Bank and Counterparty under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that that, other than to the extent the Early Unwind Date occurred as a result of the breach of the Underwriting Agreement by the Underwriters, Counterparty shall reimburse Dealer Bank, in cash or Shares, for any costs or expenses (including market losses) relating to the unwinding of its or its affiliate’s hedging activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transactionposition). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer Bank shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds or deliver Shares on the Early Unwind Date. Each of Dealer Bank and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event (x) the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters Joint Bookrunners for any reasonreason by 12:00 p.m. London time on March 19, or if Counterparty fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), in each case by 5:00 p.m. 2014 (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties parties) or (y) the Premium Payment Date or Joint Bookrunners have terminated the Purchase Agreement pursuant to Section 10 thereof (March 19, 2014, such later agreed date, or the date Dealer becomes aware that the Joint Bookrunners have terminated the Purchase Agreement, as applicable, 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 under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that that, unless the Early Unwind Date occurred as a result of a breach of the Purchase Agreement by Dealer, Counterparty shall purchase from Dealer on the Early Unwind Date all Shares purchased by Dealer or one of more of its affiliates for the purpose of hedging the Transaction and reimburse Dealer for any costs or expenses (including including, without duplication, market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position position) less any gain for the Dealer for the unwind of such hedging activity. Any such unwind must be performed by the Dealer or one or more of in a commercially reasonable manner, it being understood that Dealer shall not increase its affiliates in connection with hedge positions after the Transaction)Early Unwind Date. The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretiondiscretion and, upon request by Counterparty, documented to Counterparty in reasonable detail. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes for any Transaction hereunder is not consummated with the Underwriters for any reason, or if Counterparty fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(athe underwriting agreement (the “Underwriting Agreement”) dated June 9, 2009 between Counterparty and Citigroup Global Markets Inc. and X.X. Xxxxxx Securities Inc. (the “Representatives”), as representatives of the underwriters thereunder (the “Underwriters”) by the close of business in each case by 5:00 p.m. (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date, the “Early Unwind Date”)Date set forth in the Confirmation for such Transaction, the such Transaction shall automatically terminate (the “Early Unwind”), on the such Early Unwind Date and (i) the such Transaction and all of the respective rights and obligations of Dealer and Counterparty under the such Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the such Transaction either prior to or after the such Early Unwind Date; provided that that, if such failure is due to a breach or default on the part of Counterparty under the Underwriting Agreement, Counterparty shall assume, or reimburse Dealer for any costs the cost of, derivatives or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of other transactions entered into by Dealer or one or more of its affiliates Affiliates in connection with the hedging such Transaction). The amount of any such reimbursement paid by Counterparty shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty Dealer’s actual cost of such amount derivatives or other transactions as Dealer informs Counterparty and Counterparty shall pay such amount be paid in immediately available funds on such Early Unwind Date or, at the election of Counterparty, in lieu of such payment Counterparty may deliver to Dealer, on such Early Unwind Date. Each of Dealer , Shares with a value equal to such amount, as determined by the Calculation Agent, in which event the parties shall enter into customary and Counterparty represent and acknowledge commercially reasonable documentation relating to the other that, subject registered or exempt resale of such Shares; provided that in no event shall Counterparty be obligated to the proviso included deliver in this Section, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally dischargedexcess of 1,541,787 Shares.

Early Unwind. Notwithstanding anything in this Confirmation to the contrary, and subject to the immediately succeeding sentence, the respective obligations of the parties under the Transaction shall become final and binding, and the Transaction shall become effective, on the Premium Payment Date. In the event that (i) In the event the sale of the “Underwritten Firm Securities” (as defined in the Underwriting Agreement) is not consummated with the Underwriters for any reason, or if Counterparty fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), in each case by 5:00 p.m. (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date, date the “Early Unwind Date”)) or (ii) the $1,500,000,000 Credit Agreement dated as of January 19, 2007 among Counterparty, as Borrower, the several lenders from time to time party thereto, Credit Suisse Securities (USA) LLC as Syndication Agent and JPMorgan Chase Bank, N.A., as Administrative Agent is not repaid in full and terminated on prior to the Premium Payment Date, the Transaction shall automatically terminate (the “Early Unwind”), on the Early Unwind Date and (ix) the Transaction and all of the respective rights and obligations of Dealer and Counterparty under the Transaction shall be cancelled and terminated and (iiy) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall reimburse purchase from Dealer for any costs or expenses (including market losses) relating to on the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Early Unwind Date all Shares purchased by Dealer or one or more of its affiliates in connection with the Transaction). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on Transaction at the Early Unwind Datethen prevailing market price. Each of Dealer and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Section, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Option Securities” (as defined in the Underwriting Agreement) is not consummated with the Underwriters for any reason, reason or if Counterparty fails to deliver to Dealer Bank opinions of counsel to Counterparty as required pursuant to Section 9(a), ) by the close of business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateMay 5, 2009 or such later date as agreed upon by the parties (the Premium Payment Date May 5, 2009 or such later date, date 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 Bank and Counterparty under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that that, other than to the extent the Early Unwind Date occurred as a result of the breach of the Underwriting Agreement by the Underwriters, Counterparty shall reimburse Dealer Bank, in cash or Shares, for any costs or expenses (including market losses) relating to the unwinding of its or its affiliate’s hedging activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transactionposition). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer Bank shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds or deliver Shares on the Early Unwind Date. Each of Dealer Bank and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters underwriters for any reason, or if Counterparty fails to deliver to Dealer opinions reason by the close of counsel as required pursuant to Section 9(a), business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateDecember 19, 2006 or such later date as agreed upon by the parties (the Premium Payment Date December 19, 2006 or such later date, date as agreed upon 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 Bank and Counterparty under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that that, other than to the extent the Early Unwind Date occurred as a result of a breach of the Purchase Agreement by Bank or an affiliate thereof, Counterparty shall reimburse Dealer Bank for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transactionposition). The amount of any such reimbursement shall be determined by Dealer Bank in its sole good faith and commercially reasonable discretion. Dealer Bank shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer Bank and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Section, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters underwriters for any reason, or if Counterparty fails to deliver to Dealer opinions reason by the close of counsel as required pursuant to Section 9(a), business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateDecember 19, 2006 or such later date as agreed upon by the parties (the Premium Payment Date December 19, 2006 or such later date, date as agreed upon 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 under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that that, other than to the extent the Early Unwind Date occurred as a result of a breach of the Purchase Agreement by Dealer or an affiliate thereof, Counterparty shall reimburse Dealer for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transactionposition). The amount of any such reimbursement shall be determined by Dealer in its sole good faith and commercially reasonable discretion. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Section, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) 2.625% Convertible Senior Notes due August 15, 2011 is not consummated with the Underwriters initial purchasers for any reason, or if Counterparty fails to deliver to Dealer opinions reason by the close of counsel as required pursuant to Section 9(a), business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateAugust 23, 2006 (or such later date as agreed upon by the parties parties) (the Premium Payment Date August 23, 2006 or such later date, if any, as agreed upon being the “Early Unwind Date”), the this 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 JPMorgan and Counterparty Company under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty Company shall purchase from JPMorgan on the Early Unwind Date all Shares purchased by JPMorgan or one or more of its affiliates and shall, notwithstanding anything to the contrary in the Equity Definitions, reimburse Dealer JPMorgan for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transactionposition). The amount of any such reimbursement shall be determined by Dealer JPMorgan in its sole good faith discretion. Dealer JPMorgan shall notify Counterparty Company of such amount and Counterparty Company shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer JPMorgan and Counterparty Company represent and acknowledge to the other that, subject to the proviso included in this Section, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Option Securities” (as defined in the Underwriting Agreement) is not consummated with the Underwriters for any reason, or if Counterparty Company fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), in each case by 5:00 p.m. (the close of business in New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date, 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 Company under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty Company shall reimburse Dealer for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transaction). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty Company of such amount and Counterparty Company shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer and Counterparty Company represent and acknowledge to the other that, subject to the proviso included in this Section, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event (x) the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters Initial Purchasers for any reasonreason by 12:00 p.m. London time on November 13, or if Counterparty fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), in each case by 5:00 p.m. 2018 (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties parties) or (y) the Premium Payment Date or Initial Purchasers have terminated the Purchase Agreement pursuant to Section 10 thereof (November 13, 2018, such later agreed date, or the date Dealer becomes aware that the Initial Purchasers have terminated the Purchase Agreement, as applicable, 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 under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that that, unless the Early Unwind Date occurred as a result of a breach of the Purchase Agreement by Dealer, Counterparty shall purchase from Dealer on the Early Unwind Date all Shares purchased by Dealer or one of more of its affiliates for the purpose of hedging the Transaction and reimburse Dealer for any costs or expenses (including including, without duplication, market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position position) less any gain for the Dealer for the unwind of such hedging activity. Any such unwind must be performed by the Dealer or one or more of in a commercially reasonable manner, it being understood that Dealer shall not increase its affiliates in connection with hedge positions after the Transaction)Early Unwind Date. The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretiondiscretion and, upon request by Counterparty, documented to Counterparty in reasonable detail. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Firm Securities is not consummated with the Underwriters Initial Purchasers for any reason, reason or if Counterparty fails to deliver to Dealer opinions of counsel to Counterparty as required pursuant to Section 9(a), ) by the close of business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateNovember 20, 2009 (or such later date as agreed upon by the parties parties) (the Premium Payment Date November 20, 2009 or such later date, date as agreed upon being the “Early Unwind Date”), the this 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 Dealer, Counterparty and Counterparty Parent under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that if the sale is not consummated for any reason other than a default by Dealer, Counterparty shall purchase from Dealer on the Early Unwind Date all Shares purchased by Dealer or one or more of its affiliates and reimburse Dealer for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transactionposition). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer and Counterparty represent represents and acknowledge acknowledges to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters initial purchasers for any reason, reason or if Counterparty fails to deliver to Dealer Deutsche opinions of counsel to Counterparty as required pursuant to Section 9(a), ) by the close of business in each case by 5:00 p.m. (New York City timeon March 16, 2007(1) on the Premium Payment Date, (or such later date as agreed upon by the parties parties) (the Premium Payment Date March 16, 2007 or such later date, date as agreed upon being the “Early Unwind Date”), the this 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 Deutsche and Counterparty under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall purchase from Deutsche on the Early Unwind Date all Shares purchased by Deutsche or one or more of its affiliates and reimburse Dealer Deutsche for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transactionposition). The amount of any such reimbursement shall be determined by Dealer Deutsche in its sole good faith discretion. Dealer Deutsche shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer Deutsche and Counterparty represent represents and acknowledge acknowledges to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters initial purchasers for any reason, or if Counterparty fails to deliver to Dealer opinions reason (other than as a result of counsel as required pursuant to Section 9(a), a breach by the initial purchasers) by the close of business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateMarch 19, 2004 (or such later date as agreed upon by the parties parties) (the Premium Payment Date March 19, 2004 or such later date, date as agreed upon being the “Early Unwind Date”), the this 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 JPMorgan and Counterparty under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall reimburse Dealer for any costs purchase from JPMorgan on the Early Unwind Date all Shares purchased by JPMorgan or expenses (including market losses) relating to the unwinding one or more of its hedging activities in connection with affiliates and assume, or reimburse the Transaction (including any loss or cost incurred as a result of terminatingof, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer derivatives entered into by JPMorgan or one or more of its affiliates in connection with the hedging this Transaction). The amount of any such reimbursement purchase price paid by the Counterparty shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty JPMorgan’s actual cost of such amount Shares and derivatives as JPMorgan informs Counterparty and shall pay such amount be paid in immediately available funds on the Early Unwind Date. Each of Dealer JPMorgan and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Sectionthe preceding sentence, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged. A subsidiary of J.X. Xxxxxx Cxxxx & Co. Incorporated with Limited Liability as a New York State chartered commercial bank. Registered in England branch number BR000746. Authorised by the FSA. Registered branch address 100 Xxxxxx Xxxx, Xxxxxx, XX0X 0XX. Head oxxxxx 000 Xxxx Xxxxxx, Xxx Xxxx, XXX.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Cash Convertible Notes is not consummated with the Underwriters initial purchasers for any reason, or if Counterparty fails to deliver to Dealer opinions reason by the close of counsel as required pursuant to Section 9(a), business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateMay 22, 2009 (or such later date as agreed upon by the parties parties) (the Premium Payment Date May 22, 2009 or such later date, date as agreed upon 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 Bank and Counterparty under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall reimburse Dealer for any pay to Bank, other than in cases involving a breach of the Purchase Agreement by the initial purchaser thereunder, an amount of cash equal to the aggregate amount of reasonable costs or and expenses (including market losses) relating to the unwinding of its Bank’s hedging activities in connection with respect of the Transaction in a commercially reasonable manner (including market losses incurred in reselling in a commercially reasonable manner any loss Shares purchased by Bank or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transaction). The amount of such hedging activities, unless Counterparty agrees to purchase any such reimbursement shall be determined by Dealer Shares at the cost at which Bank purchased such Shares) but only to the extent that such market costs and expenses exceed any realized market gains in its sole good faith discretionsuch Shares. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer Bank and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Purchase Agreement) is not consummated with the Underwriters Initial Purchasers for any reason, or if Counterparty fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), in each case by 5:00 p.m. (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date, 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 under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall reimburse purchase from Dealer for any costs or expenses (including market losses) relating to on the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Early Unwind Date all Shares purchased by Dealer or one or more of its affiliates in connection with the Transaction). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on Transaction at the Early Unwind Datethen prevailing market price. Each of Dealer and Counterparty represent represents and acknowledge acknowledges to the other that, subject to the proviso included in this SectionSection 9(t), upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.. Please confirm that the foregoing correctly sets forth the terms of our agreement by executing this Confirmation and returning it to EDG Confirmation Group, X.X. Xxxxxx Securities LLC, 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000-0000, or by fax to (000) 000 0000. Very truly yours,

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) additional Convertible Notes is not consummated with the Underwriters initial purchasers for any reason, or if Counterparty fails to deliver to Dealer opinions reason by the close of counsel as required pursuant to Section 9(a), business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateAugust 13, 2012 (or such later date as agreed upon by the parties parties) (the Premium Payment Date August 13, 2012 or such later date, date as agreed upon being the “Early Unwind Date”), the this 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 under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that that, Counterparty shall reimburse Dealer for any reasonable costs or expenses (including market losses) relating to the unwinding of its hedging activities its, or the Hedging Party’s, Hedging Activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position position) unless the sale of Dealer or one or more of its affiliates in connection Convertible Bonds is not consummated with the Transactioninitial purchasers as a result of breach of the Purchase Agreement by the initial purchasers (in which case no such reimbursement will be payable). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretionand in a commercially reasonable manner. Dealer shall notify Counterparty of such amount and Counterparty shall deliver Share Termination Delivery Property or, at the election of Counterparty, pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged. Notwithstanding anything herein or in the Agreement to the contrary, in no event shall Counterparty be required to deliver an aggregate number of Shares in connection with the Early Unwind in excess of 297,149 Shares, subject to adjustment from time to time as a result of actions of Counterparty or events within Counterparty’s control and in accordance with the provisions of this Confirmation and the Equity Definitions.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters Initial Purchasers for any reason, reason or if Counterparty fails to deliver to Dealer Bank opinions of counsel to Counterparty as required pursuant to Section 9(a), ) by the close of business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateApril 24, 2009 (or such later date as agreed upon by the parties (the Premium Payment Date parties, April 24, 2009 or such later date, date as agreed upon 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 Bank and Counterparty under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that that, other than to the extent the Early Unwind Date occurred as a result of the breach of the Purchase Agreement by the Initial Purchasers, Counterparty shall reimburse Dealer Bank, in cash or Shares, for any costs or expenses (including market losses) relating to the unwinding of its or its affiliate’s hedging activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transactionposition). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer Bank shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds or deliver Shares on the Early Unwind Date. Each of Dealer Bank and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters Initial Purchasers for any reason, reason or if Counterparty the Company fails to deliver to Dealer Bank opinions of counsel as required pursuant to Section 9(a), ) by the close of business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateApril 24, 2009 (or such later date as agreed upon by the parties (the Premium Payment Date parties, April 24, 2009 or such later date, date 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 Bank and Counterparty the Company under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty that, other than to the extent the Early Unwind Date occurred as a result of the breach of the Purchase Agreement by the Initial Purchasers, the Company shall reimburse Dealer Bank, in cash or Shares, for any costs or expenses (including market losses) relating to the unwinding of its or its affiliate’s hedging activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transactionposition). The amount of any such reimbursement shall be determined by Dealer Bank in its sole good faith discretion. Dealer Bank shall notify Counterparty the Company of such amount and Counterparty the Company shall pay such amount in immediately available funds or deliver Shares on the Early Unwind Date. Each of Dealer Bank and Counterparty the Company represent and acknowledge to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (iA) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) is not consummated with the Underwriters for any reason, or if Counterparty fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), or (B) to the extent the transactions contemplated in the Exchange Agreements are not consummated for any reason, in each case by 5:00 p.m. (New York City time) on the third Business Day immediately following the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date, the “Early Unwind Date”), the Transaction Transaction, or, in the case of clause (B) above, a corresponding portion of the Transaction, shall automatically terminate (the “Early Unwind”), ) on the Early Unwind Date and (i) the Transaction Transaction, or portion thereof in the case of clause (B) above, and all of the respective rights and obligations of Dealer and Counterparty under the Transaction Transaction, or portion thereof, shall be cancelled and terminated, and Counterparty shall pay to Dealer an amount in cash equal to the aggregate amount of commercially reasonable costs and expenses relating to the unwinding of Dealer’s commercially reasonable hedging activities in respect of the Transaction, or portion thereof, so terminated (including commercially reasonable market losses incurred in reselling any Shares purchased by Dealer or its affiliates in connection with such commercially reasonable hedging activities, unless Counterparty agrees to purchase any such Shares at the cost at which Dealer purchased such Shares) or, at the election of Counterparty, deliver to Dealer Shares with a value equal to such amount, as determined by the Calculation Agent, in which event the parties shall enter into customary and commercially reasonable documentation relating to the registered or exempt resale of such Shares (provided that the aggregate amount of Shares deliverable pursuant to this Section 9(v) shall not exceed [•]11), and (ii) 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 the other party arising out of and to be performed in connection with the Transaction Transaction, or portion thereof, so terminated either prior to or after the Early Unwind Date; provided that Counterparty shall reimburse Dealer for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transaction). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer and Counterparty represent represents and acknowledge acknowledges to the other that, subject to the proviso included in this Section, that upon an Early Unwind, all obligations with respect to the Transaction Transaction, or portion thereof, so terminated shall be deemed fully and finally discharged. For the avoidance of doubt, it is intended that payments pursuant to this Section 9(v) shall be made solely in respect of the terminated portion of the Transaction. 11 To be equal to the Number of Shares.

