PROVIDED THE PARTY B WITH REASONABLE OPPORTUNITY TO SATISFY PARTY A'S CONCERNS;
(II) IN ORDER TO ALLOW PARTY A TO SELL THE HEDGE SHARES IN A PRIVATE PLACEMENT
ENTER INTO A PRIVATE PLACEMENT AGREEMENT SUBSTANTIALLY SIMILAR TO PRIVATE
PLACEMENT PURCHASE AGREEMENTS CUSTOMARY FOR PRIVATE PLACEMENTS OF EQUITY
SECURITIES OF COMPANIES OF COMPARABLE SIZE, MATURITY AND LINES OF BUSINESS, IN
FORM AND SUBSTANCE REASONABLY SATISFACTORY TO PARTY A, INCLUDING CUSTOMARY
REPRESENTATIONS, COVENANTS, BLUE SKY AND OTHER GOVERNMENTAL FILINGS AND/OR
REGISTRATIONS, INDEMNITIES TO PARTY A, DUE DILIGENCE RIGHTS (FOR PARTY A OR ANY
DESIGNATED BUYER OF THE HEDGE SHARES FROM PARTY A), OPINIONS AND CERTIFICATES
AND SUCH OTHER DOCUMENTATION AS IS CUSTOMARY FOR PRIVATE PLACEMENTS AGREEMENTS,
ALL REASONABLY ACCEPTABLE TO PARTY A (IN WHICH CASE, THE CALCULATION AGENT SHALL
MAKE ANY ADJUSTMENTS TO THE TERMS OF THE TRANSACTION THAT ARE NECESSARY, IN ITS
REASONABLE JUDGMENT, TO COMPENSATE PARTY A FOR ANY DISCOUNT FROM THE PUBLIC
MARKET PRICE OF THE SHARES INCURRED ON THE SALE OF HEDGE SHARES IN A PRIVATE
PLACEMENT).
9.
ACCOUNT DETAILS:
Payments to Party A:
To be advised
Payments to Party B:
To be advised
Deliveries to Party B:
To be advised
10.
WAIVER OF JURY TRIAL.
EACH OF PARTY B AND PARTY A HEREBY
IRREVOCABLY WAIVES (ON ITS OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, ON BEHALF OF ITS STOCKHOLDERS) ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THE TRANSACTION OR THE ACTIONS OF PARTY B OF ITS
AFFILIATES OR PARTY A OR ITS AFFILIATES IN THE NEGOTIATION, PERFORMANCE OR
ENFORCEMENT HEREOF
11.
GOVERNING LAW.
THE AGREEMENT AND THIS CONFIRMATION SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
THE PARTIES HERETO IRREVOCABLY
SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND
THE UNITED STATES COURT FOR THE SOUTHERN DISTRICT OF NEW YORK IN CONNECTION WITH
ALL MATTERS RELATING HERETO AND WAIVE ANY OBJECTION TO THE LAYING OF VENUE IN,
AND ANY CLAIM OF INCONVENIENT FORUM WITH RESPECT TO, THESE COURTS.
12.
SPECIAL PROVISIONS FOR COUNTERPARTY PAYMENTS:
THE PARTIES HEREBY
AGREE THAT, NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN OR IN THE AGREEMENT,
IN THE EVENT THAT AN EARLY TERMINATION DATE (WHETHER AS A RESULT OF AN EVENT OF
DEFAULT OR A TERMINATION EVENT) OCCURS OR IS DESIGNATED WITH RESPECT TO ANY
TRANSACTION AND, AS A RESULT, PARTY B OWES TO PARTY A AN AMOUNT CALCULATED UNDER
SECTION 6(E) OF THE AGREEMENT (CALCULATED AS IF THE TRANSACTIONS BEING
TERMINATED ON SUCH EARLY TERMINATION DATE WERE THE SOLE TRANSACTIONS UNDER THE
AGREEMENT), SUCH AMOUNT SHALL BE DEEMED TO BE ZERO.
49
Please confirm that the foregoing correctly sets forth the terms of your
agreement by signing and returning this Confirmation.
Very truly yours,
CAPITAL VENTURES INTERNATIONAL
BY: HEIGHTS CAPITAL MANAGEMENT, INC,
Its Authorized Agent
(Party A)
By:
/s/ Martin Kobinger
Name:
Martin Kobinger
Title:
Investment Manager
Confirmed as of the