Common use of Seller Purchases Clause in Contracts

Seller Purchases. (a) The parties acknowledge that the deliveries of shares of Common Stock contemplated by Section II will result in the Seller having an outstanding short position with respect to the Common Stock. During the Pricing Period (the “Relevant Period”) or, if applicable, the Valuation Period, the Seller or its affiliates may effect transactions in shares of Common Stock or enter into derivative transactions relating to the Common Stock. Notwithstanding the foregoing, the Seller shall not be required to purchase any shares of Common Stock during the Relevant Period or, if applicable, the Valuation Period. Any purchases of Common Stock, or other transactions relating to Common Stock, by the Seller or its affiliates during the Relevant Period or, if applicable, the Valuation Period shall be conducted independently of the Company. It is the intent of the parties that the Transaction comply with the requirements of Rule 10b5-1(c)(1)(i)(B) of the Exchange Act, and the parties agree that this Letter Agreement shall be interpreted in a manner to comply with the requirements of Rule 10b5-1(c), and the Company shall take no action that results in the Transaction not so complying with such requirements. Without limiting the generality of the preceding sentence, the Company acknowledges and agrees that (A) the Company does not have, and shall not attempt to exercise, any influence over how, when or whether the Seller or its affiliates effect any purchases of shares of Common Stock or other transactions relating to the Common Stock in connection with the Transaction, (B) during the Relevant Period and, if applicable, the Valuation Period, neither the Company nor its officers or employees shall, directly or indirectly, communicate any material non-public information regarding the Company or the Common Stock to any employee of the Seller or its affiliates responsible for trading the Common Stock in connection with the transactions contemplated hereby, (C) the Company is entering into the Transaction in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b-5 under the Exchange Act and (D) the Company will not alter or deviate from this Letter Agreement or enter into or alter a corresponding hedging transaction with respect to the shares of Common Stock. The Company also acknowledges and agrees that any amendment, modification or waiver of this Letter Agreement must be effected in accordance with the requirements for the amendment of a plan within the meaning of Rule 10b5-1(c) under the Exchange Act. Without limiting the generality of the foregoing, any such amendment, modification or waiver shall be made in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b-5 under the Exchange Act, and no such amendment, modification or waiver shall be made on the basis of, or at any time at which the Company or any officer or director of the Company is aware of, any material non-public information regarding the Company or the Common Stock. (i) The Company represents and warrants that neither the Company nor any agent acting for the Company has, during each of the four full calendar weeks prior to the date hereof, and during the calendar week during which the Purchase Date occurs, entered into a purchase by or for itself or for any of its affiliated purchasers of a block of Common Stock (“affiliated purchaser” and “blocks” each as defined in Rule 10b-18). (ii) During the Relevant Period and, if applicable, the Valuation Period, the Seller will use good faith efforts to make all open market purchases of Common Stock on a Relevant Day in connection with this Transaction in a manner that would comply with the limitations set forth in clauses (b)(2), (b)(3), (b)(4) and (c) of Rule 10b-18 as if such rule were applicable to such purchases. (c) During the Relevant Period and, if applicable, the Valuation Period, the Company shall (i) notify the Seller prior to the opening of trading in the Common Stock on any day on which the Company makes, or expects to be made, any public announcement (as defined in Rule 165(f) under the Securities Act) of any merger, acquisition, or similar transaction involving a recapitalization relating to the Company (other than any such transaction in which the consideration consists solely of cash and there is no valuation period), (ii) promptly notify the Seller following any such announcement that such announcement has been made, and (iii) promptly deliver to the Seller following the making of any such announcement a certificate indicating (A) the Company’s average daily Rule 10b-18 purchases (as defined in Rule 10b-18) during the three full calendar months preceding the date of the announcement of such transaction and (B) the Company’s block purchases (as defined in Rule 10b-18) effected pursuant to paragraph (b)(4) of Rule 10b-18 during the three full calendar months preceding the date of the announcement of such transaction. In addition, the Company shall promptly notify the Seller of the earlier to occur of the completion of such transaction and the completion of the vote by target shareholders. The Company acknowledges that any such public announcement may cause the Pricing Period or Valuation Period to be suspended pursuant to Section III(d). Accordingly, the Company acknowledges that its actions in relation to any such announcement or transaction must comply with the standards set forth in Section III(a). (d) In the event that the Seller reasonably concludes in good faith that it is appropriate with respect to any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by the Seller generally), for it to refrain from engaging in or to limit its hedging activities in connection with the Transaction on any Relevant Pricing Day during the Relevant Period and, if applicable, the Valuation Period (each such event, a “Regulatory Disruption”), such day shall be deemed to be a Disrupted Day. In the event of a Disrupted Day (regardless of the cause), the Seller may adjust the terms of the Transaction as in its good faith judgment it deems appropriate under the circumstances. The Seller shall promptly notify the Company upon exercising its rights pursuant to this Section III(d) and shall subsequently notify the Company in writing on the day the Seller believes that it may resume its hedging activities. The Seller shall not be required to communicate to the Company the reason for the Seller’s exercise of its rights pursuant to this Section III(d) if the Seller reasonably determines in good faith that disclosing such reason may result in a violation of any legal, regulatory, or self-regulatory requirements or related policies and procedures.