Early Unwind. (i) In the event the sale of the [“Underwritten Securities” Firm Securities”]5[“Option Securities”]6 (as defined in the Underwriting Purchase Agreement) is not consummated with the Underwriters Initial Purchaser for any reason, or if Counterparty fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), in each case by 5:00 p.m. (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date, 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 under the Transaction hereunder shall be cancelled and terminated and Counterparty shall pay to Dealer, other than in cases involving a breach of the Purchase Agreement by Dealer as Initial Purchaser (as defined in the Purchase Agreement), 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, unless Counterparty agrees to purchase any such Shares at the cost at which Dealer purchased such Shares) or, at the election of Counterparty, deliver to Dealer Shares with a value equal to such amount, as determined by the Calculation Agent, in which event Counterparty shall comply with its obligations under clause (i) or (ii) (at the election of Counterparty) under Section 9(l) relating to the registered or exempt resale of such Shares, with such Shares being deemed to be Hedge Shares for this purpose. Following such termination, cancellation and payment or delivery (and, if applicable, performance by Counterparty of its obligations under Section 9(l)), each party shall be released and discharged by the other party from from, and agrees not to make any claim against the other party with respect to to, any obligations or liabilities of the other either party arising out of of, and to be performed in connection with with, the Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall reimburse Dealer for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transaction). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Section, that upon an Early UnwindUnwind and following the payment or delivery referred to above (and, if applicable, performance by Counterparty of its obligations under Section 9(l)), all obligations with respect to the Transaction shall be deemed fully and finally discharged. 5 Insert for Base Convertible Bond Hedge Confirmation. 6 Insert for Additional Convertible Bond Hedge Confirmation.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters Initial Purchasers for any reason, reason or if Counterparty the Company fails to deliver to Dealer Bank opinions of counsel as required pursuant to Section 9(a), ) by the close of business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateMay 16, 2008 (or such later date as agreed upon by the parties (the Premium Payment Date parties) May 16, 2008 or such later date, date as agreed upon being the “Early Unwind Date”), the this 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 Bank and Counterparty Company under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty that, other than to the extent the Early Unwind Date occurred as a result of the breach of the Purchase Agreement by the Initial Purchasers, Company shall reimburse Dealer Bank, in cash or Shares, for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transactionposition). The amount of any such reimbursement shall be determined by Dealer Bank in its sole good faith discretion. Dealer Bank shall notify Counterparty Company of such amount and Counterparty the Company shall pay such amount in immediately available funds or deliver Shares on the Early Unwind Date. Each of Dealer Bank and Counterparty Company represent and acknowledge to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.. (k)

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters Initial Purchasers for any reason, reason or if Counterparty the Company fails to deliver to Dealer Bank opinions of counsel as required pursuant to Section 9(a), ) by the close of business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateMarch 26, 2007 (or such later date as agreed upon by the parties (the Premium Payment Date parties) March 26, 2007 or such later date, date as agreed upon being the “Early Unwind Date”), the this 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 Bank and Counterparty Company under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty that, other than to the extent the Early Unwind Date occurred as a result of the breach of the Purchase Agreement by the Initial Purchasers, Company shall reimburse Dealer Bank for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transactionposition). The amount of any such reimbursement shall be determined by Dealer Bank in its sole good faith discretion. Dealer Bank shall notify Counterparty Company of such amount and Counterparty the Company shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer Bank and Counterparty Company represent and acknowledge to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. Notwithstanding anything in this Confirmation to the contrary, and subject to the immediately succeeding sentence, the respective obligations of the parties under the Transaction shall become final and binding, and the Transaction shall become effective, on the Premium Payment Date. In the event that (i) In the event the sale of the “Underwritten Firm Securities” (as defined in the Underwriting Agreement) is not consummated with the Underwriters for any reason, or if Counterparty Company fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), in each case by 5:00 p.m. (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date, date the “Early Unwind Date”)) or (ii) the $1,500,000,000 Credit Agreement dated as of January 19, 2007 among Company, as Borrower, the several lenders from time to time party thereto, Credit Suisse Securities (USA) LLC as Syndication Agent and JPMorgan Chase Bank, N.A., as Administrative Agent is not repaid in full and terminated on prior to the Premium Payment Date, the Transaction shall automatically terminate (the “Early Unwind”), on the Early Unwind Date and (ix) the Transaction and all of the respective rights and obligations of Dealer and Counterparty Company under the Transaction shall be cancelled and terminated and (iiy) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty Company shall reimburse purchase from Dealer for any costs or expenses (including market losses) relating to on the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Early Unwind Date all Shares purchased by Dealer or one or more of its affiliates in connection with the Transaction). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on Transaction at the Early Unwind Datethen prevailing market price. Each of Dealer and Counterparty Company represent and acknowledge to the other that, subject to the proviso included in this Section, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters Initial Purchasers for any reason, or if Counterparty fails to deliver to Dealer opinions reason by the close of counsel as required pursuant to Section 9(a), business in each case by 5:00 p.m. (New York City time) on the Premium Payment Date, Date (or such later date as agreed upon by the parties parties) (the Premium Payment Date or such later date, date as agreed upon being the “Early Unwind Date”), the this Transaction shall automatically terminate (the “Early Unwind”), on the Early Unwind Date and and, if Counterparty has then received the Premium from Dealer, Counterparty shall refund such Premium to Dealer, whereupon (i) the Transaction and all of the respective rights and obligations of Dealer and Counterparty Company under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty that, except to the extent the Early Unwind Date occurred as a result of a breach of the Purchase Agreement by the Initial Purchasers, if the sale of the Convertible Notes is not consummated with the Initial Purchasers by the close of business in New York on the Early Unwind Date as a result of a failure by Company to satisfy any condition to closing contained in Section 6 of the Purchase Agreement, Company shall reimburse Dealer for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transaction). The amount of any such reimbursement shall be determined by Dealer in its sole good faith and commercially reasonable discretion. Dealer shall notify Counterparty Company of such amount and Counterparty and, subject to paragraph (m) below, Company shall pay such amount in immediately available funds on the Currency Business Day immediately following the Early Unwind Date. Each of Dealer and Counterparty Company represent and acknowledge to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale offering of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Debentures is not consummated with the Underwriters for any reason, or if Counterparty fails to deliver to Dealer opinions reason by the close of counsel as required pursuant to Section 9(a), business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateAugust 20, 2007 (or such later date as agreed upon by the parties parties) (the Premium Payment Date August 20, 2007 or such later date, date as agreed upon being the “Early Unwind Date”)) or any other condition contained in Section 2.03 is not satisfied on such date, the this Transaction shall automatically terminate (the “Early Unwind”), ) on the Early Unwind Date and (i) the this Transaction and all of the respective rights and obligations of Dealer the Seller and Counterparty the Purchaser under this Transaction, including, for the Transaction avoidance of doubt, any obligation of the Seller to deliver any shares of Common Stock pursuant to Sections 2.02 and 3.01 and the Purchaser’s obligation to make any payment with respect thereto pursuant to Sections 2.01 and 2.02, shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the this Transaction either prior to or after the Early Unwind Date; provided that Counterparty if such offering of the Convertible Debentures is not consummated as a result of a failure by the Purchaser to satisfy any condition specified in Sections 6(a), (d), (e), (f), (j) and (m) of the Purchase Agreement, the Purchaser shall reimburse Dealer the Seller for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the this Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining obtaining, reestablishing or reestablishing adjusting any hedge or related trading position but excluding any lost profits or similar opportunity costs) and purchase from the Seller any shares of Dealer Common Stock acquired by the Seller or one or of more of its affiliates in connection with the Transactionestablishment of the Seller’s initial hedge position with respect to this Transaction at the price equal to the Seller’s or such affiliate’s cost of acquiring such shares of Common Stock (as determined by the Seller in its sole judgment). The amount of any such reimbursement shall be determined by Dealer the Calculation Agent in its sole good faith discretionfaith. Dealer The Calculation Agent shall notify Counterparty the Purchaser of such amount and Counterparty the Purchaser shall pay such amount in immediately available funds on on, or as promptly as reasonably practicable after, the Early Unwind Date. Each of Dealer The Seller and Counterparty the Purchaser represent and acknowledge to the other that, subject to the proviso included in this SectionSection 2.04, upon an Early Unwind, all obligations with respect to the this Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) additional Convertible Notes is not consummated with the Underwriters initial purchasers for any reason, or if Counterparty fails to deliver to Dealer opinions reason by the close of counsel as required pursuant to Section 9(a), business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateAugust 13, 2012 (or such later date as agreed upon by the parties parties) (the Premium Payment Date August 13, 2012 or such later date, date as agreed upon being the “Early Unwind Date”), the this 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 under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that that, Counterparty shall reimburse Dealer for any reasonable costs or expenses (including market losses) relating to the unwinding of its hedging activities its, or the Hedging Party’s, Hedging Activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position position) unless the sale of Dealer or one or more of its affiliates in connection Convertible Bonds is not consummated with the Transactioninitial purchasers as a result of breach of the Purchase Agreement by the initial purchasers (in which case no such reimbursement will be payable). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretionand in a commercially reasonable manner. Dealer shall notify Counterparty of such amount and Counterparty shall deliver Share Termination Delivery Property or, at the election of Counterparty, pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged. Notwithstanding anything herein or in the Agreement to the contrary, in no event shall Counterparty be required to deliver an aggregate number of Shares in connection with the Early Unwind in excess of 222,861 Shares, subject to adjustment from time to time as a result of actions of Counterparty or events within Counterparty’s control and in accordance with the provisions of this Confirmation and the Equity Definitions.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters initial purchasers for any reason, or if Counterparty fails to deliver to Dealer opinions reason by the close of counsel as required pursuant to Section 9(a), business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateNovember 13, 2006 (or such later date as agreed upon by the parties parties) (the Premium Payment Date November 13, 2006 or such later date, date as agreed upon being the “Early Unwind Date”), the this 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 under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that that, unless the sale of Convertible Bonds is not consummated with the initial purchasers for any reason other than as a result of breach of the Purchase Agreement by the initial purchasers, Counterparty shall purchase from Dealer on the Early Unwind Date all Shares purchased by Dealer or one or more of its affiliates and reimburse Dealer for any costs or expenses (including market losses) relating to the unwinding of its hedging activities Hedging Activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transactionposition). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters for any reason, or if Counterparty fails to deliver to Dealer opinions reason by the close of counsel as required pursuant to Section 9(a), business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateJuly 16, 2007 (or such later date as agreed upon by the parties parties) (the Premium Payment Date July 16, 2007 or such later date, if any, as agreed upon being the “"Early Unwind Date”"), the this 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 JPMorgan and Counterparty Company under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty Company shall purchase from JPMorgan on the Early Unwind Date all Shares purchased by JPMorgan or one or more of its affiliates and shall, notwithstanding anything to the contrary in the Equity Definitions, reimburse Dealer JPMorgan for any reasonable costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss reasonable losses or cost costs incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transactionposition). The amount of any such reimbursement shall be determined by Dealer JPMorgan in its sole good faith discretionusing its commercially reasonable discretion and shall be supported by written evidence of the same. Dealer JPMorgan shall notify Counterparty Company of such amount amount, shall provide written evidence of the same and Counterparty Company shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer JPMorgan and Counterparty Company represent and acknowledge to the other that, subject to the proviso included in this Section, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes for any Transaction hereunder is not consummated with the Underwriters for any reason, or if Counterparty fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(athe underwriting agreement (the “Underwriting Agreement”) dated June 9, 2009 between Counterparty and Citigroup Global Markets Inc. and X.X. Xxxxxx Securities Inc. (the “Representatives”), as representatives of the underwriters thereunder (the “Underwriters”) by the close of business in each case by 5:00 p.m. (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date, the “Early Unwind Date”)Date set forth in the Confirmation for such Transaction, the such Transaction shall automatically terminate (the “Early Unwind”), on the such Early Unwind Date and (i) the such Transaction and all of the respective rights and obligations of Dealer and Counterparty under the such Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the such Transaction either prior to or after the such Early Unwind Date; provided that that, if such failure is due to a breach or default on the part of Counterparty under the Underwriting Agreement, Counterparty shall assume, or reimburse Dealer for any costs the cost of, derivatives or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of other transactions entered into by Dealer or one or more of its affiliates Affiliates in connection with the hedging such Transaction). The amount of any such reimbursement paid by Counterparty shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty Dealer’s actual cost of such amount derivatives or other transactions as Dealer informs Counterparty and Counterparty shall pay such amount be paid in immediately available funds on such Early Unwind Date or, at the election of Counterparty, in lieu of such payment Counterparty may deliver to Dealer, on such Early Unwind Date. Each of Dealer , Shares with a value equal to such amount, as determined by the Calculation Agent, in which event the parties shall enter into customary and Counterparty represent and acknowledge commercially reasonable documentation relating to the other that, subject registered or exempt resale of such Shares; provided that in no event shall Counterparty be obligated to the proviso included deliver in this Section, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally dischargedexcess of 770,894 Shares.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Exchangeable Notes is not consummated with the Underwriters initial purchasers for any reason, reason or if Counterparty fails to deliver to Dealer Wachovia opinions of counsel to Counterparty as required pursuant to Section 9(a), ) by the close of business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateDecember 8, 2006 (or such later date as agreed upon by the parties parties) (the Premium Payment Date December 8, 2006 or such later date, date as agreed upon being the “Early Unwind Date”), the this 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 Wachovia and Counterparty under the Transaction shall be cancelled and terminated and (ii) each party Wachovia shall be released and discharged by the other party Counterparty from and Counterparty agrees not to make any claim against the other party Wachovia with respect to any obligations or liabilities of the other party Wachovia arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall purchase from Wachovia on the Early Unwind Date all Shares purchased by Wachovia or one or more of its affiliates and reimburse Dealer Wachovia for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transactionposition). The amount of any such reimbursement shall be determined by Dealer Wachovia in its sole good faith discretion. Dealer Wachovia shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer Wachovia and Counterparty represent represents and acknowledge acknowledges to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters Initial Purchaser for any reason, reason or if Counterparty fails to deliver to Dealer JPMorgan opinions of counsel to Counterparty as required pursuant to Section 9(a), ) by the close of business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateFebruary 14, 2006 (or such later date as agreed upon by the parties parties) (the Premium Payment Date February 14, 2006 or such later date, date as agreed upon being the “Early Unwind Date”), the this 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 JPMorgan and Counterparty under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall purchase from JPMorgan on the Early Unwind Date all Shares purchased by JPMorgan or one or more of its affiliates and reimburse Dealer JPMorgan for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transactionposition). The amount of any such reimbursement shall be determined by Dealer JPMorgan in its sole good faith discretion. Dealer JPMorgan shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer JPMorgan and Counterparty represent represents and acknowledge acknowledges to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Debentures is not consummated with the Underwriters initial purchasers for any reason, or if Counterparty fails to deliver to Dealer opinions other than as a result of counsel as required pursuant to Section 9(a)a breach by the initial purchasers, by the close of business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateMay 11, 2004 (or such later date as agreed upon by the parties parties) (the Premium Payment Date May 11, 2004 or such later date, date as agreed upon being the “Early Unwind Date”), the this 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 JPMorgan and Counterparty under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall reimburse Dealer for any costs or expenses (including market losses) relating to purchase from JPMorgan on the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer Early Unwind Date all Shares purchased by JPMorgan or one or more of its affiliates in connection with hedging this Transaction and assume, or reimburse the cost of, derivatives entered into by JPMorgan or one or more of its affiliates in connection with hedging this Transaction). The amount of any such reimbursement purchase price paid by the Counterparty shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty JPMorgan’s actual cost of such amount Shares and derivatives as JPMorgan informs Counterparty and shall pay such amount be paid in immediately available funds on the Early Unwind Date. Each of Dealer JPMorgan and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Sectionthe preceding sentence, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Option Securities” (as defined in the Underwriting Purchase Agreement) is not consummated with the Underwriters Initial Purchaser for any reason, or if Counterparty fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), in each case by 5:00 p.m. (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date, 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 under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed as Hedging Positions in connection with the respect of this Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall reimburse purchase from Dealer for any costs or expenses (including market losses) relating to on the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Early Unwind Date all Shares purchased by Dealer or one or more of its affiliates in connection with the Transaction). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on Transaction at the Early Unwind Datethen prevailing market price. Each of Dealer and Counterparty represent represents and acknowledge acknowledges to the (NY) 27961/685/CALL.SPREAD/WMGI.WF.addtl.bond.hedge.confirm.doc other that, subject to the proviso included in this SectionSection 9(t), upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.. (NY) 27961/685/CALL.SPREAD/WMGI.WF.addtl.bond.hedge.confirm.doc Please confirm that the foregoing correctly sets forth the terms of our agreement by executing a copy of this Confirmation and returning it to us by facsimile at 000-000-0000 (Attention: Derivatives Structuring Group). Very truly yours, XXXXX FARGO SECURITIES, LLC, XXXXX FARGO BANK, NATIONAL ASSOCIATION acting solely in its capacity as Agent By: Xxxxx Fargo Securities, LLC, of Xxxxx Fargo Bank, National Association acting solely in its capacity as its Agent By: /s/Xxxxxxxx Xxxxx By: /s/Xxxxxxxx Xxxxx Name: Xxxxxxxx Xxxxx Name: Xxxxxxxx Xxxxx Title: Managing Director Title: Xxxxxxxx Xxxxx Accepted and confirmed as of the date first above written: Xxxxxx Medical Group, Inc. By: /s/ Xxxxx X. Xxxxx Authorized Signatory Name: Xxxxx X. Xxxxx

