Common use of Payment Shares Clause in Contracts

Payment Shares. (a) The Company may only deliver Registered Payment Shares pursuant to Section 5(a)(ii) subject to satisfaction of the following conditions: (i) a registration statement covering public resale of the Registered Payment Shares by the Seller (the “Registration Statement”) shall have been filed with, and declared effective by, the Securities and Exchange Commission under the Securities Act on or prior to the last Trading Day of the Averaging Period, and no stop order shall be in effect with respect to the Registration Statement; a printed prospectus relating to the Registered Payment Shares (including any prospectus supplement thereto, the “Prospectus”) shall have been delivered to the Seller, in such quantities as the Seller shall reasonably have requested, on or prior to the last Trading Day of the Averaging Period; (ii) the form and content of the Registration Statement and the Prospectus (including, without limitation, any sections describing the plan of distribution) shall be reasonably satisfactory to the Seller; (iii) the Seller and its agents, including BAS, shall have been afforded a reasonable opportunity to conduct a due diligence investigation with respect to the Company customary in scope for underwritten offerings of equity securities and the results of such investigation are satisfactory to the Seller, in its discretion; and (iv) as of the last Trading Day of the Averaging Period, an agreement (the “Transfer Agreement”) shall have been entered into with the Seller in connection with the public resale of the Registered Payment Shares by the Seller substantially similar to underwriting agreements customary for underwritten offerings of equity securities, in form and substance satisfactory to the Seller, which Transfer 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, the Seller and its affiliates. If the Settlement Amount is less than zero and the Company has elected to deliver Registered Payment Shares and any of the above conditions is not satisfied as of the last Trading Day of the Averaging Period, the Company shall, in lieu of delivery of Registered Payment Shares, make a cash payment to the Seller in immediately available funds in an amount equal to the absolute value of the Settlement Amount on the second Settlement Day following the end of the Averaging Period and shall reimburse the Seller for all reasonable out-of-pocket expenses it incurs in connection with due diligence and otherwise in connection with the anticipated delivery of the Registered Payment Shares, including, without limitation, the reasonable fees and expenses of outside counsel to the Seller incurred in connection thereof. (b) The Company may only deliver Restricted Payment Shares pursuant to Section 5(a)(ii) and Make-Whole Payment Shares pursuant to Section 5(c) subject to satisfaction of the following conditions: (i) all Restricted Payment Shares and Make-Whole Payment Shares shall be delivered to the Seller (or any affiliate of the Seller designated by the Seller) pursuant to the exemption from the registration requirements of the Securities Act provided by Section 4(2) thereof; (ii) BAS, the Seller and any potential purchaser of any such shares from the Seller (or any affiliate of the Seller designated by the Seller) identified by BAS or the Seller shall have been afforded a commercially reasonable opportunity to conduct a due diligence investigation with respect to the Company 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); and (iii) an agreement (a “Private Placement Agreement”) shall have been entered into between the Company and the Seller (or any affiliate of the Seller designated by the Seller) in connection with the private placement of such shares by the Company to the Seller (or any such affiliate) and the private resale of such shares by the Seller (or any such affiliate), substantially similar to private placement purchase agreements customary for private placements of equity securities, in form and substance commercially reasonably satisfactory to the Seller, which Private Placement Agreement shall include, without limitation, provisions substantially similar to those contained in such private placement purchase agreements relating to the indemnification of, and contribution in connection with the liability of, the Seller and its affiliates, and shall provide for the payment by the Company of all fees and expenses in connection with such resale, including all fees and expenses of counsel for the Seller, and shall contain representations, warranties and agreements of the Company reasonably necessary or advisable to establish and maintain the availability of an exemption from the registration requirements of the Securities Act for such resales. If the Settlement Amount is less than zero and the Company has elected to deliver Restricted Payment Shares and any of the above conditions is not satisfied as of the last Trading Day of the Averaging Period and on each date when any Make-Whole Payment Shares are to be delivered, the Company shall, in lieu of delivery of the Restricted Payment Shares or such Make-Whole Payment Shares, as the case may be, make a cash payment to the Seller in immediately available funds in an amount equal to the absolute value of the Settlement Amount or the then remaining Settlement Balance, as the case may be, in either case on the second Settlement Day following the date when such delivery would have otherwise been required and shall reimburse the Seller for all reasonable out-of-pocket expenses it incurs in connection with the anticipated delivery of the Restricted Payment Shares or the Make-Whole Payment Shares, including, without limitation, the reasonable fees and expenses of outside counsel to the Seller incurred in connection thereof. (c) Notwithstanding the provisions of Section 5(a) above, if the Company has elected to deliver any Payment Shares hereunder, the Company shall not be required to deliver more than the Maximum Deliverable Number of shares of Common Stock as Payment Shares hereunder.

Payment Shares. (a) The Company may only deliver Registered Payment Shares pursuant to Section 5(a)(ii) subject to satisfaction of the following conditions: (i) a registration statement covering public resale of the Registered Payment Shares by the Seller (the “Registration Statement”) shall have been filed with, and declared effective by, the Securities and Exchange Commission under the Securities Act on or prior to the last Trading Day of the Averaging Period, and no stop order shall be in effect with respect to the Registration Statement; a printed prospectus relating to the Registered Payment Shares (including any prospectus supplement thereto, the “Prospectus”) shall have been delivered to the Seller, in such quantities as the Seller shall reasonably have requested, on or prior to the last Trading Day of the Averaging Period; (ii) the form and content of the Registration Statement and the Prospectus (including, without limitation, any sections describing the plan of distribution) shall be reasonably satisfactory to the Seller; (iii) the Seller and its agents, including BAS, shall have been afforded a reasonable opportunity to conduct a due diligence investigation with respect to the Company customary in scope for underwritten offerings of equity securities and the results of such investigation are satisfactory to the Seller, in its discretion; and (iv) as of the last Trading Day of the Averaging Period, an agreement (the “Transfer Agreement”) shall have been entered into with the Seller in connection with the public resale of the Registered Payment Shares by the Seller substantially similar to underwriting agreements customary for underwritten offerings of equity securities, in form and substance satisfactory to the Seller, which Transfer 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, the Seller and its affiliates. If the Settlement Amount is less than zero and the Company has elected to deliver Registered Payment Shares and any of the above conditions is not satisfied as of the last Trading Day of the Averaging Period, the Company shall, in lieu of delivery of Registered Payment Shares, make a cash payment to the Seller in immediately available funds in an amount equal to the absolute value of the Settlement Amount on the second Settlement Day following the end of the Averaging Period and shall reimburse the Seller for all reasonable out-of-pocket expenses it incurs in connection with due diligence and otherwise in connection with the anticipated delivery of the Registered Payment Shares, including, without limitation, the reasonable fees and expenses of outside counsel to the Seller incurred in connection thereof. (b) The Company may only deliver Restricted Payment Shares pursuant to Section 5(a)(ii5(a)(ii)(A) and Make-Whole Payment Shares pursuant to Section 5(c) subject to satisfaction of the following conditions: (i) all Restricted Payment Shares and Make-Whole Payment Shares shall be delivered to the Seller (or any affiliate of the Seller designated by the Seller) pursuant to the exemption from the registration requirements of the Securities Act provided by Section 4(2) thereof; (ii) BAS, the Seller and any potential purchaser of any such shares from the Seller (or any affiliate of the Seller designated by the Seller) identified by BAS or the Seller shall have been afforded a commercially reasonable opportunity to conduct a due diligence investigation with respect to the Company 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); and (iii) an agreement (a “Private Placement Agreement”) shall have been entered into between the Company and the Seller (or any affiliate of the Seller designated by the Seller) in connection with the private placement of such shares by the Company to the Seller (or any such affiliate) and the private resale of such shares by the Seller (or any such affiliate), substantially similar to private placement purchase agreements customary for private placements of equity securities, in form and substance commercially reasonably satisfactory to the Seller, which Private Placement Agreement shall include, without limitation, provisions substantially similar to those contained in such private placement purchase agreements relating to the indemnification of, and contribution in connection with the liability of, the Seller and its affiliates, and shall provide for the payment by the Company of all fees and expenses incurred by the Company in connection with such resale and for the reimbursement, in the manner set forth in Section 5(c) above, (without duplication) of all fees and expenses incurred by the Seller in connection with such resale, including all fees and expenses of external counsel for the Seller (all such fees and expenses incurred by the Seller, the “Private Placement Costs”), and shall contain representations, warranties and agreements of the Company reasonably necessary or advisable to establish and maintain the availability of an exemption from the registration requirements of the Securities Act for such resales. If the Settlement Amount is less than zero and the Company has elected to deliver Restricted Payment Shares and any of the above conditions is not satisfied as of the last Trading Day of the Averaging Period and on each date when any Make-Whole Payment Shares are to be delivered, the Company shall, in lieu of delivery of the Restricted Payment Shares or such Make-Whole Payment Shares, as the case may be, make a cash payment to the Seller in immediately available funds in an amount equal to the absolute value of the Settlement Amount or the then remaining Settlement Balance, as the case may be, in either case on the second Settlement Day following the date when such delivery would have otherwise been required and shall reimburse the Seller for all reasonable out-of-pocket expenses it incurs in connection with the anticipated delivery of the Restricted Payment Shares or the Make-Whole Payment Shares, including, without limitation, the reasonable fees and expenses of outside counsel to the Seller incurred in connection thereof. (b) If the Company elects to deliver Restricted Payment Shares pursuant to Section 5(a)(ii)(A) above, the Company shall not take or cause to be taken any action that would make unavailable either (i) the exemption set forth in Section 4(2) of the Securities Act for the sale of any Restricted Payment Shares or Make-Whole Payment Shares by the Company to the Seller or (ii) an exemption from the registration requirements of the Securities Act reasonably acceptable to the Seller for resales of Restricted Payment Shares and Make-Whole Payment Shares by the Seller. (c) If the Settlement Amount is less than zero and the Company elects to deliver Restricted Payment Shares pursuant to Section 5(a)(ii)(A), then, if necessary, the Company shall use its best efforts to cause the number of authorized but unissued shares of Common Stock to be increased to an amount sufficient to permit the Company to fulfill its obligations under Section 5 above. (d) The Company expressly agrees and acknowledges that the public disclosure of all material information relating to the Company is within the Company’s control. (e) Notwithstanding the provisions of Section 5(a) above, if the Company has elected to deliver any Payment Shares hereunder, the Company shall not be required to deliver more than the Maximum Deliverable Number of shares of Common Stock as Payment Shares hereunder.

