Common use of Agreements and Acknowledgments Regarding Shares Clause in Contracts

Agreements and Acknowledgments Regarding Shares. Counterparty agrees and acknowledges that Dealer will sell (or cause its affiliates to sell) (and, to the extent any Block Underwriter (as defined in the Registration Agreement) is not an affiliate of the Dealer, that such Block Underwriter with respect to the Shares sold to the Block Underwriter by Dealer pursuant to the Registration Agreement and with respect to any Additional Securities sold by the Block Underwriter on behalf of Dealer pursuant to the Registration Agreement will sell), pursuant to a registration statement in the manner contemplated by the Registration Agreement, a number of Collateral Shares, Shares borrowed from Counterparty or third parties or other Shares equal to the Number of Transaction Shares (after giving effect to any reduction pursuant to Section 3(b)(ii) above), and each of Dealer and Counterparty currently believes that the Shares (up to the Number of Transaction Shares) delivered by Counterparty to Dealer pursuant to the Transaction may be used by Dealer to settle such sales or close out open Share borrowings created in the course of Dealer’s hedging activities related to its exposure under the Transaction without further registration under the U.S. Securities Act of 1933, as amended (the “Securities Act”) and, to the extent such open Share borrowings have been established through Rehypothecation and such Rehypothecation has not been revoked by Counterparty, Dealer may close such open borrowings of Shares by netting its return obligation with respect to up to the Number of Transaction Shares against Counterparty’s Share delivery obligation hereunder.

Agreements and Acknowledgments Regarding Shares. (i) Counterparty agrees and acknowledges that, in respect of any Shares delivered to Dealer hereunder, such Shares shall be newly issued (unless mutually agreed otherwise by the parties) and, upon such delivery, duly and validly authorized, issued and outstanding, fully paid and nonassessable, free of any lien, charge, claim or other encumbrance and not subject to any preemptive or similar rights and shall, upon such issuance, be accepted for listing or quotation on the Exchange. (ii) Counterparty agrees and acknowledges that Dealer will sell (or cause its affiliates to sell) (and, to the extent any Block Underwriter (as defined in the Registration Agreement) is not an affiliate of the Dealer, that such Block Underwriter with respect ) will hedge its exposure to the this Transaction by selling Shares sold to the Block Underwriter by Dealer pursuant to the Registration Agreement and with respect to any Additional Securities sold by the Block Underwriter on behalf of Dealer pursuant to the Registration Agreement will sell), borrowed from third party securities lenders or other Shares pursuant to a registration statement in the manner contemplated by the Registration Agreementstatement, a number of Collateral Sharesand that, Shares borrowed from Counterparty or third parties or other Shares equal pursuant to the Number terms of Transaction Shares (after giving effect to any reduction pursuant to Section 3(b)(ii) above)the Interpretive Letter, and each of Dealer and Counterparty currently believes that the Shares (up to the Initial Number of Transaction Shares) delivered delivered, pledged or loaned by Counterparty to Dealer pursuant to the (or an affiliate of Dealer) in connection with this Transaction may be used by Dealer (or an affiliate of Dealer) to settle return to securities lenders without further registration or other restrictions under the Securities Act, in the hands of those securities lenders, irrespective of whether such sales securities loan is effected by Dealer or an affiliate of Dealer. Accordingly, subject to Section 7(g) below, Counterparty agrees that the Shares that it delivers, pledges or loans to Dealer (or an affiliate of Dealer) on or prior to the final Settlement Date will not bear a restrictive legend and that such Shares will be deposited in, and the delivery thereof shall be effected through the facilities of, the Clearance System. (iii) Counterparty agrees and acknowledges that it has reserved and will keep available at all times, free from preemptive or similar rights and free from any lien, charge, claim or other encumbrance, authorized but unissued Shares at least equal to the Share Cap, solely for the purpose of settlement under this Transaction. (iv) Unless the provisions set forth below under “Private Placement Procedures” are applicable, Dealer agrees to use any Shares delivered by Counterparty hereunder on any Settlement Date to return to securities lenders to close out open Share borrowings securities loans created by Dealer or an affiliate of Dealer in the course of Dealer’s or such affiliate’s hedging activities related to its Dealer’s exposure under this Transaction. (v) In connection with bids and purchases of Shares in connection with any Cash Settlement or Net Share Settlement of this Transaction, Dealer shall use its reasonable efforts, based on the Transaction without further registration advice of counsel, to conduct its activities, or cause its affiliates to conduct their activities, in a manner consistent with the requirements of the safe harbor provided by Rule 10b-18 under the U.S. Securities Act of 1933Exchange Act, as amended if such provisions were applicable to such purchases. (the “Securities Act”) and, to the extent such open Share borrowings have been established through Rehypothecation and such Rehypothecation has not been revoked by Counterparty, Dealer may close such open borrowings of Shares by netting its return obligation with respect to up to the Number of Transaction Shares against Counterparty’s Share delivery obligation hereunder.d)