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters initial purchasers for any reason, reason or if Counterparty fails to deliver to Dealer JPMorgan opinions of counsel to Counterparty as required pursuant to Section 9(a), ) by the close of business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateMarch 16, 2007 (or such later date as agreed upon by the parties parties) (the Premium Payment Date March 16, 2007 or such later date, date as agreed upon being the “Early Unwind Date”), the this 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 JPMorgan and Counterparty under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall purchase from JPMorgan on the Early Unwind Date all Shares purchased by JPMorgan or one or more of its affiliates and reimburse Dealer JPMorgan for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transactionposition). The amount of any such reimbursement shall be determined by Dealer JPMorgan in its sole good faith discretion. Dealer JPMorgan shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer JPMorgan and Counterparty represent represents and acknowledge acknowledges to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Purchase Agreement) is not consummated with the Underwriters Initial Purchaser for any reason, or if Counterparty fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), in each case by 5:00 p.m. (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date, 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 under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed as Hedging Positions in connection with the respect of this Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall reimburse purchase from Dealer for any costs or expenses (including market losses) relating to on the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Early Unwind Date all Shares purchased by Dealer or one or more of its affiliates in connection with the Transaction). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on Transaction at the Early Unwind Datethen prevailing market price. Each of Dealer and Counterparty represent represents and acknowledge acknowledges to the other that, subject to the proviso included in this SectionSection 9(t), upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.. Please confirm that the foregoing correctly sets forth the terms of our agreement by executing a copy of this Confirmation and returning it to us by facsimile at 000-000-0000 (Attention: Derivatives Structuring Group). Very truly yours, XXXXX FARGO SECURITIES, LLC, XXXXX FARGO BANK, NATIONAL ASSOCIATION acting solely in its capacity as Agent By: Xxxxx Fargo Securities, LLC, of Xxxxx Fargo Bank, National Association acting solely in its capacity as its Agent By: /s/ Xxxxxxxx Xxxxx By: /s/ Xxxxxxxx Xxxxx Name: Xxxxxxxx Xxxxx Name: Xxxxxxxx Xxxxx Title: Managing Director Title: Managing Director Accepted and confirmed as of the date first above written: Xxxxxx Medical Group, Inc. By: /s/ Xxxxx X. Xxxxx Authorized Signatory

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters initial purchaser for any reason, or if Counterparty fails to deliver to Dealer opinions reason by the close of counsel as required pursuant to Section 9(a), business in each case by 5:00 p.m. (New York City time) on the Premium Payment Date[ ], 2015 (or such later date as agreed upon by the parties parties) (the Premium Payment Date [ ], 2015 or such later date, date as agreed upon 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 under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that, except to the extent that the Early Unwind Date occurred as a result of a breach of the Purchase Agreement by Dealer or any of its affiliates, Counterparty shall reimburse Dealer for any costs or expenses (including market losses, unless Counterparty agrees to purchase any such Shares at the cost at which Dealer purchased such Shares) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transactionposition). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Initial Securities” (as defined in the Underwriting Agreement) is not consummated with the Underwriters for any reason, or if Counterparty fails to deliver to Dealer Bank opinions of counsel as required pursuant to Section 9(a), in each case by 5:00 p.m. (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date, 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 Bank and Counterparty under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall reimburse Dealer for any costs or expenses (including market losses) relating to purchase from Bank on the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer Early Unwind Date all Shares purchased by Bank or one or more of its affiliates in connection with the Transaction). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on Transaction at the Early Unwind Datethen prevailing market price. Each of Dealer Bank and Counterparty represent represents and acknowledge acknowledges to the other that, subject to the proviso included in this SectionSection 9(u), upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.. Counterparty hereby agrees (a) to check this Confirmation carefully and immediately upon receipt so that errors or discrepancies can be promptly identified and rectified and (b) to confirm that the foregoing (in the exact form provided by Bank) correctly sets forth the terms of the agreement between Bank and Counterparty with respect to the Transaction, by manually signing this Confirmation or this page hereof as evidence of agreement to such terms and providing the other information requested herein and immediately returning an executed copy to Equity Derivatives Documentation Department, Facsimile No. (000) 000-0000/83. Very truly yours, Xxxxxxx, Xxxxx & Co. By: /s/ Xxxxxxx Sachs & Co Authorized Signatory Name: Xxxxxxx Xxxxx & Co Accepted and confirmed as of the Trade Date: NuVasive, Inc. By: /s/ Xxxxxxx Xxxxxxx Authorized Signatory Name: Xxxxxxx Xxxxxxx

Early Unwind. (i) In the event the sale of the [“Underwritten Securities” Securities”]18[“Option Securities”]19 (as defined in the Underwriting Purchase Agreement) is not consummated with the Underwriters Initial Purchasers for any reason, or if Counterparty fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), in each case by 5:00 p.m. (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date, 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 under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall purchase from Dealer on the Early Unwind Date all Shares purchased by Dealer or one or more of its affiliates for the purpose of hedging the Transaction and reimburse Dealer for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transactionposition). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer and Counterparty represent represents and acknowledge acknowledges to the other that, subject to the proviso included in this SectionSection 9(u), upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged. 18 Insert for Base Call Option Confirmation. 19 Insert for Additional Call Option Confirmation.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters underwriter thereof for any reason, or if Counterparty fails to deliver to Dealer opinions reason by the close of counsel as required pursuant to Section 9(a), business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateSeptember 29, 2009 (or such later date as agreed upon by the parties parties) (the Premium Payment Date September 29, 2009 or such later date, date as agreed upon being the “Early Unwind Date”), the Transaction shall automatically terminate (the “Early Unwind”), ) on the Early Unwind Date and (ia) the Transaction and all of the respective rights and obligations of Dealer Citi and Counterparty under the Transaction shall be cancelled and terminated and (iib) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall reimburse Dealer for any costs or expenses (including market losses) relating to the unwinding cost of its and, without duplication, losses arising out of all derivatives and other hedging activities in connection with the Transaction (including any loss or cost incurred as a result entered into, and all purchases and dispositions of terminatingShares, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer by Citi or one or more of its affiliates affiliates, in each case, in connection with hedging of the Transaction)Transaction and the unwind of such hedging activities; provided further that Counterparty’s reimbursement obligation pursuant to the immediately preceding proviso shall not apply to the extent the Early Unwind Date occurred as the result of a breach of the Purchase Agreement by Citi. The amount of any such reimbursement payable by Counterparty shall be determined by Dealer in Citi’s (or its sole good faith discretion. Dealer shall notify Counterparty affiliates) actual costs and losses related to such Shares and unwind costs of such amount derivatives and other hedging activities as Citi informs Counterparty and, subject to Counterparty’s right to elect settlement by delivery of Shares (the “Unwind Shares”) pursuant to the “Private Placement Procedures” above, shall pay such amount be paid in immediately available funds on the Early Unwind Date. Each of Dealer Citi and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Sectionthe second preceding sentence, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters initial purchasers for any reason, or if Counterparty fails to deliver to Dealer opinions reason by the close of counsel as required pursuant to Section 9(a), business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateAugust 13, 2012 (or such later date as agreed upon by the parties parties) (the Premium Payment Date August 13, 2012 or such later date, date as agreed upon being the “Early Unwind Date”), the this 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 under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that that, Counterparty shall reimburse Dealer for any reasonable costs or expenses (including market losses) relating to the unwinding of its hedging activities its, or the Hedging Party’s, Hedging Activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position position) unless the sale of Dealer or one or more of its affiliates in connection Convertible Bonds is not consummated with the Transactioninitial purchasers as a result of breach of the Purchase Agreement by the initial purchasers (in which case no such reimbursement will be payable). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretionand in a commercially reasonable manner. Dealer shall notify Counterparty of such amount and Counterparty shall deliver Share Termination Delivery Property or, at the election of Counterparty, pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged. Notwithstanding anything herein or in the Agreement to the contrary, in no event shall Counterparty be required to deliver an aggregate number of Shares in connection with the Early Unwind in excess of 1,448,600 Shares, subject to adjustment from time to time as a result of actions of Counterparty or events within Counterparty’s control and in accordance with the provisions of this Confirmation and the Equity Definitions.

