through Agent.
In addition, all
notices, demands and communications of any kind relating to the Transaction
between Dealer and Counterparty shall be transmitted exclusively through Agent
at the address indicated for communications to Dealer in Section 5 herein.
18.
NO COLLATERAL BY COUNTERPARTY.
NO COLLATERAL IS REQUIRED TO BE
POSTED BY COUNTERPARTY IN RESPECT OF THIS TRANSACTION.
19.
DISPOSITION OF HEDGE SHARES.
COUNTERPARTY HEREBY AGREES THAT IF AT
ANY TIME, IN THE REASONABLE JUDGMENT OF COUNSEL FOR THE DEALER, THE SHARES
ACQUIRED BY DEALER FOR THE PURPOSE OF HEDGING ITS OBLIGATIONS PURSUANT TO THE
TRANSACTION (OTHER THAN SUCH SHARES, IF ANY, THAT ARE, AT THE TIME OF SUCH
DETERMINATION, DUE TO BE DELIVERED TO COUNTERPARTY IN CONNECTION WITH A NET
SHARE SETTLEMENT OF THE TRANSACTION) (THE "HEDGE SHARES"), CANNOT BE SOLD IN THE
U.S. PUBLIC MARKET BY DEALER WITHOUT REGISTRATION UNDER THE SECURITIES ACT,
COUNTERPARTY SHALL, AT ITS ELECTION: (I) IN ORDER TO ALLOW DEALER TO SELL THE
HEDGE SHARES IN A REGISTERED OFFERING, USE ITS COMMERCIALLY REASONABLE EFFORTS
TO MAKE AVAILABLE TO DEALER AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT TO COVER THE RESALE OF SUCH HEDGE SHARES AND (A) ENTER INTO AN
AGREEMENT, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO DEALER,
SUBSTANTIALLY IN THE FORM OF AN UNDERWRITING AGREEMENT FOR A REGISTERED
OFFERING, (B) PROVIDE ACCOUNTANT'S "COMFORT" LETTERS IN CUSTOMARY FORM FOR
REGISTERED OFFERINGS OF EQUITY SECURITIES, (C) PROVIDE DISCLOSURE OPINIONS OF
NATIONALLY RECOGNIZED OUTSIDE COUNSEL TO COUNTERPARTY CUSTOMARY IN FORM FOR
REGISTERED OFFERINGS OF EQUITY SECURITIES, (D) PROVIDE OTHER CUSTOMARY OPINIONS,
CERTIFICATES AND CLOSING DOCUMENTS CUSTOMARY IN FORM FOR REGISTERED OFFERINGS OF
EQUITY SECURITIES AND (E) AFFORD DEALER A REASONABLE OPPORTUNITY TO CONDUCT A
"DUE DILIGENCE" INVESTIGATION WITH RESPECT TO COUNTERPARTY CUSTOMARY IN SCOPE
FOR
14
UNDERWRITTEN OFFERINGS OF EQUITY SECURITIES; PROVIDED, HOWEVER, THAT IF DEALER,
IN ITS REASONABLE DISCRETION, IS NOT SATISFIED WITH ACCESS TO DUE DILIGENCE
MATERIALS, THE RESULTS OF ITS DUE DILIGENCE INVESTIGATION, OR THE PROCEDURES AND
DOCUMENTATION FOR THE REGISTERED OFFERING REFERRED TO ABOVE, THEN CLAUSE (II) OR
CLAUSE (III) OF THIS SECTION 18 SHALL APPLY AT THE ELECTION OF COUNTERPARTY;
(II) IN ORDER TO ALLOW DEALER 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, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO DEALER, INCLUDING
CUSTOMARY REPRESENTATIONS, COVENANTS, BLUE SKY AND OTHER GOVERNMENTAL FILINGS
AND/OR REGISTRATIONS, INDEMNITIES TO DEALER, DUE DILIGENCE RIGHTS (FOR DEALER OR
ANY DESIGNATED BUYER OF THE HEDGE SHARES FROM DEALER), OPINIONS AND CERTIFICATES
AND SUCH OTHER DOCUMENTATION AS IS CUSTOMARY FOR PRIVATE PLACEMENTS AGREEMENTS,
ALL REASONABLY ACCEPTABLE TO DEALER (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 DEALER FOR ANY DISCOUNT FROM THE PUBLIC
MARKET PRICE OF THE SHARES INCURRED ON THE SALE OF HEDGE SHARES IN A PRIVATE
PLACEMENT); OR (III) PURCHASE THE HEDGE SHARES FROM DEALER AT THE