Payment Shares. (a) The Company may only deliver Registered Payment Shares pursuant to Section 5(a)(ii) subject to satisfaction of the following conditions: (i) a registration statement covering public resale of the Registered Payment Shares by the Seller (the “Registration Statement”) shall have been filed with, and declared effective by, the Securities and Exchange Commission under the Securities Act on or prior to the last Trading Day of the Averaging Period, and no stop order shall be in effect with respect to the Registration Statement; a printed prospectus relating to the Registered Payment Shares (including any prospectus supplement thereto, the “Prospectus”) shall have been delivered to the Seller, in such quantities as the Seller shall reasonably have requested, on or prior to the last Trading Day of the Averaging Period; (ii) the form and content of the Registration Statement and the Prospectus (including, without limitation, any sections describing the plan of distribution) shall be reasonably satisfactory to the Seller; (iii) the Seller and its agents, including BAS, shall have been afforded a reasonable opportunity to conduct a due diligence investigation with respect to the Company customary in scope for underwritten offerings of equity securities and the results of such investigation are satisfactory to the Seller, in its discretion; and (iv) as of the last Trading Day of the Averaging Period, an agreement (the “Transfer Agreement”) shall have been entered into with the Seller in connection with the public resale of the Registered Payment Shares by the Seller substantially similar to underwriting agreements customary for underwritten offerings of equity securities, in form and substance satisfactory to the Seller, which Transfer 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, the Seller and its affiliates. If the Settlement Amount is less than zero and the Company has elected to deliver Registered Payment Shares and any of the above conditions is not satisfied as of the last Trading Day of the Averaging Period, the Company shall, in lieu of delivery of Registered Payment Shares, make a cash payment to the Seller in immediately available funds in an amount equal to the absolute value of the Settlement Amount on the second Settlement Day following the end of the Averaging Period and shall reimburse the Seller for all reasonable out-of-pocket expenses it incurs in connection with due diligence and otherwise in connection with the anticipated delivery of the Registered Payment Shares, including, without limitation, the reasonable fees and expenses of outside counsel to the Seller incurred in connection thereof. (b) The Company may only deliver Restricted Payment Shares pursuant to Section 5(a)(ii5(a)(ii)(A) and Make-Whole Payment Shares pursuant to Section 5(c) subject to satisfaction of the following conditions: (i) all Restricted Payment Shares and Make-Whole Payment Shares shall be delivered to the Seller (or any affiliate of the Seller designated by the Seller) pursuant to the exemption from the registration requirements of the Securities Act provided by Section 4(2) thereof; (ii) BAS, the Seller and any potential purchaser of any such shares from the Seller (or any affiliate of the Seller designated by the Seller) identified by BAS or the Seller shall have been afforded a commercially reasonable opportunity to conduct a due diligence investigation with respect to the Company 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); and (iii) an agreement (a “Private Placement Agreement”) shall have been entered into between the Company and the Seller (or any affiliate of the Seller designated by the Seller) in connection with the private placement of such shares by the Company to the Seller (or any such affiliate) and the private resale of such shares by the Seller (or any such affiliate), substantially similar to private placement purchase agreements customary for private placements of equity securities, in form and substance commercially reasonably satisfactory to the Seller, which Private Placement Agreement shall include, without limitation, provisions substantially similar to those contained in such private placement purchase agreements relating to the indemnification of, and contribution in connection with the liability of, the Seller and its affiliates, and shall provide for the payment by the Company of all fees and expenses in connection with such resale, including all fees and expenses of counsel for the Seller, and shall contain representations, warranties and agreements of the Company reasonably necessary or advisable to establish and maintain the availability of an exemption from the registration requirements of the Securities Act for such resales. If the Settlement Amount is less than zero and the Company has elected to deliver Restricted Payment Shares and any of the above conditions is not satisfied as of the last Trading Day of the Averaging Period and on each date when any Make-Whole Payment Shares are to be delivered, the Company shall, in lieu of delivery of the Restricted Payment Shares or such Make-Whole Payment Shares, as the case may be, make a cash payment to the Seller in immediately available funds in an amount equal to the absolute value of the Settlement Amount or the then remaining Settlement Balance, as the case may be, in either case on the second Settlement Day following the date when such delivery would have otherwise been required and shall reimburse the Seller for all reasonable out-of-pocket expenses it incurs in connection with the anticipated delivery of the Restricted Payment Shares or the Make-Whole Payment Shares, including, without limitation, the reasonable fees and expenses of outside counsel to the Seller incurred in connection thereof. (b) If the Company elects to deliver Restricted Payment Shares pursuant to Section 5(a)(ii)(A) above, the Company shall not take or cause to be taken any action that would make unavailable either (i) the exemption set forth in Section 4(2) of the Securities Act for the sale of any Restricted Payment Shares or Make-Whole Payment Shares by the Company to the Seller or (ii) an exemption from the registration requirements of the Securities Act reasonably acceptable to the Seller for resales of Restricted Payment Shares and Make-Whole Payment Shares by the Seller. (c) If the Settlement Amount is less than zero and the Company elects to deliver Restricted Payment Shares pursuant to Section 5(a)(ii)(A), then, if necessary, the Company shall use its best efforts to cause the number of authorized but unissued shares of Common Stock to be increased to an amount sufficient to permit the Company to fulfill its obligations under Section 5 above. (d) The Company expressly agrees and acknowledges that the public disclosure of all material information relating to the Company is within the Company’s control. (e) Notwithstanding the provisions of Section 5(a) above, if the Company has elected to deliver any Payment Shares hereunder, the Company shall not be required to deliver more than the Maximum Deliverable Number of shares of Common Stock as Payment Shares hereunder.