Seller Purchases. (a) The parties acknowledge Initial Shares may be sold short to the Company. It is understood that during the deliveries of Averaging Period the Seller will purchase shares of Common Stock contemplated by Section II will result in connection with this Letter Agreement, which shares may be used to cover all or a portion of such short sale and, if the Settlement Amount is greater than zero, during the Valuation Period the Seller having an outstanding short position with respect to the Common Stock. During the Pricing Period (the “Relevant Period”) or, if applicable, the Valuation Period, the Seller or its affiliates may effect transactions in will purchase shares of Common Stock or enter into derivative transactions relating to fulfill its obligations, if any, to deliver Refund Shares to the Common StockCompany pursuant to Section 5(a)(i). Notwithstanding the foregoing, the Seller shall not be required to purchase any shares of Common Stock during the Relevant Period or, if applicable, the Valuation Period. Any Such purchases of Common Stock, or other transactions relating to Common Stock, by the Seller or its affiliates during the Relevant Period or, if applicable, the Valuation Period shall will be conducted independently of the Company. The timing of such purchases by the Seller, the number of shares purchased by the Seller on any day, the price paid per share of Common Stock pursuant to such purchases and the manner in which such purchases are made, including without limitation whether such purchases are made on any securities exchange or privately, shall be within the absolute discretion of the Seller. The Seller agrees to effect such purchases of Common Stock in a manner that would, if the Seller were the Company or an affiliated purchaser of the Company, be subject to the safe harbor provided by Rule 10b-18(b) or otherwise in a manner that the Seller reasonably believes is in compliance with applicable requirements. For this reason, the Company shall, at least one day prior to the first day of the Averaging Period, and, if the Settlement Amount is greater than zero, prior to the first day of the Valuation Period, notify the Seller of the total number of shares of Common Stock purchased in Rule 10b-18 purchases of blocks by or for the Company or any of its affiliated purchasers during each of the four calendar weeks preceding the first day of the Averaging Period (“Rule 10b-18 purchase”, “blocks” and “affiliated purchaser” each being used as defined in Rule 10b-18), which notice shall be substantially in the form set forth as Appendix B hereto. It is the intent of the parties that the Transaction this transaction comply with the requirements of Rule 10b5-1(c)(1)(i)(B1(c)(i)(B) of the Exchange Act, and the parties agree that (i) this Letter Agreement shall be interpreted in a manner to comply with the requirements of Rule 10b5-1(c), ) and the Company (ii) they shall take no action that results in the Transaction this transaction not so complying with such requirements. Without limiting the generality of the preceding sentence, the Company acknowledges and agrees that (A) the Company does not have, and shall not attempt to exercise, any influence over how, when or whether the Seller or its affiliates effect effects any purchases of shares of Common Stock or other transactions relating to the Common Stock in connection with the Transactionthis Letter Agreement, (B) during the Relevant Period and, if applicable, the Valuation Period, neither the Company nor its officers or employees shall, directly or indirectly, communicate any material non-public information regarding the Company or the Common Stock to any employee of the Seller or its affiliates responsible for trading the Common Stock in connection with the transactions contemplated hereby, (C) the Company is entering into the Transaction this Letter Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of compliance with federal securities laws including, without limitation, Rule 10b-5 promulgated under the Exchange Act and (Dc) the Company will not alter or deviate from this Letter Agreement or enter into or alter a corresponding hedging transaction with respect to the shares of Common Stock. The Company also acknowledges and agrees that any amendment, modification or waiver of this Letter Agreement must be effected in accordance with the requirements for the amendment of a plan within the meaning of Rule 10b5-1(c) under the Exchange Act. Without limiting the generality of the foregoing, any such amendment, modification or waiver shall be made in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b-5 under the