Common use of Establishing the Terms of Sale Clause in Contracts

Establishing the Terms of Sale. Buyer shall determine the Upfront Proceeds, the Payment Date, the Base Amount, the Initial Share Price, the Floor Level, the Cap Level and the Maturity Date (collectively, the “Terms of Sale”) based on the amounts and prices at which and dates on which it effects short sales (the “Initial Short Sales”) of shares of Common Stock in establishing Buyer’s Initial Short Position (the dates on which such short sales are effected being collectively referred to as the “Hedging Period”) and otherwise in accordance with the respective formulas for such Terms of Sale set forth below; provided that, if at any time after the date hereof Seller becomes aware of any material non-public information regarding the Company, Seller shall immediately notify Buyer that it cannot make the representation and warranty set forth in Section 3.1(k) and shall direct Buyer immediately to cease effecting any further hedging activities related to the Common Stock including, without limitation, the Initial Short Sales.