Payment Shares. (a) The Company may only deliver Registered Such Seller acknowledges and recognizes, and covenants and agrees with the Buyer that, he is acquiring the Payment Shares for his own respective account, and such Seller covenants and agrees that it will not sell, transfer, or otherwise dispose of any of the Payment Shares or any interest therein, except pursuant to Section 5(a)(ii) subject the Registration Statement or any prospectus supplement to satisfaction the prospectus that is a part of the following conditions: (i) a registration statement covering public resale of the Registered Payment Shares by the Seller (the “Registration Statement”) shall have been filed with, and declared Statement or any post-effective by, the Securities and Exchange Commission under the Securities Act on or prior to the last Trading Day of the Averaging Period, and no stop order shall be in effect with respect amendment to the Registration Statement; a printed prospectus relating to the Registered Payment Shares (including any prospectus supplement thereto, the “Prospectus”) shall have been delivered to the Seller, in such quantities as the Seller shall reasonably have requested, on or prior to the last Trading Day of the Averaging Period; (ii) the form and content of the Registration Statement and the Prospectus (including, without limitation, any sections describing the plan of distribution) shall be reasonably satisfactory to the Seller; (iii) the Seller and its agents, including BAS, shall have been afforded a reasonable opportunity to conduct a due diligence investigation with respect to the Company customary in scope for underwritten offerings of equity securities and the results of such investigation are satisfactory to the Seller, in its discretion; and (iv) as of the last Trading Day of the Averaging Period, an agreement (the “Transfer Agreement”) shall have been entered into with the Seller in connection with the public resale of the Registered Payment Shares by the Seller substantially similar to underwriting agreements customary for underwritten offerings of equity securities, in form and substance satisfactory to the Seller, which Transfer 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, the Seller and its affiliates. If the Settlement Amount is less than zero and the Company has elected to deliver Registered Payment Shares and any of the above conditions is not satisfied as of the last Trading Day of the Averaging Period, the Company shall, in lieu of delivery of Registered Payment Shares, make a cash payment to the Seller in immediately available funds in an amount equal to the absolute value of the Settlement Amount on the second Settlement Day following the end of the Averaging Period and shall reimburse the Seller for all reasonable out-of-pocket expenses it incurs in connection with due diligence and otherwise in connection with the anticipated delivery of the Registered Payment Shares, including, without limitation, the reasonable fees and expenses of outside counsel to the Seller incurred in connection thereof. (b) The Company may only deliver Restricted Payment Shares pursuant to Section 5(a)(ii) and Make-Whole Payment Shares pursuant to Section 5(c) subject to satisfaction of the following conditions: (i) all Restricted Payment Shares and Make-Whole Payment Shares shall be delivered to the Seller (or any affiliate of the Seller designated by the Seller) pursuant to the exemption from the registration requirements of the Securities Act provided by Section 4(2) thereof; (ii) BAS, the Seller and any potential purchaser of any such shares from the Seller (or any affiliate of the Seller designated by the Seller) identified by BAS or the Seller shall have been afforded a commercially reasonable opportunity to conduct a due diligence investigation with respect to the Company 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); and (iii) an agreement (a “Private Placement Agreement”) shall have been entered into between the Company and the Seller (or any affiliate of the Seller designated by the Seller) in connection with the private placement of such shares by the Company to the Seller (or any such affiliate) and the private resale of such shares by the Seller (or any such affiliate), substantially similar to private placement purchase agreements customary for private placements of equity securities, in form and substance commercially reasonably satisfactory to the Seller, which Private Placement Agreement shall include, without limitation, provisions substantially similar to those contained in such private placement purchase agreements relating to the indemnification of, and contribution in connection with the liability of, the Seller and its affiliates, and shall provide for the payment by the Company of all fees and expenses in connection with such resale, including all fees and expenses of counsel for the Seller, and shall contain representations, warranties and agreements of the Company reasonably necessary or advisable to establish and maintain the availability of an exemption from the registration requirements of the Securities Act for such resales. If the Settlement Amount is less than zero and the Company has elected to deliver Restricted Payment Shares and any of the above conditions is not satisfied as of the last Trading Day of the Averaging Period and on each date when any Make-Whole Payment Shares are to be delivered, the Company shall, in lieu of delivery of the Restricted Payment Shares or such Make-Whole Payment Shares, as the case may be, make and applicable state “blue sky” laws, or in a cash payment transaction which in the opinion of counsel reasonably acceptable to Parent is exempt therefrom. (b) Such Seller further acknowledges that it has received a copy of the prospectus that is a part of the Registration Statement, and that, as of the Closing Date or, if earlier, the date that Sellers vote or act by written consent, in their capacity as shareholders of the Company, to approve the transactions contemplated by this Agreement, had held a copy of the prospectus that is a part of the Registration Statement for at least twenty (20) Business Days, and confirms, covenants and agrees that such Seller has the knowledge and experience in financial and business matters as to be capable of evaluating the merits and risk of an investment in the Payment Shares, and confirms, covenants and agrees that such Seller has obtained, in its judgment, sufficient information from Parent and/or Buyer to evaluate the merits and risks of an investment in the Payment Shares. Such Seller acknowledges and agrees that it has been provided the opportunity to obtain information and documents concerning the Parent and the Payment Shares, and has been given the opportunity to ask questions of, and receive answers from, the Parent’s directors and officers concerning Parent and the Payment Shares and other matters related to this investment. Such Seller acknowledges and agrees that it is aware of the risks inherent in an investment in the Parent and specifically the risks of an investment in the Payment Shares. In addition, such Seller is aware and acknowledges that there can be no assurance of the future viability or profitability of the Parent, nor can there be any assurance relating to the Seller in immediately available funds in an amount equal to the absolute current or future price or value of the Settlement Amount or the then remaining Settlement Balance, as the case may be, in either case on the second Settlement Day following the date when such delivery would have otherwise been required and shall reimburse the Seller for all reasonable out-of-pocket expenses it incurs in connection with the anticipated delivery of the Restricted Payment Shares or the Make-Whole Payment Shares, including, without limitation, the reasonable fees and expenses of outside counsel to the Seller incurred in connection thereofor market conditions generally. (c) Notwithstanding Such Seller acknowledges and agrees that the provisions of Section 5(a) above, if the Company has elected to deliver any Payment Shares hereunderto be issued to the Sellers pursuant to this Agreement shall be subject to the transfer restrictions set forth in the Lock-up Agreement and that each certificate representing the Payment Shares, as well as all certificates issued in replacement, exchange for or in substitution of the Company shall not be required to deliver more than the Maximum Deliverable Number of shares of Common Stock as Payment Shares hereunder.shall bear a legend to the following effect:

Payment Shares. (a) The Company may only deliver Registered Payment Shares pursuant to Section 5(a)(ii) subject to satisfaction of the following conditions: (i) a registration statement covering public resale of the Registered Payment Shares by the Seller (the “Registration Statement”) shall have been filed with, and declared effective by, the Securities and Exchange Commission under the Securities Act on or prior to the last Trading Day of the Averaging Period, and no stop order shall be in effect with respect to the Registration Statement; a printed prospectus relating to the Registered Payment Shares (including any prospectus supplement thereto, the “Prospectus”) shall have been delivered to the Seller, in such quantities as the Seller shall reasonably have requested, on or prior to the last Trading Day of the Averaging Period; (ii) the form and content of the Registration Statement and the Prospectus (including, without limitation, any sections describing the plan of distribution) shall be reasonably satisfactory to the Seller; (iii) the Seller and its agents, including BAS, shall have been afforded a reasonable opportunity to conduct a due diligence investigation with respect to the Company customary in scope for underwritten offerings of equity securities and the results of such investigation are satisfactory to the Seller, in its discretion; and (iv) as of the last Trading Day of the Averaging Period, an agreement (the “Transfer Agreement”) shall have been entered into with the Seller in connection with the public resale of the Registered Payment Shares by the Seller substantially similar to underwriting agreements customary for underwritten offerings of equity securities, in form and substance satisfactory to the Seller, which Transfer 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, the Seller and its affiliates. If the Settlement Amount is less than zero and the Company has elected to deliver Registered Payment Shares and any of the above conditions is not satisfied as of the last Trading Day of the Averaging Period, the Company shall, in lieu of delivery of Registered Payment Shares, make a cash payment to the Seller in immediately available funds in an amount equal to the absolute value of the Settlement Amount on the second Settlement Day following the end of the