Exchange Act, and no such amendment, modification or waiver shall be made on the basis of, or at any time at which the Company or any officer or director of the Company is aware of, any material non-public information regarding the Company or the Common Stock. (i) The Company represents and warrants that neither the Company nor any agent acting for the Company has, during each of the four full calendar weeks prior to the date hereof, and during the calendar week during which the Purchase Date occurs, entered into a purchase by or for itself or for any of its affiliated purchasers of a block of Common Stock (“affiliated purchaser” and “blocks” each as defined in Rule 10b-18). (ii) During the Relevant Period and, if applicable, the Valuation Period, the Seller will use good faith efforts to make all open market purchases of Common Stock on a Relevant Day in connection with this Transaction in a manner that would comply with the limitations set forth in clauses (b)(2), (b)(3), (b)(4) and (c) of Rule 10b-18 as if such rule were applicable to such purchases. (c) During the Relevant Period and, if applicable, the Valuation Period, the Company shall (i) notify the Seller prior to the opening of trading in the Common Stock on any day on which the Company makes, or expects to be made, any public announcement (as defined in Rule 165(f) under the Securities Act) of any merger, acquisition, or similar transaction involving a recapitalization relating to the Company (other than any such transaction in which the consideration consists solely of cash and there is no valuation period), (ii) promptly notify the Seller following any such announcement that such announcement has been made, and (iii) promptly deliver to the Seller following the making of any such announcement a certificate indicating (A) the Company’s average daily Rule 10b-18 purchases (as defined in Rule 10b-18) during the three full calendar months preceding the date of the announcement of such transaction and (B) the Company’s block purchases (as defined in Rule 10b-18) effected pursuant to paragraph (b)(4) of Rule 10b-18 during the three full calendar months preceding the date of the announcement of such transaction. In addition, the Company shall promptly notify the Seller of the earlier to occur of the completion of such transaction and the completion of the vote by target shareholders. The Company acknowledges that any such public announcement may cause the Pricing Period or Valuation Period to be suspended pursuant to Section III(d). Accordingly, the Company acknowledges that its actions in relation to any such announcement or transaction must comply with the standards set forth in Section III(a). (db) In the event that the Seller reasonably concludes Seller, in good faith its discretion, determines that it is appropriate with respect regard to any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by the Seller generallySeller, and including without limitation Rule 10b-18, “Requirements”), for it the Seller to refrain from engaging in purchasing Common Stock or to limit its hedging activities in connection with purchase fewer than the Transaction minimum Daily Share Amount of Common Stock on any Relevant Pricing Trading Day during the Relevant Averaging Period andor, if applicablethe Settlement Amount is greater than zero, the Valuation Period (each such eventPeriod, a “Regulatory Disruption”)then the Seller may, in its discretion, elect that the minimum Daily Share Amount shall be reduced for such day shall be deemed to be a Disrupted Day. In the event of a Disrupted Day (regardless of the cause), an amount determined by the Seller may adjust the terms of the Transaction as in its good faith judgment it deems discretion as appropriate under the circumstanceswith regard to any Requirements. The Seller shall promptly notify the Company upon exercising its the exercise of the Seller’s rights pursuant to this Section III(d3(b) and shall subsequently notify the Company in writing on the day the Seller believes that it may resume its hedging activitiesthe circumstances giving rise to such exercise have changed. The Seller shall not be required to communicate to the Company the reason for the Seller’s exercise of its rights pursuant to this Section III(d3(b). (c) The Company shall not engage in a distribution of Common Stock for purposes of Regulation M during the Averaging Period and, if the Seller reasonably determines in good faith that disclosing such reason may result in a violation of any legalSettlement Amount is greater than zero, regulatory, or self-regulatory requirements or related policies and proceduresthe Valuation Period.

