Common use of Registration/Private Placement Procedures Clause in Contracts

Registration/Private Placement Procedures. (i) If, in the good faith and reasonable judgment of Dealer based on the advice of counsel, for any reason, any Shares or any securities of Issuer or its affiliates comprising any Share Termination Delivery Units deliverable to Dealer hereunder (any such Shares or securities, “Delivered Securities”) would not be immediately freely transferable by Dealer under Rule 144 under the Securities Act, then the provisions set forth in this Section 8(b) shall apply. At the election of Issuer by notice to Dealer within one Scheduled Trading Day after the relevant delivery obligation arises, but in any event at least one Scheduled Trading Day prior to the date on which such delivery obligation is due, either (A) all Delivered Securities delivered by Issuer to Dealer shall be, at the time of such delivery, covered by an effective registration statement of Issuer for immediate resale by Dealer (such registration statement and the corresponding prospectus (the “Prospectus”) (including, without limitation, any sections describing the plan of distribution) in form and content commercially reasonably satisfactory to Dealer) or (B) Issuer shall deliver additional Delivered Securities so that the value of such Delivered Securities, as determined by the Calculation Agent to reflect an appropriate liquidity discount, equals the value of the number of Delivered Securities that would otherwise be deliverable if such Delivered Securities were freely tradeable (without prospectus delivery) upon receipt by Dealer (such value, the “Freely Tradeable Value”); provided that, for the avoidance of doubt, Issuer may not make the election described in this clause (B) if, as of the date of its election, it has not complied with the requirements of Section 8(b)(iv) below. (For the avoidance of doubt, as used in this paragraph (b) only, the term “Issuer” shall mean the issuer of the relevant securities, as the context shall require.)

Registration/Private Placement Procedures. (i) If, If in the good faith and reasonable judgment determination of Dealer Dealer, based on the advice of counsel, for following any reason, any delivery of Shares or any securities of Issuer or its affiliates comprising any Share Termination Delivery Units deliverable Property to Dealer hereunder (any hereunder, such Shares or securitiesShare Termination Delivery Property would be in the hands of Dealer subject to any applicable restrictions, “Delivered Securities”) would not be immediately freely transferable by Dealer under Rule 144 under the Securities Actor any registration or qualification requirement or prospectus delivery requirement for such Shares or Share Termination Delivery Property, then the provisions set forth in this Section 8(b) shall apply. At the election of Issuer by notice pursuant to Dealer within one Scheduled Trading Day after the relevant delivery obligation arises, but in any event at least one Scheduled Trading Day prior to the date on which such delivery obligation is due, either (A) all Delivered Securities delivered by Issuer to Dealer shall be, at the time of such delivery, covered by an effective registration statement of Issuer for immediate resale by Dealer (such registration statement and the corresponding prospectus (the “Prospectus”) applicable federal or state securities law (including, without limitation, any sections describing such requirement arising under Section 5 of the plan Securities Act as a result of distributionsuch Shares or Share Termination Delivery Property being subject to restrictions on resale under the Securities Act, or as a result of the sale of such Shares or Share Termination Delivery Property being subject to paragraph (c) in form and content commercially reasonably satisfactory of Rule 145 under the Securities Act) (such Shares or Share Termination Delivery Property, “Restricted Shares”), then delivery of such Restricted Shares shall be effected pursuant to Dealereither clause (i) or (Bii) Issuer shall deliver additional Delivered Securities so that the value of such Delivered Securities, as determined by the Calculation Agent to reflect an appropriate liquidity discount, equals the value of the number of Delivered Securities that would otherwise be deliverable if such Delivered Securities were freely tradeable (without prospectus delivery) upon receipt by Dealer (such value, the “Freely Tradeable Value”); provided that, for the avoidance of doubt, Issuer may not make below at the election described of Company, unless Dealer waives the need for registration/private placement procedures set forth in this clause (Bi) if, as of the date of its election, it has not complied with the requirements of Section 8(b)(ivand (ii) below. (For Notwithstanding the avoidance foregoing, solely in respect of doubtany Daily Number of Warrants exercised or deemed exercised on any Expiration Date, as used if Dealer notifies Company of the need for registration or private placement procedures set forth in this paragraph Section 9(k), then Company shall elect, prior to the first applicable Settlement Date for the first applicable Expiration Date, a Private Placement Settlement or Registration Settlement for all deliveries of Restricted Shares for all such Expiration Dates which election shall be applicable to all remaining Settlement Dates for such Warrants and the procedures in clause (bi) only, or clause (ii) below shall apply for all such delivered Restricted Shares on an aggregate basis commencing after the term “Issuer” final Settlement Date for such Warrants. The Calculation Agent shall mean the issuer of the relevant securities, as the context shall requiremake reasonable adjustments to settlement terms and provisions under this Confirmation to reflect a single Private Placement or Registration Settlement for such aggregate Restricted Shares delivered hereunder.)

Registration/Private Placement Procedures. (i) If, in the good faith and reasonable judgment opinion of Dealer based on the advice of counsel, for any reasona Warrantholder, any Shares or any other securities of Issuer or its affiliates comprising any Share included in the Warrant Termination Delivery Units deliverable Property to Dealer hereunder (be delivered to such Warrantholder pursuant to the Warrant Termination Alternative would in the hands of such Warrantholder be subject to any applicable restrictions with respect to any registration or qualification requirement or prospectus delivery requirement for such Shares or securities, other securities pursuant to any applicable federal or state securities law (“Delivered Securities”) would not be immediately freely transferable by Dealer under Rule 144 under the Securities Act, then the provisions set forth in this Section 8(b) shall apply. At the election of Issuer by notice to Dealer within one Scheduled Trading Day after the relevant delivery obligation arises, but in any event at least one Scheduled Trading Day prior to the date on which such delivery obligation is due, either (A) all Delivered Securities delivered by Issuer to Dealer shall be, at the time of such delivery, covered by an effective registration statement of Issuer for immediate resale by Dealer (such registration statement and the corresponding prospectus (the “ProspectusRestrictions”) (including, without limitation, any sections describing such requirement arising under Section 5 of the plan Securities Act as a result of distributionsuch Shares or other securities being “restricted securities,” as such term is defined in Rule 144 under the Securities Act, or as a result of the sale of such Shares or other securities being subject to paragraph (c) of Rule 145 under the Securities Act) (such Shares or other securities, “Restricted Shares”), then, as soon as practicable and in form any event not later than the second Exchange Business Day immediately succeeding the Cancellation Amount Notice Date, such Warrantholder shall provide notice of such determination to Issuer and content commercially reasonably satisfactory delivery of such Restricted Shares shall be effected pursuant to Dealereither Section 5.08(a) or (BSection 5.08(b) at the election of the Issuer. If the Issuer shall deliver additional Delivered Securities so elects the Warrant Termination Alternative in accordance with Section 5.07 hereof and the Warrantholder provides notice of its determination in accordance with this Section 5.08 that the value Warrant Termination Delivery Property to be delivered in such Warrant Termination Alternative would include Restricted Shares, then the Issuer shall, not later than the third Exchange Business Day immediately succeeding the Cancellation Amount Notice Date, notify such Warrantholder whether a Private Placement Settlement or Registration Settlement would apply to the delivery of such Delivered Securities, as determined by the Calculation Agent to reflect an appropriate liquidity discount, equals the value of the number of Delivered Securities that would otherwise be deliverable if such Delivered Securities were freely tradeable (without prospectus delivery) upon receipt by Dealer (such value, the “Freely Tradeable Value”); provided that, for the avoidance of doubt, Issuer may not make the election described in this clause (B) if, as of the date of its election, it has not complied with the requirements of Section 8(b)(iv) belowWarrant Termination Delivery Property. (For the avoidance of doubt, as As used in this paragraph (b) onlySection 5.08, the term “IssuerRestricted Shares” shall mean not include any Shares or other securities included in the issuer Warrant Termination Delivery Property if, in the reasonable judgment of the relevant Warrantholder, it may use such Shares or other securities, as without having to comply with any Restrictions, to close out open borrowings created in the context shall requirecourse of such Warrantholder’s Hedging Activities related to its exposure under the relevant Warrants.)