Early Unwind. (i) In the event that the sale of the “Underwritten Securities” (as defined in the Underwriting Purchase Agreement (the “Purchase Agreement”), dated as of September 16, 2010, between Counterparty and X.X. Xxxxxx Securities LLC, as representative of the Initial Purchasers party thereto (the “Initial Purchasers”)) is not consummated with the Underwriters Initial Purchasers for any reason, or if Counterparty fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), in each case by 5:00 p.m. (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date, the “Early Unwind Date”), then 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 under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall reimburse Dealer for any costs or expenses (including market losses) relating shall, to the unwinding extent permitted by the Credit Agreement, dated as of its hedging activities in connection with November 20, 2006, among Counterparty, as Borrower, the Transaction (including any loss or cost incurred several lenders from time to time party thereto, Keybank National Association, as a result of terminatingAdministrative Agent, liquidatingCo-Lead Arranger, obtaining or reestablishing any hedge or related trading position of Sole Book Runner and Swingline Lender, and LaSalle Bank National Association, as Co-Lead Arranger, purchase from Dealer on the Early Unwind Date all Shares purchased by Dealer or one or more of its affiliates in connection with the Transaction). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on Transaction at the Early Unwind Datethen prevailing market price. Each of Dealer and Counterparty represent and acknowledge to the other that, subject to the proviso included in this SectionSection 9(t), upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters Initial Purchaser for any reason, reason or if Counterparty fails to deliver to Dealer opinions of counsel to Counterparty as required pursuant to Section 9(a), ) by the close of business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateMarch 29, 2010 (or such later date as agreed upon by the parties parties) (the Premium Payment Date March 29, 2010 or such later date, date as agreed upon being the “Early Unwind Date”), the this Transaction shall automatically terminate (the “Early Unwind”), on the Early Unwind Date and and, if Dealer has then received from Counterparty the Premium, Dealer shall refund such Premium to Counterparty, whereupon (i) the Transaction and all of the respective rights and obligations of Dealer and Counterparty under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that that, except to the extent the Early Unwind Date occurred as a result of the breach of the Purchase Agreement by the Initial Purchasers, if the sale of the Convertible Notes is not consummated with the Initial Purchasers by the close of business in New York on the Early Unwind Date as a result of a failure by Counterparty to satisfy any condition to closing contained in Section 6 of the Purchase Agreement, Counterparty shall reimburse Dealer for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transaction). The amount of any such reimbursement shall be JPMorgan Chase Bank, National Association Organised under the laws of the United States as a National Banking Association Main Xxxxxx 0000 Xxxxxxx Xxxxxxx, Xxxxxxxx, Xxxx 00000 Registered as a branch in England & Wales branch No. BR000746 Registered Branch Office 000 Xxxxxx Xxxx, Xxxxxx XX0X 0XX Authorised and regulated by the Financial Services Authority determined by Dealer in its sole good faith and commercially reasonable discretion. Dealer shall notify Counterparty of such amount and and, subject to paragraph (i)(ii) below, Counterparty shall pay such amount in immediately available funds on the Currency Business Day immediately following the Early Unwind Date. Each of Dealer and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Section, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale by Counterparty of the “Underwritten Securities” (as defined in the Underwriting Agreement) Units is not consummated with the Underwriters initial purchasers pursuant to the Purchase Agreement for any reason, or if Counterparty fails to deliver to Dealer opinions reason by the close of counsel as required pursuant to Section 9(a), business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateJune 13, 2006 (or such later date as agreed upon by the parties parties, which in no event shall be later than the date specified for this purpose in the Purchase Agreement) (the Premium Payment Date June 13, 2006 or such later date, 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 Bank and Counterparty under the Transaction thereunder shall be cancelled and terminated and (ii) if the failure to consummate the sale of the Units results from a breach by Counterparty of any representation of or any undertaking by Counterparty contained in the Purchase Agreement, Counterparty shall pay to Bank an amount in cash equal to the aggregate amount of costs and expenses relating to the unwinding of Bank’s reasonable hedging activities in respect of the Transaction (including market losses incurred in reselling any Shares purchased by Bank or its affiliates in connection with such reasonable 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 the other either party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall reimburse Dealer for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transaction). The amount of any such reimbursement shall be determined by Dealer Bank in its sole reasonable good faith discretion. Dealer Bank shall notify Counterparty the Company of such amount amount, including, upon Counterparty’s request, an explanation of the basis of determination of such amount, and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer Bank and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Section, that upon an Early UnwindUnwind and following the payment referred to above, all obligations with respect to the Transaction shall be deemed fully and finally discharged.and

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters initial purchasers for any reason, or if Counterparty fails to deliver to Dealer opinions reason by the close of counsel as required pursuant to Section 9(a), business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateAugust 13, 2012 (or such later date as agreed upon by the parties parties) (the Premium Payment Date August 13, 2012 or such later date, date as agreed upon being the “Early Unwind Date”), the this 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 under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that that, Counterparty shall reimburse Dealer for any reasonable costs or expenses (including market losses) relating to the unwinding of its hedging activities its, or the Hedging Party’s, Hedging Activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position position) unless the sale of Dealer or one or more of its affiliates in connection Convertible Bonds is not consummated with the Transactioninitial purchasers as a result of breach of the Purchase Agreement by the initial purchasers (in which case no such reimbursement will be payable). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretionand in a commercially reasonable manner. Dealer shall notify Counterparty of such amount and Counterparty shall deliver Share Termination Delivery Property or, at the election of Counterparty, pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged. Notwithstanding anything herein or in the Agreement to the contrary, in no event shall Counterparty be required to deliver an aggregate number of Shares in connection with the Early Unwind in excess of 1,931,467 Shares, subject to adjustment from time to time as a result of actions of Counterparty or events within Counterparty’s control and in accordance with the provisions of this Confirmation and the Equity Definitions.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters Initial Purchaser for any reason, reason or if Counterparty fails to deliver to Dealer BofA opinions of counsel to Counterparty as required pursuant to Section 9(a), ) by the close of business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateJune 26, 2006 (or such later date as agreed upon by the parties parties) (the Premium Payment Date June 26, 2006 or such later date, date as agreed upon being the “Early Unwind Date”), the this 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 BofA and Counterparty under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that that, if the sale of the Convertible Notes is not consummated with the initial purchasers by the close of business in New York on the Early Unwind Date as a result of a failure by Counterparty to satisfy any condition to closing contained in Section 6 of the Purchase Agreement, Counterparty shall purchase from BofA on the Early Unwind Date all Shares, if any, purchased by BofA or one or more of its affiliates and reimburse Dealer BofA for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transactionposition). The amount of any such reimbursement shall be determined by Dealer BofA in its sole good faith discretion. Dealer BofA shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer BofA and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters Initial Purchasers for any reason, reason or if Counterparty fails to deliver to Dealer Bank opinions of counsel to Counterparty as required pursuant to Section 9(a), ) by the close of business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateMarch 26, 2007 (or such later date as agreed upon by the parties (the Premium Payment Date parties) March 26, 2007 or such later date, date as agreed upon being the “Early Unwind Date”), the this 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 Bank and Counterparty under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that that, other than to the extent the Early Unwind Date occurred as a result of the breach of the Purchase Agreement by the Initial Purchasers, Counterparty shall reimburse Dealer Bank for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transactionposition). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer Bank shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer Bank and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Additional Securities is not consummated with the Underwriters Initial Purchasers for any reason, reason or if Counterparty fails to deliver to Dealer opinions of counsel to Counterparty as required pursuant to Section 9(a), ) by the close of business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateNovember 24, 2009 (or such later date as agreed upon by the parties parties) (the Premium Payment Date November 24, 2009 or such later date, date as agreed upon being the “Early Unwind Date”), the this 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 Dealer, Counterparty and Counterparty Parent under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that if the sale is not consummated for any reason other than a default by Dealer, Counterparty shall purchase from Dealer on the Early Unwind Date all Shares purchased by Dealer or one or more of its affiliates and reimburse Dealer for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transactionposition). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer and Counterparty represent represents and acknowledge acknowledges to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event (x) the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters Initial Purchasers for any reasonreason by 12:00 p.m. London time on September 13, or if Counterparty fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), in each case by 5:00 p.m. 2017 (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties parties) or (y) the Premium Payment Date or Initial Purchasers have terminated the Purchase Agreement pursuant to Section 10 thereof (September 13, 2017, such later agreed date, or the date Dealer becomes aware that the Initial Purchasers have terminated the Purchase Agreement, as applicable, 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 under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that that, unless the Early Unwind Date occurred as a result of a breach of the Purchase Agreement by Dealer, Counterparty shall purchase from Dealer on the Early Unwind Date all Shares purchased by Dealer or one of more of its affiliates for the purpose of hedging the Transaction and reimburse Dealer for any costs or expenses (including including, without duplication, market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position position) less any gain for the Dealer for the unwind of such hedging activity. Any such unwind must be performed by the Dealer or one or more of in a commercially reasonable manner, it being understood that Dealer shall not increase its affiliates in connection with hedge positions after the Transaction)Early Unwind Date. The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretiondiscretion and, upon request by Counterparty, documented to Counterparty in reasonable detail. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters initial purchaser for any reason, or if Counterparty fails to deliver to Dealer opinions reason by the close of counsel as required pursuant to Section 9(a), business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateJune 3, 2019 (or such later date as agreed upon by the parties parties) (the Premium Payment Date June 3, 2019 or such later date, date as agreed upon 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 under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that, except to the extent that the Early Unwind Date occurred as a result of a breach of the Purchase Agreement by Dealer or any of its affiliates, Counterparty shall reimburse Dealer for any costs or expenses (including market losses, unless Counterparty agrees to purchase any such Shares at the cost at which Dealer purchased such Shares) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transactionposition). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters Initial Purchaser for any reason, reason or if Counterparty fails to deliver to Dealer JPMorgan opinions of counsel to Counterparty as required pursuant to Section 9(a), ) by the close of business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateJune 26, 2006 (or such later date as agreed upon by the parties parties) (the Premium Payment Date June 26, 2006 or such later date, date as agreed upon being the “Early Unwind Date”), the this 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 JPMorgan and Counterparty under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that that, if the sale of the Convertible Notes is not consummated with the initial purchasers by the close of business in New York on the Early Unwind Date as a result of a failure by Counterparty to satisfy any condition to closing contained in Section 6 of the Purchase Agreement, Counterparty shall purchase from JPMorgan on the Early Unwind Date all Shares, if any, purchased by JPMorgan or one or more of its affiliates and reimburse Dealer JPMorgan for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transactionposition). The amount of any such reimbursement shall be determined by Dealer JPMorgan in its sole good faith discretion. Dealer JPMorgan shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer JPMorgan and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters initial purchasers for any reason, reason or if the Counterparty fails to deliver to Dealer JPMorgan opinions of counsel to the Counterparty as required pursuant to Section 9(a), ) by the close of business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateAugust 1, 2005 (or such later date as agreed upon by the parties parties) (the Premium Payment Date August 1, 2005 or such later date, date as agreed upon being the “Early Unwind Date”), the this 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 JPMorgan and Counterparty under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall reimburse Dealer for any costs or expenses purchase from JPMorgan on the Early Unwind Date (including market lossesi) relating to the unwinding of its hedging activities 300,000 Shares acquired by JPMorgan in connection with the establishment of JPMorgan’s initial hedge under the Transaction at the price equal to JPMorgan’s cost of acquiring such Shares (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates determined in connection with the Transaction). The amount of any such reimbursement shall be determined by Dealer in its JPMorgan’s sole good faith discretion), and (ii) any additional Shares (as determined in JPMorgan’s sole good faith discretion) acquired by JPMorgan in connection with maintaining JPMorgan’s hedge under the Transaction at the Reference Price on the Early Unwind Date. Dealer JPMorgan shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer JPMorgan and Counterparty represent represents and acknowledge acknowledges to the other that, subject to the proviso included in this SectionSection 9(l), upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters underwriters thereof for any reason, or if Counterparty fails to deliver to Dealer opinions reason by the close of counsel as required pursuant to Section 9(a), business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateJune 15, 2007 (or such later date as agreed upon by the parties parties) (the Premium Payment Date June 15, 2007 or such later date, date as agreed upon being the “"Early Unwind Date”"), the Transaction shall automatically terminate (the “"Early Unwind”), ") on the Early Unwind Date and (ia) the Transaction and all of the respective rights and obligations of Dealer Citibank and Counterparty under the Transaction shall be cancelled and terminated and (iib) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that that, other than in cases involving a breach of the Underwriting Agreement by Citibank or an affiliate thereof, Counterparty shall reimburse Dealer for any costs or expenses (including market losses) relating to purchase from Citibank on the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer Early Unwind Date all Shares purchased by Citibank or one or more of its affiliates affiliates, and assume, or reimburse the cost of, derivatives entered into by Citibank or one or more of its affiliates, in each case, in connection with hedging of the Transaction)Transaction on or after the date hereof and the unwind of such hedging activities. The amount of any such reimbursement payable by Counterparty shall be determined by Dealer in Citibank's (or its sole good faith discretion. Dealer shall notify Counterparty affiliates) actual cost of such amount Shares and unwind cost of such derivatives as Citibank informs Counterparty and shall pay such amount be paid in immediately available funds on the Early Unwind Date. Each of Dealer Citibank and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Sectionthe preceding sentence, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged. Governing law. The law of the State of New York.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters for any reason, or if Counterparty fails to deliver to Dealer opinions reason by the close of counsel as required pursuant to Section 9(a), business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateJuly 16, 2007 (or such later date as agreed upon by the parties parties) (the Premium Payment Date July 16, 2007 or such later date, date as agreed upon being the “"Early Unwind Date”"), the this 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 JPMorgan and Counterparty under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall purchase from JPMorgan on the Early Unwind Date all Shares purchased by JPMorgan or one or more of its affiliates and reimburse Dealer JPMorgan for any reasonable costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss reasonable losses or cost costs incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transactionposition). The amount of any such reimbursement shall be determined by Dealer JPMorgan in its sole good faith discretionusing commercially reasonable discretion and shall be supported by written evidence of the same. Dealer JPMorgan shall notify Counterparty of such amount amount, shall provide written evidence of the same and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer JPMorgan and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Exchangeable Notes is not consummated with the Underwriters Initial Purchasers for any reason, reason or if Counterparty fails to deliver to Dealer JPMorgan opinions of counsel to Counterparty as required pursuant to Section 9(a), ) by the close of business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateApril 2, 2007 (or such later date as agreed upon by the parties parties) (the Premium Payment Date April 2, 2007 or such later date, date as agreed upon being the “Early Unwind Date”), the this 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 JPMorgan, Counterparty and Counterparty Parent under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that if the sale is not consummated for any reason other than a default by any Initial Purchaser, the Counterparty shall purchase from JPMorgan on the Early Unwind Date all Shares purchased by JPMorgan or one or more of its affiliates and reimburse Dealer JPMorgan for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transactionposition). The amount of any such reimbursement shall be determined by Dealer JPMorgan in its sole good faith discretion. Dealer JPMorgan shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer JPMorgan and Counterparty represent represents and acknowledge acknowledges to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (iA) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) is not consummated with the Underwriters for any reason, or if that Counterparty fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), or (B) to the extent the transactions contemplated in the Exchange Agreements are not consummated for any reason, in each case by 5:00 p.m. (New York City time) on the third Business Day immediately following the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date, date the “Early Unwind Date”), the Transaction or, in the cause of clause (B) above, a corresponding portion of the Transaction, shall automatically terminate (the “Early Unwind”), on the Early Unwind Date and (i) the Transaction Transaction, or portion thereof in the case of clause (B) above, and all of the respective rights and obligations of Dealer and Counterparty under the Transaction Transaction, or portion thereof, shall be cancelled and terminated, and Counterparty shall pay to Dealer an amount in cash equal to the aggregate amount of commercially reasonable costs and expenses relating to the unwinding of Dealer’s commercially reasonable hedging activities in respect of the Transaction, or portion thereof, so terminated (including commercially reasonable market losses incurred in reselling any Shares purchased by Dealer or its affiliates in connection with such commercially reasonable hedging activities, unless Counterparty agrees to purchase any such Shares at the cost at which Dealer purchased such Shares) or, at the election of Counterparty, deliver to Dealer Shares with a value equal to such amount, as determined by the Calculation Agent, in which event the parties shall enter into customary and commercially reasonable documentation relating to the registered or exempt resale of such Shares (provided that the aggregate amount of Shares deliverable pursuant to this Section 9(v) shall not exceed 824,1504), and (ii) 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 the other party arising out of and to be performed in connection with the Transaction Transaction, or portion thereof, so terminated either prior to or after the Early Unwind Date; provided that Counterparty shall reimburse Dealer for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transaction). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer and Counterparty represent represents and acknowledge acknowledges to the other that, subject to the proviso included in this Section, upon an Early Unwind, all obligations with respect to the Transaction Transaction, or portion thereof, so terminated shall be deemed fully and finally discharged. For the avoidance of doubt, it is intended that payments pursuant to this Section 9(v) shall be made solely in respect of the terminated portion of the Transaction.