Seller Purchases. (a) The parties acknowledge Initial Shares may be sold short to the Company. It is understood that during the deliveries of Averaging Period the Seller may purchase shares of Common Stock contemplated by Section II will result in connection with this Letter Agreement, which shares may be used to cover all or a portion of such short sale and, if the Settlement Amount is greater than zero, during the Valuation Period the Seller having an outstanding short position with respect to the Common Stock. During the Pricing Period (the “Relevant Period”) or, if applicable, the Valuation Period, the Seller or its affiliates may effect transactions in will purchase shares of Common Stock or enter into derivative transactions relating to fulfill its obligations to deliver Refund Shares to the Common StockCompany pursuant to Section 5. Notwithstanding the foregoing, the Seller shall not be required to purchase any shares of Common Stock during the Relevant Period or, if applicable, the Valuation Period. Any Such purchases of Common Stock, or other transactions relating to Common Stock, by the Seller or its affiliates during the Relevant Period or, if applicable, the Valuation Period shall will be conducted independently of the Company. The timing of such purchases by the Seller, the number of shares purchased by the Seller on any day, the price paid per share of Common Stock pursuant to such purchases and the manner in which such purchases are made, including without limitation whether such purchases are made on any securities exchange or privately, shall be within the absolute discretion of the Seller. The Seller shall use commercially reasonable efforts to effect such purchases of Common Stock in a manner that would, if the Seller were the Company or an affiliated purchaser of the Company, be subject to the provisions contained in Rule 10b-18(b)(1), (2) and (3). It is the intent of the parties that the Transaction this transaction comply with the requirements of Rule 10b5-1(c)(1)(i)(B) of the Exchange Act, and the parties agree that this Letter Agreement shall be interpreted in a manner to comply with the requirements of Rule 10b5-1(c), and the Company shall take no action that results in the Transaction not so complying with such requirements. Without limiting the generality of the preceding sentence, the Company acknowledges and agrees that (A) the Company does not have, and shall not attempt to exercise, any influence over how, when or whether the Seller or its affiliates effect effects any purchases of shares of Common Stock or other transactions relating to the Common Stock in connection with the Transactionthis Letter Agreement, (B) during the Relevant Period and, if applicable, period beginning on (but excluding) the date of this Letter Agreement and ending on the last day of the Valuation Period, if any, neither the Company nor its officers or employees shall, directly or indirectly, communicate any material non-public information regarding the Company or the Common Stock to any employee of the Seller or its affiliates responsible for trading the Common Stock in connection with the transactions contemplated hereby, who currently include the individuals specified in Annex A hereto, (C) the Company is entering into the Transaction this Letter Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of compliance with federal securities laws including, without limitation, Rule 10b-5 promulgated under the Exchange Act and (D) the Company will not alter or deviate from this Letter Agreement or enter into or alter a corresponding hedging transaction with respect to the shares of Common Stock. The Company also acknowledges and agrees that any amendment, modification modification, waiver or waiver termination of this Letter Agreement must be effected in accordance with the requirements for the amendment or termination of a plan within the meaning of “plan” as defined in Rule 10b5-1(c) under the Exchange Act. Without limiting the generality of the foregoing, any such amendment, modification modification, waiver or waiver termination shall be made in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b-5 under the Exchange Act, and no such amendment, modification modification, waiver or waiver termination shall be made on the basis of, or at any time at which the Company or any officer or director of the Company is aware of, of any material non-public nonpublic information regarding the Company or the Common Stock. (ib) In the event that the Seller, in its discretion, determines that it is appropriate with regard to any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by the Seller, and including without limitation Rule 10b-18, Rule 10b-5, Regulation 13D-G and Regulation 14E under the Exchange Act, “Requirements”), for the Seller to refrain from purchasing Common Stock or to purchase fewer than the number of shares of Common Stock that the Seller would otherwise purchase on any Trading Day during the Averaging Period or, if the Settlement Amount is greater than zero, the Valuation Period, then the Seller may, in its discretion, elect that the Averaging Period or the Valuation Period, as the case may be, be suspended as appropriate with regard to any Requirements. The Seller shall notify the Company upon the exercise of the Seller’s