Registration/Private Placement Procedures. (i) If, in the good faith and reasonable judgment opinion of Dealer based on the advice JPMorgan, following any delivery of counsel, for any reason, any Shares or any securities of Issuer or its affiliates comprising any Share Termination Delivery Units deliverable Property to Dealer hereunder (any JPMorgan hereunder, such Shares or Share Termination Delivery Property would be in the hands of JPMorgan subject to any applicable restrictions with respect to any registration or qualification requirement or prospectus delivery requirement for such Shares or Share Termination Delivery Property pursuant to any applicable federal or state securities law (including, without limitation, any such requirement arising under Section 5 of the Securities Act as a result of such Shares or Share Termination Delivery Property being "restricted securities", “Delivered Securities”) would not be immediately freely transferable by Dealer under as such term is defined in Rule 144 under the Securities Act, or as a result of the sale of such Shares or Share Termination Delivery Property being subject to paragraph (c) of Rule 145 under the Securities Act) (such Shares or Share Termination Delivery Property, "RESTRICTED SHARES"), then delivery of such Restricted Shares shall be effected pursuant to either clause (i) or (ii) below at the provisions election of Company, unless JPMorgan waives the need for registration/private placement procedures set forth in this Section 8(b(i) and (ii) below. Notwithstanding the foregoing, solely in respect of any Daily Number of Warrants exercised or deemed exercised on any Expiration Date, Company shall apply. At the election of Issuer by notice to Dealer within one Scheduled Trading Day after the relevant delivery obligation ariseselect, but in any event at least one Scheduled Trading Day prior to the date on first Settlement Date for the first Expiration Date, a Private Placement Settlement or Registration Settlement for all deliveries of Restricted Shares for all such Expiration Dates which election shall be applicable to all Settlement Dates for such delivery obligation is due, either (A) all Delivered Securities delivered by Issuer to Dealer shall be, at the time of such delivery, covered by an effective registration statement of Issuer for immediate resale by Dealer (such registration statement Warrants and the corresponding prospectus procedures in clause (the “Prospectus”) (including, without limitation, any sections describing the plan of distribution) in form and content commercially reasonably satisfactory to Dealeri) or clause (Bii) Issuer below shall deliver additional Delivered Securities so that apply for all such delivered Restricted Shares on an aggregate basis commencing after the value of final Settlement Date for such Delivered Securities, as determined by the Warrants. The Calculation Agent shall make reasonable adjustments to settlement terms and provisions under this Confirmation to reflect an appropriate liquidity discount, equals the value of the number of Delivered Securities that would otherwise be deliverable if a single Private Placement or Registration Settlement for such Delivered Securities were freely tradeable (without prospectus delivery) upon receipt by Dealer (such value, the “Freely Tradeable Value”); provided that, for the avoidance of doubt, Issuer may not make the election described in this clause (B) if, as of the date of its election, it has not complied with the requirements of Section 8(b)(iv) belowaggregate Restricted Shares delivered hereunder. (For the avoidance of doubt, as used in this paragraph (b) only, the term “Issuer” shall mean the issuer of the relevant securities, as the context shall require.)15

Registration/Private Placement Procedures. (i) If, If in the good faith and reasonable judgment determination of Dealer Dealer, based on the advice of counsel, for following any reason, any delivery of Shares or any securities of Issuer or its affiliates comprising any Share Termination Delivery Units deliverable Property to Dealer hereunder (any hereunder, such Shares or securities, “Delivered Securities”) Share Termination Delivery Property would not be immediately freely transferable by Dealer under Rule 144 under the Securities Act (or any successor rule), without volume or manner of sale limitations, other than as a result of Dealer being, or having been at any time during the immediately preceding three months, an “affiliate” (as defined in Rule 144(a)(1) under the Securities Act) of the Issuer (such Shares or Share Termination Delivery Property, “Restricted Shares”), then delivery of such Restricted Shares shall be effected pursuant to either clause (i) or (ii) below at the provisions election of Company, unless Dealer waives the need for registration/private placement procedures set forth in (i) and (ii) below. Notwithstanding the foregoing, if Dealer notifies Company of the need for registration or private placement procedures under this Section 8(b9(k), solely in respect of any Daily Number of Warrants exercised or deemed exercised on any Expiration Date, Company shall elect, prior to the first Settlement Date for the first applicable Expiration Date or, if later, the Scheduled Trading Day following such notification, a Private Placement Settlement or Registration Settlement for all deliveries of Restricted Shares for all such Expiration Dates which election shall be applicable to all remaining Settlement Dates for such Warrants and the procedures in clause (i) or clause (ii) below shall applyapply for all such delivered Restricted Shares on an aggregate basis commencing after the final Settlement Date for such Warrants. At the election written request of Issuer by notice to Dealer within one Scheduled Trading Day after the relevant delivery obligation arisesCompany, but in any event at least one Scheduled Trading Day prior to the date on which such delivery obligation is due, either (A) all Delivered Securities delivered by Issuer to Dealer shall be, at the time of such delivery, covered by an effective registration statement of Issuer for immediate resale by Dealer (such registration statement and the corresponding prospectus (the “Prospectus”) (including, without limitation, any sections describing the plan of distribution) in form and content commercially reasonably satisfactory to Dealer) or (B) Issuer shall deliver additional Delivered Securities so that the value of such Delivered Securities, as determined by the Calculation Agent shall make reasonable adjustments to reflect an appropriate liquidity discount, equals the value of the number of Delivered Securities that would otherwise be deliverable if settlement terms and provisions under this Confirmation to allow for a single Private Placement or Registration Settlement for such Delivered Securities were freely tradeable (without prospectus delivery) upon receipt by Dealer (such value, the “Freely Tradeable Value”); provided that, for the avoidance of doubt, Issuer may not make the election described in this clause (B) if, as of the date of its election, it has not complied with the requirements of Section 8(b)(iv) below. (For the avoidance of doubt, as used in this paragraph (b) only, the term “Issuer” shall mean the issuer of the relevant securities, as the context shall requireaggregate Restricted Shares delivered hereunder.)