Agreements and Acknowledgments Regarding Shares. Counterparty CONE agrees and acknowledges that, in respect of any Shares delivered to Dealer hereunder, such Shares shall be newly issued (unless mutually agreed otherwise by the parties) and, upon such delivery, duly and validly authorized, issued and outstanding, fully paid and nonassessable, free of any lien, charge, claim or other encumbrance and not subject to any preemptive or similar rights and shall, upon such issuance, be accepted for listing or quotation on the Exchange, subject to notice of issuance and Section 8 below. CONE agrees and acknowledges that Dealer will sell (or cause its affiliates to sell) (and, to the extent any Block Underwriter (as defined in the Registration Agreement) is not an affiliate of the Dealer, that such Block Underwriter with respect ) will hedge its exposure to the this Transaction by selling Shares sold to the Block Underwriter by Dealer pursuant to the Registration Agreement and with respect to any Additional Securities sold by the Block Underwriter on behalf of Dealer pursuant to the Registration Agreement will sell), borrowed from securities lenders pursuant to a registration statement in the manner contemplated by the Registration Agreementand that, a number of Collateral Shares, Shares borrowed from Counterparty or third parties or other Shares equal pursuant to the Number terms of Transaction Shares (after giving effect to any reduction pursuant to Section 3(b)(ii) above)the Interpretive Letter, and each of Dealer and Counterparty currently believes that the Shares (up to the Initial Number of Transaction Shares) delivered by Counterparty CONE to Dealer pursuant to the (or an affiliate of Dealer) in connection with this Transaction may be used by Dealer (or an affiliate of Dealer) to settle return to securities lenders without further registration or other restrictions under the Securities Act, in the hands of those securities lenders, irrespective of whether such sales securities loan is effected by Dealer or an affiliate of Dealer. Accordingly, subject to Section 8 below, CONE agrees that the Shares that it delivers, pledges or loans to Dealer (or an affiliate of Dealer) in connection with this Transaction will not bear a restrictive legend and that such Shares will be deposited in, and the delivery thereof shall be effected through the facilities of, the Clearance System. CONE agrees and acknowledges that it has reserved and will keep available at all times, free from preemptive or similar rights and free from any lien, charge, claim or other encumbrance, authorized but unissued Shares at least equal to the Share Cap, solely for the purpose of settlement under this Transaction. Unless the provisions set forth below under Section 8 are applicable, Dealer agrees to use any Shares delivered by CONE hereunder on any Settlement Date to return to securities lenders to close out open Share borrowings securities loans created by Dealer or an affiliate of Dealer in the course of Dealer’s or such affiliate’s hedging activities related to its Dealer’s exposure under this Transaction. The parties intend for this Transaction (taking into account purchases of Shares in connection with any Cash Settlement or Net Share Settlement) to comply with the Transaction without further registration under requirements of the U.S. Securities Exchange Act and for this Confirmation to constitute a binding contract or instruction satisfying the requirements of 193310b5-1(c)(1)(i)(A) and to be interpreted to comply with the requirements of Rule 10b5-1(c). CONE acknowledges that during any Unwind Period, as amended (the “Securities Act”) andCONE shall not have, and shall not attempt to the extent such open Share borrowings have been established through Rehypothecation and such Rehypothecation has not been revoked by Counterpartyexercise, Dealer may close such open borrowings any influence over how, when or whether to effect purchases of Shares by netting Dealer (or its return obligation affiliate) in connection with respect to up to the Number of Transaction Shares against Counterparty’s Share delivery obligation hereunderthis Confirmation.