rights pursuant to this Section 3(b) and shall subsequently notify the Company on the day the Seller believes that the circumstances giving rise to such exercise have changed. If the Averaging Period or the Valuation Period is suspended by the Seller pursuant to this Section 3(b), at the end of such suspension the Seller shall determine the number of Trading Days remaining in the Averaging Period or the Valuation Period, as the case may be, which number shall not exceed the Remaining Scheduled Days as of the time of such suspension. (c) The Company represents and warrants agrees that neither the Company nor any agent acting of its affiliates or agents shall take any action that would cause Regulation M to be applicable to any purchases of Common Stock, or any security for which the Common Stock is a reference security (as defined in Regulation M), by the Company or any of its affiliated purchasers (as defined in Regulation M) during the Averaging Period or, if the Settlement Amount is greater than zero, the Valuation Period. (d) The Company shall, at least one day prior to the first day of the Averaging Period, notify the Seller of the total number of shares of Common Stock purchased in Rule 10b-18 purchases of blocks pursuant to the once-a-week block exception contained in Rule 10b-18(b)(4) by or for the Company has, or any of its affiliated purchasers during each of the four full calendar weeks prior to preceding the date hereof, first day of the Averaging Period and during the calendar week during in which the Purchase Date occursfirst day of the Averaging Period occurs (“Rule 10b-18 purchase”, entered into a purchase by or for itself or for any of its affiliated purchasers of a block of Common Stock (“blocks” and “affiliated purchaser” and “blocks” each being used as defined in Rule 10b-18), which notice shall be substantially in the form set forth as Appendix B hereto. (iie) During From the Relevant date hereof through the last day of the Averaging Period andor, if applicablethe Settlement Amount is greater than zero, through the Valuation Period, the Seller will use good faith efforts to make all open market purchases last day of Common Stock on a Relevant Day in connection with this Transaction in a manner that would comply with the limitations set forth in clauses (b)(2), (b)(3), (b)(4) and (c) of Rule 10b-18 as if such rule were applicable to such purchases. (c) During the Relevant Period and, if applicable, the Valuation Period, the Company shall (i) notify the Seller prior to the opening of trading in the Common Stock on any day on which the Company makes, or expects to be made, any public announcement (as defined in Rule 165(f) under the Securities Act) of any merger, acquisition, or similar transaction involving a recapitalization relating to the Company (other than any such transaction in which the consideration consists solely of cash and there is no valuation period), (ii) promptly notify the Seller following any such announcement that such announcement has been made, and (iii) promptly deliver to the Seller following the making of any such announcement a certificate indicating (A) the Company’s average daily Rule 10b-18 purchases (as defined in Rule 10b-18) during the three full calendar months preceding the date of the announcement of such transaction and (B) the Company’s block purchases (as defined in Rule 10b-18) effected pursuant to paragraph (b)(4) of Rule 10b-18 during the three full calendar months preceding the date of the announcement of such transaction. In addition, the Company shall promptly notify the Seller of the earlier to occur of the completion of such transaction and the completion of the vote by target shareholders. The Company acknowledges that any such public announcement may cause the Pricing Averaging Period or Valuation Period Period, as the case may be, to be suspended pursuant to Section III(d3(b). Accordingly, the Company acknowledges that its actions in relation to any such announcement or transaction must comply with the standards set forth in Section III(a3(a). (d) In the event that the Seller reasonably concludes in good faith that it is appropriate with respect to any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by the Seller generally), for it to refrain from engaging in or to limit its hedging activities in connection with the Transaction on any Relevant Pricing Day during the Relevant Period and, if applicable, the Valuation Period (each such event, a “Regulatory Disruption”), such day shall be deemed to be a Disrupted Day. In the event of a Disrupted Day (regardless of the cause), the Seller may adjust the terms of the Transaction as in its good faith judgment it deems appropriate under the circumstances. The Seller shall promptly notify the Company upon exercising its rights pursuant to this Section III(d) and shall subsequently notify the Company in writing on the day the Seller believes that it may resume its hedging activities. The Seller shall not be required to communicate to the Company the reason for the Seller’s exercise of its rights pursuant to this Section III(d) if the Seller reasonably determines in good faith that disclosing such reason may result in a violation of any legal, regulatory, or self-regulatory requirements or related policies and procedures.