Registration/Private Placement Procedures. (i) IfCounterparty hereby agrees that if, in the good faith and reasonable judgment of Dealer based on JPMorgan, the advice of counsel, for any reason, any Shares or any securities of Issuer or its affiliates comprising any Share Termination Delivery Units deliverable to Dealer hereunder (any such Shares or securities, “Delivered SecuritiesHedge Shares”) would acquired by JPMorgan for the purpose of hedging its obligations pursuant to this Transaction cannot be immediately freely transferable sold in the public market by Dealer under Rule 144 JPMorgan without registration under the Securities Act, then the provisions set forth in this Section 8(b) shall apply. At the election of Issuer by notice to Dealer within one Scheduled Trading Day after the relevant delivery obligation arisesCounterparty shall, but in any event at least one Scheduled Trading Day prior to the date on which such delivery obligation is dueits election, either (Ai) all Delivered Securities delivered by Issuer in order to Dealer shall beallow JPMorgan to sell the Hedge Shares in a registered offering, at the time of such delivery, covered by make available to JPMorgan an effective registration statement of Issuer for immediate resale by Dealer (such registration statement under the Securities Act and the corresponding prospectus (the “Prospectus”) (includingenter into an agreement, without limitation, any sections describing the plan of distribution) in form and content commercially substance satisfactory to JPMorgan, substantially in the form of a underwriting agreement customary for a registered secondary offering; provided however, that if JPMorgan, in its sole reasonable discretion, is not satisfied with access to due diligence materials, the results of its due diligence investigation, or the procedures and documentation for the registered offering referred to above, then clause (ii) or clause (iii) of this Section 9(v) shall apply at the election of Counterparty, (ii) in order to allow JPMorgan to sell the Hedge Shares in a private placement (a “Private Placement Settlement”), enter into a private placement agreement substantially similar to private placement purchase agreements customary for private placements of equity securities, in form and substance reasonably satisfactory to Dealer) or JPMorgan using commerically reasonable judgments (B) Issuer shall deliver additional Delivered Securities so that the value of such Delivered Securitiesin which case, as determined by the Calculation Agent shall make any adjustments to reflect an appropriate liquidity discountthe terms of this Transaction which are necessary, equals in its reasonable judgment, to compensate JPMorgan for any discount from the value public market price of the number Shares incurred on the sale of Delivered Securities that would otherwise be deliverable if such Delivered Securities were freely tradeable (without prospectus delivery) upon receipt by Dealer (such value, the “Freely Tradeable Value”Hedge Shares in a private placement); provided that, for the avoidance of doubt, Issuer that Counterparty may not make the election described in this clause (B) elect a Private Placement Settlement if, as of on the date of its election, it has not complied with taken, or caused to be taken, any action that would make unavailable either the requirements of exemption pursuant to Section 8(b)(iv4(2) below. (For the avoidance of doubt, as used in this paragraph (b) only, the term “Issuer” shall mean the issuer of the relevant securitiesSecurities Act for the sale by Counterparty to JPMorgan (or any affiliate designated by JPMorgan) of the Hedge Shares or the exemption pursuant to Section 4(1) or Section 4(3) of the Securities Act for resales of the Hedge Shares by JPMorgan (or any such affiliate of JPMorgan), or (iii) purchase the Hedge Shares from JPMorgan at the Closing Price on such Trading Days, and in the amounts, requested by JPMorgan. JPMorgan Chase Bank, National Association Organised under the laws of the United States as a National Banking Association. Main Oxxxxx 0000 Xxxxxxx Xxxxxxx, Xxxxxxxx, Xxxx 00000 Registered as a branch in England & Wales branch No. BR000746. Registered Branch Office 100 Xxxxxx Xxxx, Xxxxxx XX0X 0XX Authorised and regulated by the context shall require.)Financial Services Authority Please confirm that the foregoing correctly sets forth the terms of our agreement by executing this Confirmation and returning it to EDG Confirmation Group, J.X. Xxxxxx Securities Inc., 200 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000-0000, or by fax on 200 000 0000. Very truly yours,

Registration/Private Placement Procedures. (i) If, If in the good faith and reasonable judgment determination of Dealer Dealer, based on the advice of counsel, for following any reason, any delivery of Shares or any securities of Issuer or its affiliates comprising any Share Termination Delivery Units deliverable Property to Dealer hereunder (any hereunder, such Shares or securitiesShare Termination Delivery Property would be in the hands of Dealer subject to any applicable restrictions, “Delivered Securities”) would not be immediately freely transferable by Dealer under Rule 144 under the Securities Actor any registration or qualification requirement or prospectus delivery requirement for such Shares or Share Termination Delivery Property, then the provisions set forth in this Section 8(b) shall apply. At the election of Issuer by notice pursuant to Dealer within one Scheduled Trading Day after the relevant delivery obligation arises, but in any event at least one Scheduled Trading Day prior to the date on which such delivery obligation is due, either (A) all Delivered Securities delivered by Issuer to Dealer shall be, at the time of such delivery, covered by an effective registration statement of Issuer for immediate resale by Dealer (such registration statement and the corresponding prospectus (the “Prospectus”) applicable federal or state securities law (including, without limitation, any sections describing such requirement arising under Section 5 of the plan Securities Act as a result of distributionsuch Shares or Share Termination Delivery Property being subject to restrictions on resale under the Securities Act) in form and content commercially reasonably satisfactory (such Shares or Share Termination Delivery Property, “Restricted Shares”), then delivery of such Restricted Shares shall be effected pursuant to Dealereither clause (i) or (Bii) Issuer shall deliver additional Delivered Securities so that the value of such Delivered Securities, as determined by the Calculation Agent to reflect an appropriate liquidity discount, equals the value of the number of Delivered Securities that would otherwise be deliverable if such Delivered Securities were freely tradeable (without prospectus delivery) upon receipt by Dealer (such value, the “Freely Tradeable Value”); provided that, for the avoidance of doubt, Issuer may not make below at the election described of Company, unless Dealer waives the need for registration/private placement procedures set forth in this clause (Bi) if, as of the date of its election, it has not complied with the requirements of Section 8(b)(ivand (ii) below. Notwithstanding the foregoing, solely in respect of any Daily Number of Warrants exercised or deemed exercised on any Expiration Date, Company shall elect, prior to the first Settlement Date for the first applicable Expiration Date, a Private Placement Settlement or Registration Settlement for all deliveries of Restricted Shares for all such Expiration Dates, which election shall be applicable to all remaining Settlement Dates for such Warrants and the procedures in clause (i) or clause (ii) below shall apply for all such delivered Restricted Shares on an aggregate basis commencing after the final Settlement Date for such Warrants. The Calculation Agent shall make reasonable adjustments to settlement terms and provisions under this Confirmation to reflect a single Private Placement or Registration Settlement for such aggregate Restricted Shares delivered hereunder. For the avoidance of doubt, these adjustments will only be commercially reasonable in nature (such as used to consider changes in this paragraph (bvolatility, expected dividends, stock loan rate or liquidity relevant to the Shares and the ability to maintain a commercially reasonable hedge position in the Shares) only, and will not impact the term “Issuer” shall mean the issuer of the relevant securities, as the context shall requireCompany’s unilateral right to settle in Shares.)