Averaging Period and shall reimburse the Seller for all reasonable out-of-pocket expenses it incurs in connection with due diligence and otherwise in connection with the anticipated delivery of the Registered Payment Shares, including, without limitation, the reasonable fees and expenses of outside counsel to the Seller incurred in connection thereof. (b) The Company may only deliver Restricted Payment Shares pursuant to Section 5(a)(ii5(a)(ii)(A) and Make-Whole Payment Shares pursuant to Section 5(c) subject to satisfaction of the following conditions: (i) all Restricted Payment Shares and Make-Whole Payment Shares shall be delivered to the Seller (or any affiliate of the Seller designated by the Seller) pursuant to the exemption from the registration requirements of the Securities Act provided by Section 4(2) thereof; (ii) BAS, the Seller and any potential purchaser of any such shares from the Seller (or any affiliate of the Seller designated by the Seller) identified by BAS or the Seller shall have been afforded a commercially reasonable opportunity to conduct a due diligence investigation with respect to the Company 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); and (iii) an agreement (a “Private Placement Agreement”) shall have been entered into between the Company and the Seller (or any affiliate of the Seller designated by the Seller) in connection with the private placement of such shares by the Company to the Seller (or any such affiliate) and the private resale of such shares by the Seller (or any such affiliate), substantially similar to private placement purchase agreements customary for private placements of equity securities, in form and substance commercially reasonably satisfactory to the Seller, which Private Placement Agreement shall include, without limitation, provisions substantially similar to those contained in such private placement purchase agreements relating to the indemnification of, and contribution in connection with the liability of, the Seller and its affiliates, and shall provide for the payment by the Company of all reasonable out-of-pocket fees and expenses in connection with such resale, including all reasonable out-of-pocket fees and expenses of counsel for the Seller, and shall contain representations, warranties and agreements of the Company reasonably necessary or advisable to establish and maintain the availability of an exemption from the registration requirements of the Securities Act for such resales. For the avoidance of doubt, the Seller or an affiliate of the Seller designated by it will enter into a Private Placement Agreement with the Company on commercially reasonable terms. If the Settlement Amount is less than zero and the Company has elected to deliver Restricted Payment Shares and any of the above conditions is not satisfied as of the last Trading Day of the Averaging Period and on each date when any Make-Whole Payment Shares are to be delivered, the Company shall, in lieu of delivery of the Restricted Payment Shares or such Make-Whole Payment Shares, as the case may be, make a cash payment to the Seller in immediately available funds in an amount equal to the absolute value of the Settlement Amount or the then remaining Settlement Balance, as the case may be, in either case on the second Settlement Day following the date when such delivery would have otherwise been required and shall reimburse the Seller for all reasonable out-of-pocket expenses it incurs in connection with the anticipated delivery of the Restricted Payment Shares or the Make-Whole Payment Shares, including, without limitation, the reasonable fees and expenses of outside counsel to the Seller incurred in connection thereof. (b) If the Company elects to deliver Restricted Payment Shares pursuant to Section 5(a)(ii)(A) above, the Company shall not take or cause to be taken any action that would make unavailable either (i) the exemption set forth in Section 4(2) of the Securities Act for the sale of any Restricted Payment Shares or Make-Whole Payment Shares by the Company to the Seller or (ii) an exemption from the registration requirements of the Securities Act reasonably acceptable to the Seller for resales of Restricted Payment Shares and Make-Whole Payment Shares by the Seller. (c) If the Settlement Amount is less than zero and the Company elects to deliver Restricted Payment Shares pursuant to Section 5(a)(ii)(A), then, if necessary, the Company shall use its commercially reasonable efforts to cause the number of authorized but unissued shares of Common Stock to be increased to an amount sufficient to permit the Company to fulfill its obligations under Section 5 above. (d) The Company expressly agrees and acknowledges that the Company has the ability to disclose all material information relating to the Company. (e) Notwithstanding the provisions of Section 5(a) above, if the Company has elected to deliver any Payment Shares hereunder, the Company shall not be required to deliver more than the Maximum Deliverable Number of shares of Common Stock as Payment Shares hereunder.

Payment Shares. The following provisions are applicable if the Company elects to deliver Payment Shares pursuant to Sections V or XI of this Letter Agreement: (a) The Company may only deliver Registered Payment Shares pursuant agrees to Section 5(a)(iitake all actions within its control, including, without limitation, the procedures set forth in Annex A, to make available to Citigroup and its affiliates an effective registration statement under the Securities Act and one or more prospectuses as necessary to allow Citigroup and its affiliates to comply with the applicable prospectus delivery requirements (the “Prospectus”) subject to satisfaction for the resale by Citigroup and its affiliates of the following conditions: (i) a registration statement covering public resale shares of the Registered Payment Shares Common Stock delivered by the Seller Company hereunder (the “Registration Statement”), such Registration Statement to be effective and Prospectus to be current on each Trading Day in any Valuation Period and until all such resales by Citigroup (or its affiliates) shall have been filed withsettled. It is understood that the Registration Statement and Prospectus may cover a number of shares of Common Stock equal to all shares to be delivered by the Company hereunder. Citigroup shall provide, by a reasonable time in advance, such information regarding Citigroup and declared effective by, the Securities and Exchange Commission under the Securities Act on or prior to the last Trading Day of the Averaging Period, and no stop order its affiliates as shall be required to be included in effect the Prospectus. The Company shall pay the applicable registration fee and all costs in connection with respect to the Registration Statement; a printed prospectus relating to the Registered Payment Shares (including any prospectus supplement thereto, the “Prospectus”) shall have been delivered to the Seller, in such quantities as the Seller shall reasonably have requested, on or prior to the last Trading Day of the Averaging Period; (ii) the form and content preparation of the Registration Statement and the Prospectus (including, without limitation, the cost of printing the Prospectus. In addition, the Company agrees to take all actions set forth in Annex B and otherwise to take such actions reasonably requested by Citigroup to facilitate the disposition of the Payment Shares. (b) The Company represents, on each day described in subsection (a), that each of its filings under the Securities Act, the Exchange Act or other applicable securities laws that are required to be filed have been filed and that, as of the date of this representation and as supplemented by any sections describing information provided by the plan Company to Citigroup in connection with sales on a private placement basis pursuant to subsection (e) below, there is no misstatement of distributionmaterial fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements therein not misleading. (c) The Company agrees to provide to Citigroup and its affiliates on (or, if requested by Citigroup, reasonably in advance of) the final Trading Day of the Pricing Period or other date the number of shares of Common Stock to be delivered is determined, opinions of counsel, comfort letters, officers’ certificates and such other documents as may be reasonably requested by Citigroup. The Company also agrees that Citigroup and its affiliates shall be entitled to perform such diligence as Citigroup may reasonably request in advance of such date and the results thereof must be reasonably satisfactory to Citigroup. The Company agrees to reimburse Citigroup for all reasonable out-of-pocket expenses it incurs in connection with such diligence and otherwise in connection with the Seller;preparation of the Registration Statement and Prospectus (or any offering document for sales on a private placement basis pursuant to subsection (e) below), including, without limitation, the reasonable fees and expenses of one outside counsel to Citigroup incurred in connection therewith. (iiid) the Seller and its agentsThe Company shall, including BAS, shall have been afforded a reasonable opportunity to conduct a due diligence investigation with respect prior to the Company customary in scope for underwritten offerings of equity securities and the results of such investigation are satisfactory to the Seller, in its discretion; and (iv) as start of the last Trading Day of the Averaging applicable Valuation Period, enter into an agreement (the “Transfer Agreement”) shall have been entered into with the Seller Citigroup in connection with the public resale of the Registered Payment Shares by the Seller Citigroup or its affiliates substantially similar to underwriting agreements customary for underwritten offerings entered into by the Company with respect to equity securities in which CGMI was a member of equity securities, in form and substance satisfactory to the Seller, which underwriting syndicate; the Transfer 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, the Seller Citigroup and its affiliates. . (e) If on any date during the Settlement Amount period referred to in subsection (a) the requirements of subsection (a), (c) or (d) are not satisfied (determined without regard to whether the cause is less than zero within the control of the Company) or the representations and warranties contained herein with respect to the Company has elected (including, without limitation, in subsection (b)) are not true and correct, (i) the Company shall immediately notify Citigroup thereof; (A) Citigroup shall be entitled to deliver Registered Payment Shares cease selling shares of Common Stock pursuant to the Registration Statement; and any (B) if the Registration Statement is not effective on such date or a stop order suspending the effectiveness