Common use of Free-Writing Prospectus and Testing-the-Waters Clause in Contracts

Free-Writing Prospectus and Testing-the-Waters. 3.3.1 The Company represents and agrees that it has not made and will not make any offer relating to the Public Securities that would constitute an issuer free writing prospectus, as defined in Rule 433 under the Act, or that would otherwise constitute a “free writing prospectus” as defined in Rule 405, without the prior consent of the Representatives. The Company (a) has not engaged in any Testing-the-Waters Communication (as defined herein) other than Testing-the-Waters Communications with the consent of the Representatives with entities that are “qualified institutional buyers (as defined in Rule 144A under the Act) or institutions that are “accredited investors” (as defined in Rule 501 under the Act) and (b) has not authorized anyone other than the Underwriters to engage in Testing-the-Waters Communications. The Company reconfirms that the Underwriters have been authorized to act on its behalf in undertaking any Testing-the-Waters Communication. “