Seller Purchases. (a) The parties acknowledge Initial Shares may be sold short to the Company. It is understood that during the deliveries of Averaging Period the Seller shall purchase shares of Common Stock contemplated by Section II will result in connection with this Letter Agreement, which shares may be used to cover all or a portion of such short sale and, if the Settlement Amount is greater than zero, during the Valuation Period the Seller having an outstanding short position with respect to the Common Stock. During the Pricing Period (the “Relevant Period”) or, if applicable, the Valuation Period, the Seller or its affiliates may effect transactions in will purchase shares of Common Stock or enter into derivative transactions relating to fulfill its obligations to deliver Refund Shares to the Common StockCompany pursuant to Section 5. Notwithstanding the foregoing, the Seller shall not be required to purchase any shares of Common Stock during the Relevant Period or, if applicable, the Valuation Period. Any Such purchases of Common Stock, or other transactions relating to Common Stock, by the Seller or its affiliates during the Relevant Period or, if applicable, the Valuation Period shall will be conducted independently of the Company. The timing of such purchases by the Seller, the number of shares purchased by the Seller on any day, the price paid per share of Common Stock pursuant to such purchases and the manner in which such purchases are made, including without limitation whether such purchases are made on any securities exchange or privately, shall be within the absolute discretion of the Seller. It is the intent of the parties that the Transaction this transaction comply with the requirements of Rule 10b5-1(c)(1)(i)(B) of the Exchange Act, and the parties agree that (i) this Letter Agreement shall be interpreted in a manner to comply with the requirements of Rule 10b5-1(c), and the Company (ii) they shall take no action that results in the Transaction this transaction not so complying with such requirements. Without limiting the generality of the preceding sentence, the Company acknowledges and agrees that (A) the Company does not have, and shall not attempt to exercise, any influence over how, when or whether the Seller or its affiliates effect effects any purchases of shares of Common Stock or other transactions relating to the Common Stock in connection with the Transactionthis Letter Agreement, (B) during the Relevant Period and, if applicable, period beginning on (but excluding) the date of this Letter Agreement and ending on the last day of the Valuation Period, if any, neither the Company nor its officers or employees shall, directly or indirectly, communicate any material non-public information regarding the Company or the Common Stock to any employee of the Seller or its affiliates responsible for trading the Common Stock in connection with the transactions contemplated hereby, (C) the Company is entering into the Transaction this Letter Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of compliance with federal securities laws including, without limitation, Rule 10b-5 promulgated under the Exchange Act and (D) the Company will not alter or deviate from this Letter Agreement or enter into or alter a corresponding hedging transaction with respect to the shares of Common Stock. The Company also acknowledges and agrees that any amendment, modification modification, waiver or waiver termination of this Letter Agreement must be effected in accordance with the requirements for the amendment of a plan within the meaning of “plan” as defined in Rule 10b5-1(c) under the Exchange Act. Without limiting the generality of the foregoing, any such amendment, modification modification, waiver or waiver termination shall be made in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b-5 under the Exchange Act, and no such amendment, modification modification, waiver or waiver termination shall be made on the basis of, or at any time at which the Company or any officer or director of the Company is aware of, of any material non-public nonpublic information regarding the Company or the Common Stock. (ib) In the event that the Seller reasonably determines that it is appropriate with regard to any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by the Seller, and including without limitation Rule 10b-18, Rule 10b-5, Regulation 13D-G and Regulation 14E under the Exchange Act, “Requirements”), for the Seller to refrain from purchasing Common Stock or to purchase fewer than the number of shares of Common Stock that the Seller would otherwise purchase on any Trading Day during the Averaging Period or, if the Settlement Amount is greater than zero, the Valuation Period, then the Seller may, in its discretion, elect that the Averaging Period or the Valuation Period, as the case may be, be suspended as appropriate with regard to any Requirements. The Seller shall notify the Company upon the exercise of the Seller’s rights pursuant to this Section 3(b) and shall subsequently notify the Company on the day the Seller believes that the circumstances giving rise to such exercise have changed. If the Averaging Period or the Valuation Period is suspended by the Seller pursuant to this Section 3(b), at the end of such suspension the Seller shall determine the number of Trading Days remaining in the Averaging Period or the Valuation Period, as the case may be, which number shall not exceed the Remaining Scheduled Days as of the time of such suspension. (c) The Company represents and warrants agrees that neither the Company nor any agent acting of its affiliates or agents shall take any action that would cause Regulation M to be applicable to any purchases of Common Stock, or any security for which the Common Stock is a reference security (as defined in Regulation M), by the Company or any of its affiliated purchasers (as defined in Regulation M) during the Averaging Period or, if the Settlement Amount is