of the above conditions is Registration Statement has been issued or proceedings for that purpose have been instituted or threatened, or if the representations and warranties contained in subsection (b) are not satisfied as true and correct, and in any such case the Company so requests, Citigroup shall cease selling shares of Common Stock pursuant to the last Trading Day Registration Statement; and (iii) if Citigroup ceases selling shares of the Averaging PeriodCommon Stock pursuant to clause (ii), the Company shall, in lieu at its election, (A) purchase from Citigroup any shares of delivery of Registered Payment Shares, make a cash payment Common Stock delivered to the Seller in immediately available funds in Citigroup hereunder that remain unsold for an amount in the aggregate that equals the difference between the absolute value of the Settlement Amount and any proceeds (net of brokerage costs) received by Citigroup (or an affiliate of Citigroup) from resales of shares of Common Stock delivered to Citigroup by the Company hereunder; or (B) direct Citigroup and its affiliates, in a commercially reasonable manner (or absent any such election by the Company, Citigroup and its affiliates shall be entitled) to sell Shares received from the Company hereunder as otherwise provided hereunder on a private placement basis in compliance with the Securities Act, and the rules and regulations of the Securities and Exchange Commission (the “SEC”) promulgated thereunder; provided that if clause (B) applies, the Company shall perform its obligations under subsection (c) and shall cause its representations in subsection (b) to be true and correct. If shares are so sold, the Company shall deliver, promptly upon request from Citigroup, the number of shares of Common Stock Citigroup determines in a commercially reasonable manner is adequate to realize aggregate actual proceeds (net of brokerage costs) equal to the absolute value of the applicable Settlement Amount on Amount, and the second Settlement Day following the end of the Averaging Period and shall reimburse the Seller for all reasonable out-of-pocket expenses it incurs in connection with due diligence and otherwise in connection with the anticipated delivery of the Registered Payment Shares, including, without limitation, the reasonable fees and expenses of outside counsel Company’s obligation to the Seller incurred in connection thereof. deliver Shares under this subsection (be) The Company may only deliver Restricted Payment Shares pursuant to Section 5(a)(ii) and Make-Whole Payment Shares pursuant to Section 5(c) subject to satisfaction of the following conditions: (i) all Restricted Payment Shares and Make-Whole Payment Shares shall be delivered a continuing one until Citigroup or its affiliates have received actual net proceeds equal to the Seller (or any affiliate of the Seller designated by the Seller) pursuant to the exemption from the registration requirements of the Securities Act provided by Section 4(2) thereof; (ii) BASsuch amount; provided, the Seller and any potential purchaser of any such shares from the Seller (or any affiliate of the Seller designated by the Seller) identified by BAS or the Seller however, that in no event shall have been afforded a commercially reasonable opportunity to conduct a due diligence investigation with respect to the Company 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); and (iii) an agreement (a “Private Placement Agreement”) shall have been entered into between the Company and the Seller (or any affiliate of the Seller designated by the Seller) in connection with the private placement of such shares by the Company to the Seller (or any such affiliate) and the private resale of such shares by the Seller (or any such affiliate), substantially similar to private placement purchase agreements customary for private placements of equity securities, in form and substance commercially reasonably satisfactory to the Seller, which Private Placement Agreement shall include, without limitation, provisions substantially similar to those contained in such private placement purchase agreements relating to the indemnification of, and contribution in connection with the liability of, the Seller and its affiliates, and shall provide for the payment by the Company of all fees and expenses in connection with such resale, including all fees and expenses of counsel for the Seller, and shall contain representations, warranties and agreements of the Company reasonably necessary or advisable to establish and maintain the availability of an exemption from the registration requirements of the Securities Act for such resales. If the Settlement Amount is less than zero and the Company has elected to deliver Restricted Payment Shares and any of the above conditions is not satisfied as of the last Trading Day of the Averaging Period and on each date when any Make-Whole Payment Shares are to be delivered, the Company shall, in lieu of delivery of the Restricted Payment Shares or such Make-Whole Payment Shares, as the case may be, make a cash payment to the Seller in immediately available funds in an amount equal to the absolute value of the Settlement Amount or the then remaining Settlement Balance, as the case may be, in either case on the second Settlement Day following the date when such delivery would have otherwise been required and shall reimburse the Seller for all reasonable out-of-pocket expenses it incurs in connection with the anticipated delivery of the Restricted Payment Shares or the Make-Whole Payment Shares, including, without limitation, the reasonable fees and expenses of outside counsel to the Seller incurred in connection thereof. (c) Notwithstanding the provisions of Section 5(a) above, if the Company has elected to deliver any Payment Shares hereunder, the Company shall not be required to deliver more than the Maximum Deliverable Number a number of shares of Common Stock as Payment Shares hereunderthat exceeds the Share Cap. Upon receipt of prior written consent of the Company (such consent not to be unreasonably withheld or delayed) Citigroup and its affiliates shall be entitled to disclose any material non-public information regarding the Company in their possession to prospective purchasers in such a private placement, provided that any such purchaser agrees with Citigroup to maintain such information on a confidential basis.

Payment Shares. (a) The Company may only deliver Registered Payment Shares pursuant to Section 5(a)(ii) subject to satisfaction of the following conditions: (i) a registration statement covering public resale of the Registered Payment Shares by the Seller (the “Registration Statement”) shall have been filed with, and declared effective by, the Securities and Exchange Commission under the Securities Act on or prior to the last Trading Day of the Averaging Period, and no stop order shall be in effect with respect to the Registration Statement; a printed prospectus relating to the Registered Payment Shares (including any prospectus supplement thereto, the “Prospectus”) shall have been delivered to the Seller, in such quantities as the Seller shall reasonably have requested, on or prior to the last Trading Day of the Averaging Period; (ii) the form and content of the Registration Statement and the Prospectus (including, without limitation, any sections describing the plan of distribution) shall be reasonably satisfactory to the Seller; (iii) the Seller and its agents, including BAS, shall have been afforded a reasonable opportunity to conduct a due diligence investigation with respect to the Company customary in scope for underwritten offerings of equity securities and the results of such investigation are satisfactory to the Seller, in its discretion; and (iv) as of the last Trading Day of the Averaging Period, an agreement (the “Transfer Agreement”) shall have been entered into with the Seller in connection with the public resale of the Registered Payment Shares by the Seller substantially similar to underwriting agreements customary for underwritten offerings of equity securities, in form and substance satisfactory to the Seller, which Transfer 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, the Seller and its affiliates. If the Settlement Amount is less than zero and the Company has elected to deliver Registered Payment Shares and any of the above conditions is not satisfied as of the last Trading Day of the Averaging Period, the Company shall, in lieu of delivery of Registered Payment Shares, make a cash payment to the Seller in immediately available funds in an amount equal to the absolute value of the Settlement Amount on the second Settlement Day following the end of the Averaging Period and shall reimburse the Seller for all reasonable out-of-pocket expenses it incurs in connection with due diligence and otherwise in connection with the anticipated delivery of the Registered Payment Shares, including, without limitation, the reasonable fees and expenses of outside counsel to the Seller incurred in connection thereof. (b) The Company may only deliver Restricted Payment Shares pursuant to Section 5(a)(ii5(a)(ii)(A) and Make-Whole Payment Shares pursuant to Section 5(c) subject to satisfaction of the following conditions: (i) all Restricted Payment Shares and Make-Whole Payment Shares shall be delivered to the Seller (or any affiliate of the Seller designated by the Seller) pursuant to the exemption from the registration requirements of the Securities Act provided by Section 4(2) thereof; (ii) BAS, the Seller and any potential purchaser of any such shares from the Seller (or any affiliate of the Seller designated by the Seller) identified by BAS or the Seller shall have been afforded a commercially reasonable opportunity to conduct a due diligence investigation with respect to the Company customary in scope for private placements of equity securities (including, without limitation, the right to have made available to them for inspection all relevant financial and other records, pertinent corporate documents and other information reasonably requested by them); and (iii) an agreement (a “Private Placement Agreement”) shall have been entered into between the Company and the Seller (or any affiliate of the Seller designated by the Seller) in connection with the private placement of such shares by the Company to the Seller (or any such affiliate) and the private resale of such shares by the Seller (or any such affiliate), substantially similar to private placement purchase agreements customary for private placements of equity securities, in form and substance commercially reasonably satisfactory to the Seller, which Private Placement Agreement shall include, without limitation, provisions substantially similar to those contained in such private placement purchase agreements relating to the indemnification of, and contribution