by BofA (such value, the "Freely Tradeable Value"); provided that Issuer
may not make the election described in this clause (B) if, on the date of its
election, it has taken, or caused to be taken, any action that would make
unavailable either the exemption pursuant to Section 4(2) of the Securities Act
for the delivery by Issuer to BofA (or any affiliate designated by BofA) of the
Delivered Securities or the exemption pursuant to Section 4(1) or Section 4(3)
of the Securities Act for resales of the Delivered Securities by BofA (or any
such affiliate of BofA). (For the avoidance of doubt, as used in this paragraph
(b) only, the term "Issuer" shall mean the issuer of the relevant securities, as
the context shall require.)
(ii)
If Issuer makes the election described in clause (b)(i)(A) above:
(A)
BofA (or an Affiliate of BofA designated by BofA) shall be afforded a
reasonable opportunity to conduct a due diligence investigation with respect to
Issuer that is customary in scope for underwritten offerings of equity
securities and that yields results that are commercially reasonably satisfactory
to BofA or such Affiliate, as the case may be, in its discretion; and
(B)
BofA (or an Affiliate of BofA designated by BofA) and Issuer shall enter into an
agreement (a "Registration Agreement") on commercially reasonable terms in
connection with the public resale of such Delivered Securities by BofA or such
Affiliate substantially similar to underwriting agreements customary for
underwritten offerings of equity securities, in form and substance commercially
11
reasonably satisfactory to BofA or such Affiliate and Issuer, which
Registration Agreement shall include, without limitation, provisions
substantially similar to those contained in such underwriting agreements
relating to the indemnification of, and contribution in connection with the
liability of, BofA and its Affiliates and Issuer, shall provide for the payment
by Issuer of all reasonable expenses incurred thereby in connection with such
resale, including all registration costs and all reasonable fees and expenses of
counsel for BofA, and shall provide for the delivery of accountants' "comfort
letters" to BofA or such Affiliate with respect to the financial statements and
certain financial information contained in or incorporated by reference into the
Prospectus.
(iii)
If Issuer makes the election described in clause (b)(i)(B) above:
(A)
all Delivered Securities shall be delivered to BofA (or any Affiliate of
BofA designated by BofA) pursuant to the exemption from the registration
requirements of the Securities Act provided by Section 4(2) thereof;
(B)
BofA (or an Affiliate of BofA designated by BofA) and any potential
institutional purchaser of any such Delivered Securities from BofA or such
Affiliate identified by BofA shall be afforded a commercially reasonable
opportunity to conduct a due diligence investigation in compliance with
applicable law with respect to Issuer customary in scope for private placements
of equity securities (including, without limitation, the right to have made
available to them for inspection all financial and other records, pertinent
corporate documents and other information reasonably requested by them);
(C)
BofA