Registration/Private Placement Procedures. (i) If, in the good faith and commercially reasonable judgment opinion of Dealer Dealer, based on the advice of counsel, for following any reason, any delivery of Shares or any securities of Issuer or its affiliates comprising any Share Termination Delivery Units deliverable Property to Dealer hereunder (any hereunder, such Shares or securities, “Delivered Securities”) Share Termination Delivery Property would not be immediately freely transferable by Dealer under Rule 144 under the Securities Act (or any successor rule), without volume or manner of sale limitations, other than as a result of Dealer being, or having been at any time during the immediately preceding three months, an “affiliate” (as defined in Rule 144(a)(1) under the Securities Act) of the Issuer (such Shares or Share Termination Delivery Property, “Restricted Shares”), then delivery of such Restricted Shares shall be effected pursuant to either clause (i) or (ii) below at the provisions election of Company, unless Dealer waives the need for registration/private placement procedures set forth in (i) and (ii) below. Notwithstanding the foregoing, if Dealer notifies Company of the need for registration or private placement procedures under this Section 8(b9(j), solely in respect of any Daily Number of Warrants exercised or deemed exercised on any Expiration Date, Company shall elect, prior to the first Settlement Date for the first applicable Expiration Date or if later, the Scheduled Trading Day following such notification, a Private Placement Settlement or Registration Settlement for all deliveries of Restricted Shares for all such Expiration Dates which election shall be applicable to all remaining Settlement Dates for such Warrants and the procedures in clause (i) or clause (ii) below shall applyapply for all such delivered Restricted Shares on an aggregate basis commencing after the final Settlement Date for such Warrants. At the election written request of Issuer by notice to Dealer within one Scheduled Trading Day after the relevant delivery obligation arisesCompany, but in any event at least one Scheduled Trading Day prior to the date on which such delivery obligation is due, either (A) all Delivered Securities delivered by Issuer to Dealer shall be, at the time of such delivery, covered by an effective registration statement of Issuer for immediate resale by Dealer (such registration statement and the corresponding prospectus (the “Prospectus”) (including, without limitation, any sections describing the plan of distribution) in form and content commercially reasonably satisfactory to Dealer) or (B) Issuer shall deliver additional Delivered Securities so that the value of such Delivered Securities, as determined by the Calculation Agent shall make reasonable adjustments to reflect an appropriate liquidity discount, equals the value of the number of Delivered Securities that would otherwise be deliverable if settlement terms and provisions under this Confirmation to allow for a single Private Placement or Registration Settlement for such Delivered Securities were freely tradeable (without prospectus delivery) upon receipt by Dealer (such value, the “Freely Tradeable Value”); provided that, for the avoidance of doubt, Issuer may not make the election described in this clause (B) if, as of the date of its election, it has not complied with the requirements of Section 8(b)(iv) below. (For the avoidance of doubt, as used in this paragraph (b) only, the term “Issuer” shall mean the issuer of the relevant securities, as the context shall requireaggregate Restricted Shares delivered hereunder.)

Registration/Private Placement Procedures. (i) IfCounterparty hereby agrees that if, in the good faith and reasonable judgment of Dealer based on BofA, the advice of counsel, for any reason, any Shares or any securities of Issuer or its affiliates comprising any Share Termination Delivery Units deliverable to Dealer hereunder (any such Shares or securities, “Delivered SecuritiesHedge Shares”) would acquired by BofA for the purpose of hedging its obligations pursuant to this Transaction cannot be immediately freely transferable sold in the public market by Dealer under Rule 144 BofA without registration under the Securities Act, then the provisions set forth in this Section 8(b) shall apply. At the election of Issuer by notice to Dealer within one Scheduled Trading Day after the relevant delivery obligation arisesCounterparty shall, but in any event at least one Scheduled Trading Day prior to the date on which such delivery obligation is dueits election, either (Ai) all Delivered Securities delivered by Issuer in order to Dealer shall beallow BofA to sell the Hedge Shares in a registered offering, at the time of such delivery, covered by make available to BofA an effective registration statement of Issuer for immediate resale by Dealer (such registration statement under the Securities Act and the corresponding prospectus (the “Prospectus”) (includingenter into an agreement, without limitation, any sections describing the plan of distribution) in form and content commercially substance satisfactory to BofA, substantially in the form of a underwriting agreement customary for a registered secondary offering; provided however, that if BofA, in its sole reasonable discretion, is not satisfied with access to due diligence materials, the results of its due diligence investigation, or the procedures and documentation for the registered offering referred to above, then clause (ii) or clause (iii) of this Section 9(u) shall apply at the election of Counterparty, (ii) in order to allow BofA to sell the Hedge Shares in a private placement (a “Private Placement Settlement”), enter into a private placement agreement substantially similar to private placement purchase agreements customary for private placements of equity securities, in form and substance reasonably satisfactory to Dealer) or BofA using commercially reasonable judgments (B) Issuer shall deliver additional Delivered Securities so that the value of such Delivered Securitiesin which case, as determined by the Calculation Agent shall make any adjustments to reflect an appropriate liquidity discountthe terms of this Transaction which are necessary, equals in its reasonable judgment, to compensate BofA for any discount from the value public market price of the number Shares incurred on the sale of Delivered Securities that would otherwise be deliverable if such Delivered Securities were freely tradeable (without prospectus delivery) upon receipt by Dealer (such value, the “Freely Tradeable Value”Hedge Shares in a private placement); provided that, for the avoidance of doubt, Issuer that Counterparty may not make the election described in this clause (B) elect a Private Placement Settlement if, as of on the date of its election, it has not complied with taken, or caused to be taken, any action that would make unavailable either the requirements of exemption pursuant to Section 8(b)(iv4(2) below. (For the avoidance of doubt, as used in this paragraph (b) only, the term “Issuer” shall mean the issuer of the relevant securitiesSecurities Act for the sale by Counterparty to BofA (or any affiliate designated by BofA) of the Hedge Shares or the exemption pursuant to Section 4(1) or Section 4(3) of the Securities Act for resales of the Hedge Shares by BofA (or any such affiliate of BofA), as or (iii) purchase the context shall require.)Hedge Shares from BofA at the Closing Price on such Trading Days, and in the amounts, requested by BofA.