in connection with the liability of, the Seller and its affiliates, and shall provide for the payment by the Company of all fees and expenses in connection with such resale, including all fees and expenses of counsel for the Seller, and shall contain representations, warranties and agreements of the Company reasonably necessary or advisable to establish and maintain the availability of an exemption from the registration requirements of the Securities Act for such resales. If the Settlement Amount is less than zero and the Company has elected to deliver Restricted Payment Shares and any of the above conditions is not satisfied as of the last Trading Day of the Averaging Period and on each date when any Make-Whole Payment Shares are to be delivered, the Company shall, in lieu of delivery of the Restricted Payment Shares or such Make-Whole Payment Shares, as the case may be, make a cash payment to the Seller in immediately available funds in an amount equal to the absolute value of the Settlement Amount or the then remaining Settlement Balance, as the case may be, in either case on the second Settlement Day following the date when such delivery would have otherwise been required and shall reimburse the Seller for all reasonable out-of-pocket expenses it incurs in connection with the anticipated delivery of the Restricted Payment Shares or the Make-Whole Payment Shares, including, without limitation, the reasonable fees and expenses of outside counsel to the Seller incurred in connection thereof. (b) If the Company elects to deliver Restricted Payment Shares pursuant to Section 5(a)(ii)(A) above, the Company shall not take or cause to be taken any action that would make unavailable either (i) the exemption set forth in Section 4(2) of the Securities Act for the sale of any Restricted Payment Shares or Make-Whole Payment Shares by the Company to the Seller or (ii) an exemption from the registration requirements of the Securities Act reasonably acceptable to the Seller for resales of Restricted Payment Shares and Make-Whole Payment Shares by the Seller. (c) If the Settlement Amount is less than zero and the Company elects to deliver Restricted Payment Shares pursuant to Section 5(a)(ii)(A), then, if necessary, the Company shall use its best efforts to cause the number of authorized but unissued shares of Common Stock to be increased to an amount sufficient to permit the Company to fulfill its obligations under Section 5 above. (d) The Company expressly agrees and acknowledges that the public disclosure of all material information relating to the Company is within the Company’s control. (e) Notwithstanding the provisions of Section 5(a) above, if the Company has elected to deliver any Payment Shares hereunder, the Company shall not be required to deliver more than the Maximum Deliverable Number of shares of Common Stock as Payment Shares hereunder.

Payment Shares. (a) The Company may only deliver Registered Payment Shares pursuant to Section 5(a)(ii5(a)(ii)(A) subject to satisfaction of the following conditions: (i) a registration statement covering public resale of the Registered Payment Shares by the Seller and complying with the requirements of the Securities Act (the “Registration Statement”) shall have been filed with, and declared effective by, with the Securities and Exchange Commission under the Securities Act and shall have become effective on or prior to the last Trading Day of the Averaging PeriodPurchase Completion Date, and no stop order shall be in effect with respect to the Registration Statement; a printed prospectus relating to the Registered Payment Shares (including any prospectus supplement thereto, the “Prospectus”) shall have been delivered to the Seller, in such quantities as the Seller shall reasonably have requested, on or prior to the last Trading Day of the Averaging PeriodPurchase Completion Date; (ii) the form and content of the Registration Statement and the Prospectus (including, without limitation, any sections describing the plan of distribution) shall be reasonably satisfactory to the Seller; (iii) the Seller and its agents, including BASthe Seller’s Broker-Dealer Entity, if any, shall have been afforded a commercially reasonable opportunity to conduct a due diligence investigation with respect to the Company IBM customary in scope for underwritten offerings of equity securities of comparable issuers and the results of such investigation are satisfactory to the Seller, in its discretion; and (iv) as of the last Trading Day of the Averaging PeriodPurchase Completion Date, an agreement (the “Transfer Agreement”) shall have been entered into with among the Seller Seller, the Company and IBM in connection with the public resale of the Registered Payment Shares by the Seller substantially similar to underwriting agreements customary for underwritten offerings of equity securitiessecurities of comparable issuers, in form and substance commercially reasonably satisfactory to the Seller, which Transfer 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, the Seller and its affiliates. If the Settlement Amount is less than zero and the Company has elected to deliver Registered Payment Shares and any of the above conditions is not satisfied as of the last Trading Day of the Averaging PeriodPurchase Completion Date, the Company shall, in lieu of delivery of Registered Payment Shares, either (x) make a cash payment to the Seller in immediately available funds in an amount equal to the absolute value of the Settlement Amount on the second Settlement Trading Day following the end of the Averaging Period Purchase Completion Date and shall reimburse the Seller for all reasonable out-of-pocket expenses it incurs has incurred in connection with due diligence and otherwise in connection with the anticipated delivery of the Registered Payment Shares, including, without limitation, the reasonable fees and expenses of outside counsel to the Seller incurred in connection thereof or (y) deliver Restricted Payment Shares pursuant to Section 5(a)(ii)(B) and Make-Whole Payment Shares pursuant to Section 5(c), in which case the Calculation Agent may make appropriate adjustments to the settlement terms to compensate the Seller for all reasonable out-of-pocket expenses it has incurred in connection with due diligence and otherwise in connection with the anticipated delivery of the Registered Payment Shares, including, without limitation, the reasonable fees and expenses of outside counsel to the Seller incurred in connection thereof. (b) The If the Company may only elects to deliver Restricted Payment Shares pursuant to Section 5(a)(ii5(a)(ii)(B) and Make-Whole Payment Shares pursuant to Section 5(c) subject to satisfaction of the following conditions), then: (i) all Restricted Payment Shares and Make-Whole Payment Shares shall be delivered to the Seller (or any affiliate of the Seller designated by the Seller) pursuant to the exemption from the registration requirements of the Securities Act provided by Section 4(2) thereof; (ii) BASThe Seller’s Broker-Dealer Entity, if any, the Seller and any potential purchaser of any such shares from the Seller (or any affiliate of the Seller designated by the Seller) identified by BAS the Seller’s Broker-Dealer Entity, if any, or the Seller shall have been be afforded a commercially reasonable opportunity to conduct a due diligence investigation with respect to the Company IBM customary in scope for private placements of equity securities (includingand the results of such investigation are satisfactory to such person, 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)in its discretion; and (iii) the Company and IBM shall enter into an agreement (a “Private Placement Agreement”) shall have been entered into between the Company and with the Seller (or any affiliate of the Seller designated by the Seller) in connection with the private placement of such shares by the Company to the Seller (or any such affiliate) and the private resale of such shares by the Seller (or any such affiliate), substantially similar to private placement purchase agreements customary for private placements of equity securitiessecurities of comparable issuers, in form and substance commercially reasonably satisfactory to the SellerSeller or such affiliate, which Private Placement Agreement shall include, without limitation, provisions substantially similar to those contained in such private placement purchase agreements relating to the indemnification of, and contribution in connection with the liability of, the Seller and its affiliates, and shall provide for the payment by the Company of all fees and reasonable out-of-pocket expenses in connection with such resale, including all fees and expenses of counsel for the Seller, and shall contain representations, warranties and agreements of IBM and the Company reasonably necessary or advisable to establish and maintain the availability of an exemption from the registration requirements of the Securities Act for such resales. For the avoidance of doubt nothing in this Section 6(b) shall be read as requiring the Company to deliver cash in respect of the settlement of the transactions contemplated by the Agreement. (c) If the Settlement Amount is less than zero and the Company has elected elects to deliver Restricted Payment Shares and pursuant to Section 5(a)(ii)(B) above, the Company shall not take or cause to be taken any action that would make unavailable either (i) the exemption set forth in Section 4(2) of the above conditions is not satisfied as Securities Act for the sale of the last Trading Day of the Averaging Period and on each date when any Restricted Payment Shares or Make-Whole Payment Shares are to be delivered, by the Company shall, in lieu of delivery to the Seller or (ii) an exemption from the registration requirements of the Securities Act reasonably acceptable to the Seller for resales of Restricted Payment Shares or such and Make-Whole Payment Shares, as Shares by the case may be, make a cash payment to the Seller in immediately available funds in an amount equal to the absolute value of the Settlement Amount or the then remaining Settlement Balance, as the case may be, in either case on the second Settlement Day following the date when such delivery would have otherwise been required and shall reimburse the Seller for all reasonable out-of-pocket expenses it incurs in connection with the anticipated delivery of the Restricted Payment Shares or the Make-Whole Payment Shares, including, without limitation, the reasonable fees and expenses of outside counsel to the Seller incurred in connection thereofSeller. (cd) Notwithstanding the provisions of Section 5(a) above, if the Company has elected to deliver any Payment Shares hereunder, the Company shall not be required to deliver more than the Maximum Deliverable Number of shares of Common Stock as Payment Shares hereunder.