Early Unwind. (iA) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) is not consummated with the Underwriters for any reason, or if Counterparty fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), or (B) to the extent the transactions contemplated in the Exchange Agreements are not consummated for any reason, in each case by 5:00 p.m. (New York City time) on the Premium Payment seventh Business Day immediately following the Trade Date, or such later date as agreed upon by the parties (the Premium Payment Date such Business Day or such later date, the “Early Unwind Date”), the Transaction Transaction, or, in the case of clause (B) above, a corresponding portion of the Transaction, shall automatically terminate (the “Early Unwind”), ) on the Early Unwind Date and (i) the Transaction Transaction, or portion thereof in the case of clause (B) above, and all of the respective rights and obligations of Dealer and Counterparty under the Transaction Transaction, or portion thereof, shall be cancelled and terminated, and Counterparty shall pay to Dealer an amount in cash equal to the aggregate amount of commercially reasonable costs and expenses relating to the unwinding of Dealer’s commercially reasonable hedging activities in respect of the Transaction, or portion thereof, so terminated (including commercially reasonable market losses incurred in reselling any Shares purchased by or on behalf of Dealer or its affiliates in connection with such commercially reasonable hedging activities, unless Counterparty agrees to purchase any such Shares at the cost at which Dealer purchased such Shares) or, at the election of Counterparty, deliver to Dealer Shares with a value equal to such amount, as determined by the Calculation Agent, in which event the parties shall enter into customary and commercially reasonable documentation relating to the registered or exempt resale of such Shares (provided that the aggregate amount of Shares deliverable pursuant to this Section 9(v) shall not exceed the Number of Shares), and (ii) 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 the other party arising out of and to be performed in connection with the Transaction Transaction, or portion thereof, so terminated either prior to or after the Early Unwind Date; provided that Counterparty shall reimburse Dealer for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transaction). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer and Counterparty represent represents and acknowledge acknowledges to the other that, subject to the proviso included in this Section, that upon an Early Unwind, all obligations with respect to the Transaction Transaction, or portion thereof, so terminated (other than the payment obligation set forth in this Section 9(v)) shall be deemed fully and finally discharged. For the avoidance of doubt, it is intended that payments pursuant to this Section 9(v) shall be made solely in respect of the terminated portion of the Transaction.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Debentures is not consummated with the Underwriters initial purchasers for any reason, or if Counterparty fails to deliver to Dealer opinions other than as a result of counsel as required pursuant to Section 9(a)a breach by the initial purchasers, by the close of business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateMay 11, 2004 (or such later date as agreed upon by the parties parties) (the Premium Payment Date May 11, 2004 or such later date, date as agreed upon being the “Early Unwind Date”” ), the this 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 JPMorgan and Counterparty Company under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty Company shall reimburse Dealer for any costs or expenses (including market losses) relating to purchase from JPMorgan on the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer Early Unwind Date all Shares purchased by JPMorgan or one or more of its affiliates in connection with hedging this Transaction and assume, or reimburse the cost of, derivatives entered into by JPMorgan or one or more of its affiliates in connection with hedging this Transaction). The amount of any such reimbursement purchase price paid by the Company shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty JPMorgan’s actual cost of such amount Shares and Counterparty derivatives as JPMorgan informs Company and shall pay such amount be paid in immediately available funds on the Early Unwind Date. Each of Dealer JPMorgan and Counterparty Company represent and acknowledge to the other that, subject to the proviso included in this Sectionthe preceding sentence, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. Notwithstanding anything in this Confirmation to the contrary, and subject to the immediately succeeding sentence, the respective obligations of the parties under the Transaction shall become final and binding, and the Transaction shall become effective, on the Premium Payment Date. In the event that (i) In the event the sale of the “Underwritten Private Placement Securities” (as defined in the Underwriting Purchase Agreement) is not consummated with the Underwriters Initial Purchasers for any reason, or if Counterparty fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a)) of this Confirmation, in each case by 5:00 p.m. (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date, date the “Early Unwind Date”)) or (ii) the $140,000,000 Credit Agreement dated as of October 3, 2007 among Counterparty, as Borrower, the several lenders from time to time party thereto, TD Banknorth, N.A. and Wachovia Bank, National Association, as Co-Syndication Agents and JPMorgan Chase Bank, N.A., as Administrative Agent is not repaid in full and terminated on or prior to the Premium Payment Date, the Transaction shall automatically terminate (the “Early Unwind”), on the Early Unwind Date and (ix) the Transaction and all of the respective rights and obligations of Dealer and Counterparty under the Transaction shall be cancelled and terminated and (iiy) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall reimburse deliver to Dealer, other than in cases involving a breach of the Purchase Agreement by Dealer for any or an affiliate of Dealer, an amount in cash equal to the aggregate amount of costs or and expenses (including market losses) relating to the unwinding (which unwinding shall be conducted in a commercially reasonable manner) of its Dealer’s hedging activities in connection with respect of the Transaction (including market losses incurred in reselling any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Shares purchased by Dealer or one or more of its affiliates in connection with the Transaction). The amount of such hedging activities, unless Counterparty agrees to purchase any such reimbursement shall be determined Shares at the cost at which Dealer purchased such Shares), but after giving effect to any gains experienced by Dealer in its sole good faith discretion. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind DateDealer. Each of Dealer and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Section, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.. Please confirm that the foregoing correctly sets forth the terms of our agreement by executing this Confirmation and returning it to EDG Confirmation Group, X.X. Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000-0000, or by fax to (000) 000 0000. Very truly yours,

Early Unwind. Notwithstanding anything in this Confirmation to the contrary, and subject to the immediately succeeding sentence, the respective obligations of the parties under the Transaction shall become final and binding, and the Transaction shall become effective, on the Premium Payment Date. In the event that (i) In the event the sale of the “Underwritten Private Placement Securities” (as defined in the Underwriting Purchase Agreement) is not consummated with the Underwriters Initial Purchasers for any reason, or if Counterparty Company fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a)) of this Confirmation, in each case by 5:00 p.m. (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date, date the “Early Unwind Date”)) or (ii) the $140,000,000 Credit Agreement dated as of October 3, 2007 among Company, as Borrower, the several lenders from time to time party thereto, TD Banknorth, N.A. and Wachovia Bank, National Association, as Co-Syndication Agents and JPMorgan Chase Bank, N.A., as Administrative Agent is not repaid in full and terminated on or prior to the Premium Payment Date, the Transaction shall automatically terminate (the “Early Unwind”), on the Early Unwind Date and (ix) the Transaction and all of the respective rights and obligations of Dealer and Counterparty Company under the Transaction shall be cancelled and terminated and (iiy) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty Company shall reimburse deliver to Dealer, other than in cases involving a breach of the Purchase Agreement by Dealer for any or an affiliate of Dealer, an amount in cash equal to the aggregate amount of costs or and expenses (including market losses) relating to the unwinding (which unwinding shall be conducted in a commercially reasonable manner) of its Dealer’s hedging activities in connection with respect of the Transaction (including market losses incurred in reselling any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Shares purchased by Dealer or one or more of its affiliates in connection with the Transaction). The amount of such hedging activities, unless Company agrees to purchase any such reimbursement shall be determined Shares at the cost at which Dealer purchased such Shares), but after giving effect to any gains experienced by Dealer in its sole good faith discretion. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind DateDealer. Each of Dealer and Counterparty Company represent and acknowledge to the other that, subject to the proviso included in this Section, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.. Please confirm that the foregoing correctly sets forth the terms of our agreement by executing this Confirmation and returning it to EDG Confirmation Group, X.X. Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000-0000, or by fax to (000) 000 0000. Very truly yours,

Early Unwind. (i) In the event the sale by Counterparty of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters initial purchasers pursuant to the Purchase Agreement for any reason, or if Counterparty fails to deliver to Dealer opinions reason by the close of counsel as required pursuant to Section 9(a), business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateApril 27, 2007 (or such later date as agreed upon by the parties parties) (the Premium Payment Date April 27, 2007, or such later date, 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 under the Transaction thereunder shall be cancelled and terminated and (ii) if the sale of Convertible Notes is not consummated with the initial purchasers for any reason other than as a result of breach of the Purchase Agreement by any initial purchaser, Counterparty shall pay to Dealer 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 the other either party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall reimburse Dealer for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transaction). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Section, that upon an Early UnwindUnwind and following the payment referred to above, all obligations with respect to the Transaction shall be deemed fully and finally discharged. For the avoidance of doubt, this Section 9(k) shall become effective as of the Trade Date and shall remain in effect whether or not the Effective Date of the Transaction occurs.

Early Unwind. (i) In the event (x) the sale of the “Underwritten SecuritiesFirm Notes” (as defined in the Underwriting Purchase Agreement) is not consummated with the Underwriters Initial Purchasers for any reason, or if Counterparty fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), in each case reason by 5:00 p.m. (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date, date the “Early Unwind Date”)) or (y) each of the 2019 Debt Facility, the 2017 EIB loan, the 2014 EIB loan (each as defined in the Offering Memorandum) and the Facility Agreement dated July 25, 2019 between Issuer, Italian Branch and Banca Nazionale Del Lavoro S.p.A. is not repaid in full and terminated on or prior to the Premium Payment 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 under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that (x) Counterparty shall reimburse Dealer for any costs or expenses (including market losses) relating to the unwinding of its hedging activities losses reasonably incurred in connection with Dealer’s disposition of any hedge position with respect to the Transaction (including any loss or cost incurred as a result of terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transaction). The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion. Early Unwind and (y) with respect to any Early Unwind, Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds return on the Early Unwind DateDate any Premium actually paid by Counterparty. Each of Dealer and Counterparty represent represents and acknowledge acknowledges to the other that, subject to the proviso included in this SectionSection 9(v)(i), upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Convertible Notes is not consummated with the Underwriters initial purchasers for any reason, or if Counterparty fails to deliver to Dealer opinions reason by the close of counsel as required pursuant to Section 9(a), business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateJanuary 22, 2007 (or such later date as agreed upon by the parties parties) (the Premium Payment Date January 22, 2007 or such later date, date as agreed upon being the “Early Unwind Date”), the this 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 JPMorgan and Counterparty under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall purchase from JPMorgan on the Early Unwind Date all Shares purchased by JPMorgan or one of more of its affiliates and reimburse Dealer JPMorgan for any actual and reasonable costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position of Dealer or one or more of its affiliates in connection with the Transactionposition). The amount of any such reimbursement shall be determined by Dealer JPMorgan in its sole good faith discretion. Dealer JPMorgan shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer JPMorgan and Counterparty represent and acknowledge to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

Early Unwind. (i) In the event the sale of the “Underwritten Securities” (as defined in the Underwriting Agreement) Exchangeable Notes is not consummated with the Underwriters initial purchasers for any reason, reason or if Counterparty fails to deliver to Dealer JPMorgan opinions of counsel to Counterparty as required pursuant to Section 9(a), ) by the close of business in each case by 5:00 p.m. (New York City time) on the Premium Payment DateApril 4, 2007 (or such later date as agreed upon by the parties parties) (the Premium Payment Date April 4, 2007 or such later date, date as agreed upon being the “Early Unwind Date”), the this 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 JPMorgan, Counterparty and Counterparty Parent under the Transaction shall be cancelled and terminated and (ii) 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 the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall reimburse Dealer JPMorgan for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position position) if the failure to consummate such transactions is the result of Dealer Counterparty’s or one or more Parent’s breach of its affiliates in connection with the Transaction)Purchase Agreement. The amount of any such reimbursement shall be determined by Dealer JPMorgan in its sole reasonable good faith discretion. Dealer JPMorgan shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Each of Dealer JPMorgan and Counterparty represent represents and acknowledge acknowledges to the other that, subject to the proviso included in this Sectionparagraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.