Registration/Private Placement Procedures. (i) IfCounterparty hereby agrees that if, in the good faith and reasonable judgment of Dealer based on JPMorgan, the advice of counsel, for any reason, any Shares or any securities of Issuer or its affiliates comprising any Share Termination Delivery Units deliverable to Dealer hereunder (any such Shares or securities, “Delivered SecuritiesHedge Shares”) would acquired by JPMorgan for the purpose of hedging its obligations pursuant to this Transaction cannot be immediately freely transferable sold in the public market by Dealer under Rule 144 JPMorgan without registration under the Securities Act, then the provisions set forth in this Section 8(b) shall apply. At the election of Issuer by notice to Dealer within one Scheduled Trading Day after the relevant delivery obligation arisesCounterparty shall, but in any event at least one Scheduled Trading Day prior to the date on which such delivery obligation is dueits election, either (Ai) all Delivered Securities delivered by Issuer in order to Dealer shall beallow JPMorgan to sell the Hedge Shares in a registered offering, at the time of such delivery, covered by make available to JPMorgan an effective registration statement of Issuer for immediate resale by Dealer (such registration statement under the Securities Act and the corresponding prospectus (the “Prospectus”) (includingenter into an agreement, without limitation, any sections describing the plan of distribution) in form and content commercially substance satisfactory to JPMorgan, substantially in the form of a underwriting agreement customary for a registered secondary offering; provided however, that if JPMorgan, in its sole reasonable discretion, is not satisfied with access to due diligence materials, the results of its due diligence investigation, or the procedures and documentation for the registered offering referred to above, then clause (ii) or clause (iii) of this Section 9(v) shall apply at the election of Counterparty, (ii) in order to allow JPMorgan to sell the Hedge Shares in a private placement (a “Private Placement Settlement”), enter into a private placement agreement substantially similar to private placement purchase agreements customary for private placements of equity securities, in form and substance reasonably satisfactory to Dealer) or JPMorgan using commerically reasonable judgments (B) Issuer shall deliver additional Delivered Securities so that the value of such Delivered Securitiesin which case, as determined by the Calculation Agent shall make any adjustments to reflect an appropriate liquidity discountthe terms of this Transaction which are necessary, equals in its reasonable judgment, to compensate JPMorgan for any discount from the value public market price of the number Shares incurred on the sale of Delivered Securities that would otherwise be deliverable if such Delivered Securities were freely tradeable (without prospectus delivery) upon receipt by Dealer (such value, the “Freely Tradeable Value”Hedge Shares in a private placement); provided that, for the avoidance of doubt, Issuer that Counterparty may not make the election described in this clause (B) elect a Private Placement Settlement if, as of on the date of its election, it has not complied with taken, or caused to be taken, any action that would make unavailable either the requirements exemption pursuant to Section 4(2) of the Securities Act for the sale by Counterparty to JPMorgan (or any affiliate designated by JPMorgan) of the Hedge Shares or the exemption pursuant to Section 8(b)(iv4(1) belowor Section 4(3) of the Securities Act for resales of the Hedge Shares by JPMorgan (or any such affiliate of JPMorgan), or (iii) purchase the Hedge Shares from JPMorgan at the Closing Price on such Trading Days, and in the amounts, requested by JPMorgan. (For JPMorgan Chase Bank, National Association Organised under the avoidance laws of doubtthe United States as a National Banking Association. Main Office 0000 Xxxxxxx Xxxxxxx, Xxxxxxxx, Xxxx 00000 Registered as a branch in England & Wales branch No. BR000746. Registered Branch Office 000 Xxxxxx Xxxx, Xxxxxx XX0X 0XX Authorised and regulated by the Financial Services Authority Please confirm that the foregoing correctly sets forth the terms of our agreement by executing this Confirmation and returning it to EDG Confirmation Group, X.X. Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000-0000, or by fax on 000 000 0000. Very truly yours, X.X. Xxxxxx Securities Inc., as used in this paragraph (b) onlyagent for JPMorgan Chase Bank, the term “Issuer” shall mean the issuer National Association By: /s/ Xxxxxxx Xxxxxxxxxxx Authorized Signatory Name: Xxxxxxx Xxxxxxxxxxx Vice President Accepted and confirmed as of the relevant securitiesTrade Date: Sonic Automotive, as the context shall require.)Inc. By: /s/ Xxxxxxx X. Xxxx Authorized Signatory Name: Xxxxxxx X. Xxxx Annex A Relevant Relevant Price Date $5.00 or less $10.00 $15.00 $20.00 $25.00 $30.00 $35.00 $40.00 $45.00 $50.00 or more 5/30/2006 0.6275 3.4800 7.1494 10.6618 12.3180 8.2642 5.7055 3.9940 2.7946 1.9208 11/30/2006 0.4174 2.8473 6.3432 9.8627 11.6038 7.6578 5.2056 3.5905 2.4747 1.6724 5/30/2007 0.2549 2.2454 5.5222 9.0282 10.8527 7.0214 4.6847 3.1741 2.1488 1.4230 11/30/2007 0.1346 1.6641 4.6564 8.1189 10.0272 6.3239 4.1190 2.7278 1.8048 1.1646 5/30/2008 0.0581 1.1345 3.7679 7.1443 9.1321 5.5709 3.5160 2.2602 1.4517 0.9055 11/30/2008 0.0175 0.6684 2.8432 6.0668 8.1285 4.7339 2.8593 1.7647 1.0893 0.6492 5/30/2009 0.0028 0.3080 1.9187 4.8849 7.0039 3.8083 2.1552 1.2541 0.7323 0.4093 11/30/2009 0.0001 0.0795 1.0080 3.5193 5.6613 2.7356 1.3868 0.7370 0.3995 0.2056 5/30/2010 0.0000 0.0035 0.2632 1.9333 3.9873 1.4884 0.6036 0.2822 0.1456 0.0711 11/30/2010 0.0000 0.0000 0.0000 0.0955 1.2245 0.0991 0.0442 0.0294 0.0182 0.0093

Registration/Private Placement Procedures. (i) If, in the good faith and reasonable judgment opinion of Dealer based on the advice Bank, following any delivery of counsel, for any reason, any Shares or any securities of Issuer or its affiliates comprising any Share Termination Delivery Units deliverable to Dealer hereunder (any Bank hereunder, such Shares or Termination Delivery Units would be in the hands of Bank subject to any applicable restrictions with respect to any registration or qualification requirement or prospectus delivery requirement for such Shares or Termination Delivery Units pursuant to any applicable federal or state securities law (including, without limitation, any such requirement arising under Section 5 of the Securities Act as a result of such Shares or Termination Delivery Units being “restricted securities”, “Delivered Securities”) would not be immediately freely transferable by Dealer under as such term is defined in Rule 144 under the Securities Act, or as a result of the sale of such Shares or Termination Delivery Units) (such Shares or Termination Delivery Units, “Restricted Shares”) for any reason other than solely as a result of Bank being an “affiliate” (as defined in Rule 144 under the Securities Act) of Counterparty (where such affiliation did not arise from Bank being a party to the Transaction), then the provisions set forth in this Section 8(bdelivery of such Restricted Shares shall be effected pursuant to either clause (i) shall apply. At or (ii) below at the election of Issuer Counterparty, unless waived by notice to Dealer within one Scheduled Trading Day after Bank. Notwithstanding the relevant delivery obligation arisesforegoing, but solely in respect of any event at least one Scheduled Trading Day Number of Warrants exercised or deemed exercised on any Expiration Date, Counterparty shall elect, prior to the date on first Settlement Date for the first Expiration Date, a Private Placement Settlement (as defined below) or Registration Settlement (as defined below) for all deliveries of Restricted Shares for all such Expiration Dates which election shall be applicable to all Settlement Dates for such delivery obligation is due, either (A) all Delivered Securities delivered by Issuer to Dealer shall be, at the time of such delivery, covered by an effective registration statement of Issuer for immediate resale by Dealer (such registration statement Warrants and the corresponding prospectus procedures in clause (the “Prospectus”) (including, without limitation, any sections describing the plan of distribution) in form and content commercially reasonably satisfactory to Dealeri) or clause (Bii) Issuer below shall deliver additional Delivered Securities so that apply for all such delivered Restricted Shares on an aggregate basis commencing after the value of final Settlement Date for such Delivered Securities, as determined by the Warrants. The Calculation Agent shall make reasonable adjustments to settlement terms and provisions under this Confirmation to reflect an appropriate liquidity discount, equals the value of the number of Delivered Securities that would otherwise be deliverable if a single Private Placement or Registered Settlement for such Delivered Securities were freely tradeable (without prospectus delivery) upon receipt by Dealer (such value, the “Freely Tradeable Value”); provided that, for the avoidance of doubt, Issuer may not make the election described in this clause (B) if, as of the date of its election, it has not complied with the requirements of Section 8(b)(iv) below. (For the avoidance of doubt, as used in this paragraph (b) only, the term “Issuer” shall mean the issuer of the relevant securities, as the context shall requireaggregate Restricted Shares delivered hereunder.)