Payment Shares. The following provisions are applicable if the Company elects to deliver Payment Shares pursuant to Sections V or X of this Letter Agreement: (a) The Company may only deliver Registered Payment Shares pursuant agrees to Section 5(a)(iitake all actions within its control, including, without limitation, the procedures set forth in Annex A, to make available to Citigroup and its affiliates an effective registration statement under the Securities Act and one or more prospectuses as necessary to allow Citigroup and its affiliates to comply with the applicable prospectus delivery requirements (the “Prospectus”) subject to satisfaction for the resale by Citigroup and its affiliates of the following conditions: (i) a registration statement covering public resale shares of the Registered Payment Shares Common Stock delivered by the Seller Company hereunder (the “Registration Statement”), such Registration Statement to be effective and Prospectus to be current on each Trading Day in any Valuation Period and until all such resales by Citigroup (or its affiliates) shall have been filed withsettled. It is understood that the Registration Statement and Prospectus may cover a number of shares of Common Stock equal to all shares to be delivered by the Company hereunder. Citigroup shall provide, by a reasonable time in advance, such information regarding Citigroup and declared effective by, the Securities and Exchange Commission under the Securities Act on or prior to the last Trading Day of the Averaging Period, and no stop order its affiliates as shall be required to be included in effect the Prospectus. The Company shall pay the applicable registration fee and all costs in connection with respect to the Registration Statement; a printed prospectus relating to the Registered Payment Shares (including any prospectus supplement thereto, the “Prospectus”) shall have been delivered to the Seller, in such quantities as the Seller shall reasonably have requested, on or prior to the last Trading Day of the Averaging Period; (ii) the form and content preparation of the Registration Statement and the Prospectus (including, without limitation, the cost of printing the Prospectus. In addition, the Company agrees to take all actions set forth in Annex B and otherwise to take such actions reasonably requested by Citigroup to facilitate the disposition of the Payment Shares. (b) The Company represents, on each day described in subsection (a), that each of its filings under the Securities Act, the Exchange Act or other applicable securities laws that are required to be filed have been filed and that, as of the date of this representation and as supplemented by any sections describing information provided by the plan Company to Citigroup in connection with sales on a private placement basis pursuant to subsection (e) below, there is no misstatement of distributionmaterial fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements therein not misleading. (c) The Company agrees to provide to Citigroup and its affiliates on (or, if requested by Citigroup, reasonably in advance of) the final Trading Day of the Pricing Period or other date the number of shares of Common Stock to be delivered is determined, opinions of counsel, comfort letters, officers’ certificates and such other documents as may be reasonably requested by Citigroup. The Company also agrees that Citigroup and its affiliates shall be entitled to perform such diligence as Citigroup may reasonably request in advance of such date and the results thereof must be reasonably satisfactory to Citigroup. The Company agrees to reimburse Citigroup for all reasonable out-of-pocket expenses it incurs in connection with such diligence and otherwise in connection with the Seller;preparation of the Registration Statement and Prospectus (or any offering document for sales on a private placement basis pursuant to subsection (e) below), including, without limitation, the reasonable fees and expenses of one outside counsel to Citigroup incurred in connection therewith. (iiid) the Seller and its agentsThe Company shall, including BAS, shall have been afforded a reasonable opportunity to conduct a due diligence investigation with respect prior to the Company customary in scope for underwritten offerings of equity securities and the results of such investigation are satisfactory to the Seller, in its discretion; and (iv) as start of the last Trading Day of the Averaging applicable Valuation Period, enter into an agreement (the “Transfer Agreement”) shall have been entered into with the Seller Citigroup in connection with the public resale of the Registered Payment Shares by the Seller Citigroup or its affiliates substantially similar to underwriting agreements customary for underwritten offerings of entered into by Citigroup with respect to equity securities, in form and substance satisfactory to ; the Seller, which Transfer 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, the Seller Citigroup and its affiliates. . (e) If on any date during the Settlement Amount period referred to in subsection (a) the requirements of subsection (a), (c) or (d) are not satisfied (determined without regard to whether the cause is less than zero within the control of the Company) or the representations and warranties contained herein with respect to the Company has elected (including, without limitation, in subsection (b)) are not true and correct, (i) the Company shall immediately notify Citigroup thereof; (ii) (A) Citigroup shall be entitled to deliver Registered Payment Shares cease selling shares of Common Stock pursuant to the Registration Statement; and any (B) if the Registration Statement is not effective on such date or a stop order suspending the effectiveness of the above conditions is Registration Statement has been issued or proceedings for that purpose have been instituted or threatened, or if the representations and warranties contained in subsection (b) are not satisfied as true and correct, and in any such case the Company so requests, Citigroup shall cease selling shares of Common Stock pursuant to the last Trading Day Registration Statement; and (iii) if Citigroup ceases selling shares of the Averaging PeriodCommon Stock pursuant to clause (ii), the Company shall, in lieu at its election, (A) purchase from Citigroup any shares of delivery of Registered Payment Shares, make a cash payment Common Stock delivered to the Seller in immediately available funds in Citigroup hereunder that remain unsold for an amount in the aggregate that equals the difference between the absolute value of the Settlement Amount and any proceeds (net of brokerage costs) received by Citigroup (or an affiliate of Citigroup) from resales of shares of Common Stock delivered to Citigroup by the Company hereunder; or (B) direct Citigroup and its affiliates, in a commercially reasonable manner (or absent any such election by the Company, Citigroup and its affiliates shall be entitled) to sell Shares received from the Company hereunder as otherwise provided hereunder on a private placement basis in compliance with the Securities Act, and the rules and regulations of the Securities and Exchange Commission (the “SEC”) promulgated thereunder; provided that if clause (B) applies, the Company shall perform its obligations under subsection (c) and shall cause its representations in subsection (b) to be true and correct. If shares are so sold, the Company shall deliver, promptly upon request from Citigroup, the number of shares of Common Stock Citigroup determines in a commercially reasonable manner is adequate to realize aggregate actual proceeds (net of brokerage costs) equal to the absolute value of the applicable Settlement Amount on Amount, and the second Settlement Day following the end of the Averaging Period and shall reimburse the Seller for all reasonable out-of-pocket expenses it incurs in connection with due diligence and otherwise in connection with the anticipated delivery of the Registered Payment Shares, including, without limitation, the reasonable fees and expenses of outside counsel Company’s obligation to the Seller incurred in connection thereof. deliver Shares under this subsection (be) The Company may only deliver Restricted Payment Shares pursuant to Section 5(a)(ii) and Make-Whole Payment Shares pursuant to Section 5(c) subject to satisfaction of the following conditions: (i) all Restricted Payment Shares and Make-Whole Payment Shares shall be delivered a continuing one until Citigroup or its affiliates have received actual net proceeds equal to the Seller (or any affiliate of the Seller designated by the Seller) pursuant to the exemption from the registration requirements of the Securities Act provided by Section 4(2) thereof; (ii) BASsuch amount; provided, the Seller and any potential purchaser of any such shares from the Seller (or any affiliate of the Seller designated by the Seller) identified by BAS or the Seller however, that in no event shall have been afforded a commercially reasonable opportunity to conduct a due diligence investigation with respect to the Company 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); and (iii) an agreement (a “Private Placement Agreement”) shall have been entered into between the Company and the Seller (or any affiliate of the Seller designated by the Seller) in connection with the private placement of such shares by the Company to the Seller (or any such affiliate) and the private resale of such shares by the Seller (or any such affiliate), substantially similar to private placement purchase agreements customary for private placements of equity securities, in form and substance commercially reasonably satisfactory to the Seller, which Private Placement Agreement shall include, without limitation, provisions substantially similar to those contained in such private placement purchase agreements relating to the indemnification of, and contribution in connection with the liability of, the Seller and its affiliates, and shall provide for the payment by the Company of all fees and expenses in connection with such resale, including all fees and expenses of counsel for the Seller, and shall contain representations, warranties and agreements of the Company reasonably necessary or advisable to establish and maintain the availability of an exemption from the registration requirements of the Securities Act for such resales. If the Settlement Amount is less than zero and the Company has elected to deliver Restricted Payment Shares and any of the above conditions is not satisfied as of the last Trading Day of the Averaging Period and on each date when any Make-Whole Payment Shares are to be delivered, the Company shall, in lieu of delivery of the Restricted Payment Shares or such Make-Whole Payment Shares, as the case may be, make a cash payment to the Seller in immediately available funds in an amount equal to the absolute value of the Settlement Amount or the then remaining Settlement Balance, as the case may be, in either case on the second Settlement Day following the date when such delivery would have otherwise been required and shall reimburse the Seller for all reasonable out-of-pocket expenses it incurs in connection with the anticipated delivery of the Restricted Payment Shares or the Make-Whole Payment Shares, including, without limitation, the reasonable fees and expenses of outside counsel to the Seller incurred in connection thereof. (c) Notwithstanding the provisions of Section 5(a) above, if the Company has elected to deliver any Payment Shares hereunder, the Company shall not be required to deliver more than the Maximum Deliverable Number a number of shares of Common Stock as Payment Shares hereunderthat exceeds the Share Cap. Citigroup and its affiliates shall be entitled to disclose any material non-public information regarding the Company in their possession to prospective purchasers in such a private placement, provided that any such purchaser agrees with Citigroup to maintain such information on a confidential basis.