greater than zero, the Valuation Period. (d) The Company shall, at least one day prior to the first day of the Averaging Period, notify the Seller of the total number of shares of Common Stock purchased in Rule 10b-18 purchases of blocks pursuant to the once-a-week block exception contained in Rule 10b-18(b)(4) by or for the Company has, or any of its affiliated purchasers during each of the four full calendar weeks prior to preceding the date hereof, first day of the Averaging Period and during the calendar week during in which the Purchase Date occursfirst day of the Averaging Period occurs (“Rule 10b-18 purchase”, entered into a purchase by or for itself or for any of its affiliated purchasers of a block of Common Stock (“blocks” and “affiliated purchaser” and “blocks” each being used as defined in Rule 10b-18), which notice shall be substantially in the form set forth as Appendix B hereto. (iie) During From the Relevant date hereof through the last day of the Averaging Period andor, if applicablethe Settlement Amount is greater than zero, through the Valuation Period, the Seller will use good faith efforts to make all open market purchases last day of Common Stock on a Relevant Day in connection with this Transaction in a manner that would comply with the limitations set forth in clauses (b)(2), (b)(3), (b)(4) and (c) of Rule 10b-18 as if such rule were applicable to such purchases. (c) During the Relevant Period and, if applicable, the Valuation Period, the Company shall (i) notify the Seller prior to the opening of trading in the Common Stock on any day on which the Company makes, or expects to be made, any public announcement (as defined in Rule 165(f) under the Securities Act) of any merger, acquisition, or similar transaction involving a recapitalization relating to the Company (other than any such transaction in which the consideration consists solely of cash and there is no valuation period), (ii) promptly notify the Seller following any such announcement that such announcement has been made, and (iii) promptly deliver to the Seller following the making of any such announcement a certificate indicating (A) the Company’s average daily Rule 10b-18 purchases (as defined in Rule 10b-18) during the three full calendar months preceding the date of the announcement of such transaction and (B) the Company’s block purchases (as defined in Rule 10b-18) effected pursuant to paragraph (b)(4) of Rule 10b-18 during the three full calendar months preceding the date of the announcement of such transaction. In addition, the Company shall promptly notify the Seller of the earlier to occur of the completion of such transaction and the completion of the vote by target shareholders. The Company acknowledges that any such public announcement may cause the Pricing Averaging Period or Valuation Period Period, as the case may be, to be suspended pursuant to Section III(d3(b). Accordingly, the Company acknowledges that its actions in relation to any such announcement or transaction must comply with the standards set forth in Section III(a3(a). (d) In the event that the Seller reasonably concludes in good faith that it is appropriate with respect to any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by the Seller generally), for it to refrain from engaging in or to limit its hedging activities in connection with the Transaction on any Relevant Pricing Day during the Relevant Period and, if applicable, the Valuation Period (each such event, a “Regulatory Disruption”), such day shall be deemed to be a Disrupted Day. In the event of a Disrupted Day (regardless of the cause), the Seller may adjust the terms of the Transaction as in its good faith judgment it deems appropriate under the circumstances. The Seller shall promptly notify the Company upon exercising its rights pursuant to this Section III(d) and shall subsequently notify the Company in writing on the day the Seller believes that it may resume its hedging activities. The Seller shall not be required to communicate to the Company the reason for the Seller’s exercise of its rights pursuant to this Section III(d) if the Seller reasonably determines in good faith that disclosing such reason may result in a violation of any legal, regulatory, or self-regulatory requirements or related policies and procedures.

Seller Purchases. (a) The parties acknowledge Initial Shares may be sold short to the Company. It is understood that during the deliveries of Averaging Period the Seller may purchase shares of Common Stock contemplated by Section II will result in connection with this Letter Agreement, which shares may be used to cover all or a portion of such short sale and, if the Settlement Amount is greater than zero, during the Valuation Period the Seller having an outstanding short position with respect to the Common Stock. During the Pricing Period (the “Relevant Period”) or, if applicable, the Valuation Period, the Seller or its affiliates may effect transactions in will purchase shares of Common Stock or enter into derivative transactions relating to fulfill its obligations to deliver Refund Shares to the Common StockCompany pursuant to Section 5. Notwithstanding the foregoing, the Seller shall not be required to purchase any shares of Common Stock during the Relevant Period or, if applicable, the Valuation Period. Any Such purchases of Common Stock, or other transactions relating to Common Stock, by the Seller or its affiliates during the Relevant Period or, if applicable, the Valuation Period shall will be conducted independently of the Company. The timing of such purchases by the Seller, the number of shares purchased by the Seller on any day, the price paid per share of Common Stock pursuant to such purchases and the manner in which such purchases are made, including without limitation whether such purchases are made on any securities exchange or privately, shall be within the absolute discretion of the Seller. It is the intent of the parties that the Transaction