Registration/Private Placement Procedures. (i) If, in the good faith and faith, reasonable judgment of Dealer based on the advice of counsel, for any reason, any Shares or any securities of Issuer or its affiliates comprising any Share Termination Delivery Units deliverable to Dealer hereunder (hereunder, for any such Shares or securitiesreason, “Delivered Securities”) would not be immediately freely transferable by in the hands of Dealer under Rule 144 under the Securities Act, then the provisions set forth in this Section 8(b) shall apply. At the election of Issuer by notice subject to Dealer within one Scheduled Trading Day after the relevant delivery obligation arises, but in any event at least one Scheduled Trading Day prior to the date applicable restrictions on which such delivery obligation is due, either (A) all Delivered Securities delivered by Issuer to Dealer shall be, at the time of such delivery, covered by an effective registration statement of Issuer for immediate resale by Dealer (such registration statement and the corresponding prospectus (the “Prospectus”) transfer (including, without limitation, any sections describing registration or qualification requirement or prospectus delivery requirement for such Shares or Termination Delivery Units) pursuant to any applicable federal or state securities law or otherwise (including, without limitation, any such requirement arising under Section 5 of the plan Securities Act as a result of distributionsuch Shares or Termination Delivery Units being “restricted securities”, as such term is defined in Rule 144) in form and content commercially reasonably satisfactory (such Shares or Termination Delivery Units, “Restricted Shares”), then delivery of such Restricted Shares shall be effected pursuant to Dealereither clause (i) or (Bii) Issuer of Annex A hereto at the sole election of Counterparty, unless waived by Dealer. Notwithstanding the foregoing, solely in respect of any Warrants exercised or deemed exercised on any Exercise Date, Counterparty shall deliver additional Delivered Securities so that elect, prior to the value of such Delivered Securities, as determined by the Calculation Agent to reflect an appropriate liquidity discount, equals the value of the number of Delivered Securities that would otherwise be deliverable if such Delivered Securities were freely tradeable (without prospectus delivery) upon receipt by Dealer (such value, the “Freely Tradeable Value”); provided that, first Settlement Date for the avoidance of doubtfirst Exercise Date (or, Issuer may not make if later, prior to the election described in this clause (B) if, as of third Scheduled Trading Day following the date of its electionnotification by Dealer of the need for such settlement procedures), it has a Private Placement Settlement (as defined in Annex A hereto) or Registration Settlement (as defined in Annex A hereto) for all deliveries of Restricted Shares for all such Exercise Dates which election shall be applicable to all Settlement Dates for such Warrants and the procedures in clause (i) or clause (ii) of Annex A hereto shall apply for all such delivered Restricted Shares on an aggregate basis commencing after the final Settlement Date for such Warrants. The Calculation Agent shall make commercially reasonable adjustments to settlement terms and provisions under this Confirmation to reflect a single Private Placement Settlement or Registration Settlement for such aggregate Restricted Shares delivered hereunder. If the Private Placement Settlement or the Registration Settlement shall not complied with the requirements be effected as set forth in clauses (i) or (ii) of Section 8(b)(iv) below. (For the avoidance of doubtAnnex A, as used in this paragraph (b) onlyapplicable, then failure to effect such Private Placement Settlement or such Registration Settlement shall constitute an Event of Default with respect to which Counterparty shall be the term “Issuer” shall mean the issuer of the relevant securities, as the context shall requireDefaulting Party.)

Registration/Private Placement Procedures. (i) If, in the good faith and reasonable judgment opinion of Dealer based on the advice Wachovia, following any delivery of counsel, for any reason, any Shares or any securities of Issuer or its affiliates comprising any Share Termination Delivery Units deliverable to Dealer hereunder (any Wachovia hereunder, such Shares or securities, “Delivered Securities”) Termination Delivery Units would not be immediately freely transferable by Dealer under Rule 144 under in the Securities Act, then the provisions set forth in this Section 8(b) shall apply. At the election hands of Issuer by notice Wachovia subject to Dealer within one Scheduled Trading Day after the relevant any applicable restrictions with respect to any registration or qualification requirement or prospectus delivery obligation arises, but in requirement for such Shares or Termination Delivery Units pursuant to any event at least one Scheduled Trading Day prior to the date on which such delivery obligation is due, either (A) all Delivered Securities delivered by Issuer to Dealer shall be, at the time of such delivery, covered by an effective registration statement of Issuer for immediate resale by Dealer (such registration statement and the corresponding prospectus (the “Prospectus”) applicable federal or state securities law (including, without limitation, any sections describing such requirement arising under Section 5 of the plan Securities Act as a result of distributionsuch Shares or Termination Delivery Units being “restricted securities”, as such term is defined in Rule 144) in form and content commercially reasonably satisfactory (such Shares or Termination Delivery Units, “Restricted Shares”), then delivery of such Restricted Shares shall be effected pursuant to Dealereither clause (i) or (Bii) Issuer of Annex A hereto at the election of Counterparty, unless waived by Wachovia. Notwithstanding the foregoing, solely in respect of any Warrants exercised or deemed exercised on any Exercise Date, Counterparty shall deliver additional Delivered Securities so that elect, prior to the value first Settlement Date for the first Exercise Date, a Private Placement Settlement (as defined in Annex A hereto) or Registration Settlement (as defined in Annex A hereto) for all deliveries of Restricted Shares for all such Delivered SecuritiesExercise Dates which election shall be applicable to all Settlement Dates for such Warrants and the procedures in clause (i) or clause (ii) of Annex A hereto shall apply for all such delivered Restricted Shares on an aggregate basis commencing after the final Settlement Date for such Warrants. The Calculation Agent shall make reasonable adjustments to settlement terms and provisions under this Confirmation to reflect a single Private Placement Settlement or Registration Settlement for such aggregate Restricted Shares delivered hereunder. If the Private Placement Settlement or the Registration Settlement shall not be effected as set forth in clauses (i) or (ii) of Annex A, as determined by applicable, then failure to effect such Private Placement Settlement or such Registration Settlement shall constitute an Event of Default with respect to which Counterparty shall be the Calculation Agent to reflect an appropriate liquidity discount, equals the value of the number of Delivered Securities that would otherwise be deliverable if such Delivered Securities were freely tradeable (without prospectus delivery) upon receipt by Dealer (such value, the “Freely Tradeable Value”); provided that, for the avoidance of doubt, Issuer may not make the election described in this clause (B) if, as of the date of its election, it has not complied with the requirements of Section 8(b)(iv) below. (For the avoidance of doubt, as used in this paragraph (b) only, the term “Issuer” shall mean the issuer of the relevant securities, as the context shall requireDefaulting Party.)