Payment Shares. (a) The Company may only deliver Registered Payment Shares pursuant to Section 5(a)(ii) subject to satisfaction of the following conditions: (i) a registration statement covering public resale of the Registered Payment Shares by the Seller (the “Registration Statement”) shall have been filed with, and declared effective by, the Securities and Exchange Commission under the Securities Act on or prior to the last Trading Day of the Averaging Period, and no stop order shall be in effect with respect to the Registration Statement; a printed prospectus relating to the Registered Payment Shares (including any prospectus supplement thereto, the “Prospectus”) shall have been delivered to the Seller, in such quantities as the Seller shall reasonably have requested, on or prior to the last Trading Day of the Averaging Period; (ii) the form and content of the Registration Statement and the Prospectus (including, without limitation, any sections describing the plan of distribution) shall be reasonably satisfactory to the Seller; (iii) the Seller and its agents, including BAS, shall have been afforded a reasonable opportunity to conduct a due diligence investigation with respect to the Company customary in scope for underwritten offerings of equity securities and the results of such investigation are satisfactory to the Seller, in its discretion; and (iv) as of the last Trading Day of the Averaging Period, an agreement (the “Transfer Agreement”) shall have been entered into with the Seller in connection with the public resale of the Registered Payment Shares by the Seller substantially similar to underwriting agreements customary for underwritten offerings of equity securities, in form and substance satisfactory to the Seller, which Transfer 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, the Seller and its affiliates. If the Settlement Amount is less than zero and the Company has elected to deliver Registered Payment Shares and any of the above conditions is not satisfied as of the last Trading Day of the Averaging Period, the Company shall, in lieu of delivery of Registered Payment Shares, make a cash payment to the Seller in immediately available funds in an amount equal to the absolute value of the Settlement Amount on the second Settlement Day following the end of the Averaging Period and shall reimburse the Seller for all reasonable out-of-pocket expenses it incurs in connection with due diligence and otherwise in connection with the anticipated delivery of the Registered Payment Shares, including, without limitation, the reasonable fees and expenses of outside counsel to the Seller incurred in connection thereof. (b) The Company may only deliver Restricted Payment Shares pursuant to Section 5(a)(ii5(a)(ii)(A) and Make-Whole Payment Shares pursuant to Section 5(c) subject to satisfaction of the following conditions: (i) all Restricted Payment Shares and Make-Whole Payment Shares shall be delivered to the Seller (or any affiliate of the Seller designated by the Seller) pursuant to the exemption from the registration requirements of the Securities Act provided by Section 4(2) thereof; (ii) BAS, the Seller and any potential purchaser of any such shares from the Seller (or any affiliate of the Seller designated by the Seller) identified by BAS or the Seller shall have entered into a confidentiality agreement reasonably acceptable in form and content to the Company and, pursuant thereto, shall have been afforded a commercially reasonable opportunity to conduct a due diligence investigation with respect to the Company 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); and (iii) an agreement (a “Private Placement Agreement”) shall have been entered into between the Company and the Seller (or any affiliate of the Seller designated by the Seller) in connection with the private placement of such shares by the Company to the Seller (or any such affiliate) and the private resale of such shares by the Seller (or any such affiliate), on customary and commercially reasonable terms substantially similar to private placement purchase agreements customary for private placements of equity securities, in form and substance commercially reasonably satisfactory to the Seller, which Private Placement Agreement shall include, without limitation, provisions substantially similar to those contained in such private placement purchase agreements relating to the indemnification of, and contribution in connection with the liability of, the Seller and its affiliates, and shall provide for the payment by the Company of all reasonable out-of-pocket fees and expenses in connection with such resale, including all reasonable out-of-pocket fees and expenses of counsel for the Seller, and shall contain representations, warranties and agreements of the Company reasonably necessary or advisable to establish and maintain the availability of an exemption from the registration requirements of the Securities Act for such resales. If the Settlement Amount is less than zero and the Company has elected to deliver Restricted Payment Shares and any of the above conditions is not satisfied as of the last Trading Day of the Averaging Period and on each date when any Make-Whole Payment Shares are to be delivered, the Company shall, in lieu of delivery of the Restricted Payment Shares or such Make-Whole Payment Shares, as the case may be, make a cash payment to the Seller in immediately available funds in an amount equal to the absolute value of the Settlement Amount or the then remaining Settlement Balance, as the case may be, in either case on the second Settlement Day following the date when such delivery would have otherwise been required and shall reimburse the Seller for all reasonable out-of-pocket expenses it incurs in connection with the anticipated delivery of the Restricted Payment Shares or the Make-Whole Payment Shares, including, without limitation, the out-of-pocket reasonable fees and expenses of outside counsel to the Seller incurred in connection thereof. For the avoidance of doubt, nothing in this Section 6(a) shall be read as requiring the Company to deliver cash in respect of the settlement of the transactions contemplated by this Letter Agreement. (b) If the Company elects to deliver Restricted Payment Shares pursuant to Section 5(a)(ii)(A) above, the Company shall not (i) take or cause to be taken any action that would make unavailable the exemption set forth in Section 4(2) of the Securities Act for the sale of any Restricted Payment Shares or Make-Whole Payment Shares by the Company to the Seller, or (ii) engage or cause any person to engage in any general solicitation in connection with, or engage in any securities offering that could be integrated with, the resales of Restricted Payment Shares and Make-Whole Payment Shares by the Seller that would make unavailable an exemption from the registration requirements of the Securities Act reasonably acceptable to the Seller for such resales. (c) If the Settlement Amount is less than zero and the Company elects to deliver Restricted Payment Shares pursuant to Section 5(a)(ii)(A), then, if necessary, the Company shall use its commercially reasonable efforts to cause the number of authorized but unissued shares of Common Stock to be increased to an amount sufficient to permit the Company to fulfill its obligations under Section 5 above. (d) The Company has the ability to disclose publicly all material information relating to the Company. (e) Notwithstanding the provisions of Section 5(a) above, if the Company has elected to deliver any Payment Shares hereunder, the Company shall not be required to deliver more than the Maximum Deliverable Number of shares of Common Stock as Payment Shares hereunder.