Registration/Private Placement Procedures. (i) If, in the good faith and reasonable judgment of Dealer Dealer, based on the advice of counsel, for following any reason, any delivery of Shares or any securities of Issuer or its affiliates comprising any Share Termination Delivery Units deliverable Property to Dealer hereunder (any hereunder, such Shares or Share Termination Delivery Property would be in the hands of Dealer subject to any applicable restrictions with respect to any registration or qualification requirement or prospectus delivery requirement for such Shares or Share Termination Delivery Property pursuant to any applicable federal or state securities law (including, without limitation, any such requirement arising under Section 5 of the Securities Act as a result of such Shares or Share Termination Delivery Property being “restricted securities”, “Delivered Securities”) would not be immediately freely transferable by Dealer under as such term is defined in Rule 144 under the Securities Act, or as a result of the sale of such Shares or Share Termination Delivery Property being subject to paragraph (c) of Rule 145 under the Securities Act) (such Shares or Share Termination Delivery Property, “Restricted Shares”), then delivery of such Restricted Shares shall be effected pursuant to either clause (i) or (ii) below at the provisions election of Company, unless Dealer waives the need for registration/private placement procedures set forth in (i) and (ii) below. Notwithstanding the foregoing, solely in respect of any Daily Number of Warrants exercised or deemed exercised on any Expiration Date, if Dealer notifies Company of the need for registration or private placement procedures set forth in this Section 8(b) 9(k), then Company shall apply. At the election of Issuer by notice to Dealer within one Scheduled Trading Day after the relevant delivery obligation ariseselect, but in any event at least one Scheduled Trading Day prior to the date on first Settlement Date for the first applicable Expiration Date, a Private Placement Settlement or Registration Settlement for all deliveries of Restricted Shares for all such Expiration Dates which election shall be applicable to all remaining Settlement Dates for such delivery obligation is due, either (A) all Delivered Securities delivered by Issuer to Dealer shall be, at the time of such delivery, covered by an effective registration statement of Issuer for immediate resale by Dealer (such registration statement Warrants and the corresponding prospectus procedures in clause (the “Prospectus”) (including, without limitation, any sections describing the plan of distribution) in form and content commercially reasonably satisfactory to Dealeri) or clause (Bii) Issuer below shall deliver additional Delivered Securities so that apply for all such delivered Restricted Shares on an aggregate basis commencing after the value of final Settlement Date for such Delivered Securities, as determined by the Warrants. The Calculation Agent shall make reasonable adjustments to settlement terms and provisions under this Confirmation to reflect an appropriate liquidity discount, equals the value of the number of Delivered Securities that would otherwise be deliverable if a single Private Placement or Registration Settlement for such Delivered Securities were freely tradeable (without prospectus delivery) upon receipt by Dealer (such value, the “Freely Tradeable Value”); provided that, for the avoidance of doubt, Issuer may not make the election described in this clause (B) if, as of the date of its election, it has not complied with the requirements of Section 8(b)(iv) belowaggregate Restricted Shares delivered hereunder. (For the avoidance of doubt, these adjustments will only be commercially reasonable in nature (such as used to consider, by way of illustration only and not in this paragraph (bany way limitation, changes in volatility, expected dividends, stock loan rate or liquidity relevant to the Shares and the ability to maintain a commercially reasonable hedge position in the Shares) only, the term “Issuer” shall mean the issuer of the relevant securities, as the context shall requireand will not impact Company’s unilateral right to settle in Shares.)

Registration/Private Placement Procedures. (i) If, in the good faith and faith, reasonable judgment opinion of Dealer Dealer, based on the advice of from counsel, for following any reason, any delivery of Shares or any securities of Issuer or its affiliates comprising any Share Termination Delivery Units deliverable Property to Dealer hereunder (any hereunder, such Shares or Share Termination Delivery Property would be in the hands of Dealer subject to any applicable restrictions with respect to any registration or qualification requirement or prospectus delivery requirement for such Shares or Share Termination Delivery Property pursuant to any applicable federal or state securities law (including, without limitation, any such requirement arising under Section 5 of the Securities Act as a result of such Shares or Share Termination Delivery Property being “restricted securities”, “Delivered Securities”) would not be immediately freely transferable by Dealer under as such term is defined in Rule 144 under the Securities Act, or as a result of the sale of such Shares or Share Termination Delivery Property being subject to paragraph (c) of Rule 145 under the Securities Act) (such Shares or Share Termination Delivery Property, “Restricted Shares”), then delivery of such Restricted Shares shall be effected pursuant to either clause (i) or (ii) below at the provisions election of Company, unless Dealer waives the need for registration/private placement procedures set forth in (i) and (ii) below. Notwithstanding the foregoing, solely in respect of any Daily Number of Warrants exercised or deemed exercised on any Expiration Date, if Dealer notifies Company of the need for registration or private placement procedures set forth in this Section 8(b9(k), then Company shall elect, prior to the later of (x) shall apply. At the election of Issuer by notice to Dealer within one first Settlement Date for the first applicable Expiration Date and (y) the third Scheduled Trading Day after the relevant delivery obligation arises, but in any event at least one Scheduled Trading Day prior to the date on which such delivery obligation is due, either (A) all Delivered Securities delivered by Issuer to Dealer shall be, at the time of such delivery, covered by an effective registration statement of Issuer for immediate resale by Dealer (such registration statement and the corresponding prospectus (the “Prospectus”) (including, without limitation, any sections describing the plan of distribution) in form and content commercially reasonably satisfactory to Dealer) or (B) Issuer shall deliver additional Delivered Securities so that the value of such Delivered Securities, as determined by the Calculation Agent to reflect an appropriate liquidity discount, equals the value of the number of Delivered Securities that would otherwise be deliverable if such Delivered Securities were freely tradeable (without prospectus delivery) upon receipt by Dealer (such value, the “Freely Tradeable Value”); provided that, for the avoidance of doubt, Issuer may not make the election described in this clause (B) if, as of following the date of its electionsuch notification, it has not complied a Private Placement Settlement or Registration Settlement, consistent with transactions of a similar size, for all deliveries of Restricted Shares for all such Expiration Dates which election shall be applicable to all remaining Settlement Dates for such Warrants and the requirements procedures in clause (i) or clause (ii) below shall apply for all such delivered Restricted Shares on an aggregate basis commencing after the final Settlement Date for such Warrants. The Calculation Agent shall make commercially reasonable adjustments, consistent with transactions of Section 8(b)(iv) below. (For the avoidance of doubta similar size, as used in to settlement terms and provisions under this paragraph (b) only, the term “Issuer” shall mean the issuer of the relevant securities, as the context shall requireConfirmation to reflect a single Private Placement or Registration Settlement for such aggregate Restricted Shares delivered hereunder.)

Registration/Private Placement Procedures. (i) If, in the good faith and reasonable judgment opinion of Dealer and based on the advice of counsel, for following any reason, any delivery of Shares or any securities of Issuer or its affiliates comprising any Share Termination Delivery Units deliverable Property to Dealer hereunder (any hereunder, such Shares or Share Termination Delivery Property would be in the hands of Dealer subject to any applicable restrictions with respect to any registration or qualification requirement or prospectus delivery requirement for such Shares or Share Termination Delivery Property pursuant to any applicable federal or state securities law (including, without limitation, any such requirement arising under Section 5 of the Securities Act as a result of such Shares or Share Termination Delivery Property being “restricted securities”, “Delivered Securities”) would not be immediately freely transferable by Dealer under as such term is defined in Rule 144 under the Securities Act, or as a result of the sale of such Shares or Share Termination Delivery Property being subject to paragraph (c) of Rule 145 under the Securities Act) (such Shares or Share Termination Delivery Property, “Restricted Shares”), then delivery of such Restricted Shares shall be effected pursuant to either clause (i) or (ii) below at the provisions election of Company, unless Dealer waives the need for registration/private placement procedures set forth in(i) and (ii) below. Notwithstanding the foregoing, solely in respect of any Daily Number of Warrants exercised or deemed exercised on any Expiration Date, if Dealer notifies Company of the need for registration or private placement procedures set forth in this Section 8(b9(k), then Company shall elect, prior to the later of (x) shall apply. At the election of Issuer by notice to Dealer within one first Settlement Date for the first applicable Expiration Date and (y) the third Scheduled Trading Day after the relevant delivery obligation arises, but in any event at least one Scheduled Trading Day prior to the date on which such delivery obligation is due, either (A) all Delivered Securities delivered by Issuer to Dealer shall be, at the time of such delivery, covered by an effective registration statement of Issuer for immediate resale by Dealer (such registration statement and the corresponding prospectus (the “Prospectus”) (including, without limitation, any sections describing the plan of distribution) in form and content commercially reasonably satisfactory to Dealer) or (B) Issuer shall deliver additional Delivered Securities so that the value of such Delivered Securities, as determined by the Calculation Agent to reflect an appropriate liquidity discount, equals the value of the number of Delivered Securities that would otherwise be deliverable if such Delivered Securities were freely tradeable (without prospectus delivery) upon receipt by Dealer (such value, the “Freely Tradeable Value”); provided that, for the avoidance of doubt, Issuer may not make the election described in this clause (B) if, as of following the date of its electionsuch notification, it has not complied with a Private Placement Settlement or Registration Settlement for all deliveries of Restricted Shares for all such Expiration Dates which election shall be applicable to all remaining Settlement Dates for such Warrants and the requirements of Section 8(b)(ivprocedures in clause (i) belowor clause (ii) below shall apply for all such ​ ​ delivered Restricted Shares on an aggregate basis commencing after the final Settlement Date for such Warrants. (For the avoidance of doubt, as used in The Calculation Agent shall make commercially reasonable adjustments to settlement terms and provisions under this paragraph (b) only, the term “Issuer” shall mean the issuer of the relevant securities, as the context shall requireConfirmation to reflect a single Private Placement or Registration Settlement for such aggregate Restricted Shares delivered hereunder.)

Registration/Private Placement Procedures. (i) If, in the good faith and reasonable judgment opinion of Dealer based on the advice Xxxxxx Xxxxxxx, following any delivery of counsel, for any reason, any Shares or any securities of Issuer or its affiliates comprising any Share Termination Delivery Units deliverable to Dealer hereunder (any Xxxxxx Xxxxxxx hereunder, such Shares or Termination Delivery Units would be in the hands of Xxxxxx Xxxxxxx subject to any applicable restrictions with respect to any registration or qualification requirement or prospectus delivery requirement for such Shares or Termination Delivery Units pursuant to any applicable federal or state securities law (including, without limitation, any such requirement arising under Section 5 of the Securities Act as a result of such Shares or Termination Delivery Units being "restricted securities", “Delivered Securities”) would not be immediately freely transferable by Dealer under as such term is defined in Rule 144 under the Securities Act, or as a result of the sale of such Shares or Termination Delivery Units being subject to paragraph (c) of Rule 145 under the Securities Act) (such Shares or Termination Delivery Units, "Restricted Shares"), then delivery of such Restricted Shares shall be effected pursuant to either clause (i) or (ii) of Annex A hereto at the election of Counterparty, unless waived by Xxxxxx Xxxxxxx. Notwithstanding the foregoing, solely in respect of any Warrants exercised or deemed exercised on any Exercise Date, Counterparty shall elect, prior to the first Settlement Date for the first Exercise Date, a Private Placement Settlement (as defined in Annex A hereto) or Registration Settlement (as defined in Annex A hereto) for all deliveries of Restricted Shares for all such Exercise Dates which election shall be applicable to all Settlement Dates for such Warrants and the procedures in clause (i) or clause (ii) of Annex A hereto shall apply for all such delivered Restricted Shares on an aggregate basis commencing after the final Settlement Date for such Warrants. The Calculation Agent shall make reasonable adjustments to settlement terms and provisions under this Confirmation to reflect a single Private Placement Settlement or Registration Settlement for such aggregate Restricted Shares delivered hereunder. If the Private Placement Settlement or the Registration Settlement shall not be effected as set forth in this Section 8(b) shall apply. At the election of Issuer by notice to Dealer within one Scheduled Trading Day after the relevant delivery obligation arises, but in any event at least one Scheduled Trading Day prior to the date on which such delivery obligation is due, either clauses (A) all Delivered Securities delivered by Issuer to Dealer shall be, at the time of such delivery, covered by an effective registration statement of Issuer for immediate resale by Dealer (such registration statement and the corresponding prospectus (the “Prospectus”) (including, without limitation, any sections describing the plan of distribution) in form and content commercially reasonably satisfactory to Dealeri) or (Bii) Issuer shall deliver additional Delivered Securities so that the value of such Delivered SecuritiesAnnex A, as determined by applicable, then failure to effect such Private Placement Settlement or such Registration Settlement shall constitute an Event of Default with respect to which Counterparty shall be the Calculation Agent to reflect an appropriate liquidity discount, equals the value of the number of Delivered Securities that would otherwise be deliverable if such Delivered Securities were freely tradeable (without prospectus delivery) upon receipt by Dealer (such value, the “Freely Tradeable Value”); provided that, for the avoidance of doubt, Issuer may not make the election described in this clause (B) if, as of the date of its election, it has not complied with the requirements of Section 8(b)(iv) below. (For the avoidance of doubt, as used in this paragraph (b) only, the term “Issuer” shall mean the issuer of the relevant securities, as the context shall requireDefaulting Party.)