this transaction comply with the requirements of Rule 10b5-1(c)(1)(i)(B) of the Exchange Act, and the parties agree that (i) this Letter Agreement shall be interpreted in a manner to comply with the requirements of Rule 10b5-1(c), and the Company (ii) they shall take no action that results in the Transaction this transaction not so complying with such requirements. Without limiting the generality of the preceding sentence, the Company acknowledges and agrees that (A) the Company does not have, and shall not attempt to exercise, any influence over how, when or whether the Seller or its affiliates effect effects any purchases of shares of Common Stock or other transactions relating to the Common Stock in connection with the Transactionthis Letter Agreement, (B) during the Relevant Period and, if applicable, period beginning on (but excluding) the date of this Letter Agreement and ending on the last day of the Valuation Period, if any, neither the Company nor its officers or employees shall, directly or indirectly, communicate any material non-public information regarding the Company or the Common Stock to any employee of the Seller or its affiliates responsible for trading the Common Stock in connection with the transactions contemplated hereby, (C) the Company is entering into the Transaction this Letter Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of compliance with federal securities laws including, without limitation, Rule 10b-5 promulgated under the Exchange Act and (D) the Company will not alter or deviate from this Letter Agreement or enter into or alter a corresponding hedging transaction with respect to the shares of Common Stock. The Company also acknowledges and agrees that any amendment, modification modification, waiver or waiver termination of this Letter Agreement must be effected in accordance with the requirements for the amendment of a plan within the meaning of “plan” as defined in Rule 10b5-1(c) under the Exchange Act. Without limiting the generality of the foregoing, any such amendment, modification modification, waiver or waiver termination shall be made in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b-5 under the Exchange Act, and no such amendment, modification modification, waiver or waiver termination shall be made on the basis of, or at any time at which the Company or any officer or director of the Company is aware of, of any material non-public nonpublic information regarding the Company or the Common Stock. (ib) In the event that the Seller, in its discretion, determines that it is appropriate with regard to any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by the Seller, and including without limitation Rule 10b-18, Rule 10b-5, Regulation 13D-G and Regulation 14E under the Exchange Act, “Requirements”), for the Seller to refrain from purchasing Common Stock or to purchase fewer than the number of shares of Common Stock that the Seller would otherwise purchase on any Trading Day during the Averaging Period or, if the Settlement Amount is greater than zero, the Valuation Period, then the Seller may, in its discretion, elect that the Averaging Period or the Valuation Period, as the case may be, be suspended as appropriate with regard to any Requirements. The Seller shall notify the Company upon the exercise of the Seller’s rights pursuant to this Section 3(b) and shall subsequently notify the Company on the day the Seller believes that the circumstances giving rise to such exercise have changed. If the Averaging Period or the Valuation Period is suspended by the Seller pursuant to this Section 3(b), at the end of such suspension the Seller shall determine the number of Trading Days remaining in the Averaging Period or the Valuation Period, as the case may be, which number shall not exceed the Remaining Scheduled Days as of the time of such suspension, and shall not result in the Averaging Period ending prior to May 5, 2006. (c) The Company represents and warrants agrees that neither the Company nor any agent acting of its affiliates or agents shall take any action that would cause Regulation M to be applicable to any purchases of Common Stock, or any security for which the Common Stock is a reference security (as defined in Regulation M), by the Company or any of its affiliated purchasers (as defined in Regulation M) during the Averaging Period or, if the Settlement Amount is greater than zero, the Valuation Period. (d) The Company shall, at least one day prior to the first day of the Averaging Period, notify the Seller of the total number of shares of Common Stock purchased in Rule 10b-18 purchases of blocks pursuant to the once-a-week block exception contained in Rule 10b-18(b)(4) by or for the Company has, or any of its affiliated purchasers during each of the four full calendar weeks prior to preceding the date hereof, first day of the Averaging Period and during the calendar week during in which the Purchase Date occursfirst day of the Averaging Period occurs (“Rule 10b-18 purchase”, entered into a purchase by or for itself or for any of its affiliated purchasers of a block of Common Stock (“blocks” and “affiliated purchaser” and each being used as defined in Rule 10b-18), which notice shall be substantially in the form set forth as Appendix B hereto, it being understood that purchases under a “blocksplan” by an “agent independent of the issuer” (each as defined in Rule 10b-18)) are not required to be reported. (iie) During From the Relevant date hereof through the last day of the Averaging Period andor, if applicablethe Settlement Amount is greater than zero, through the Valuation Period, the Seller will use good faith efforts to make all open market purchases last day of Common Stock on a Relevant Day in connection with this Transaction in a manner that would comply with the limitations set forth in clauses (b)(2), (b)(3), (b)(4) and (c) of Rule 10b-18 as if such rule were applicable to such purchases. (c) During the Relevant Period and, if applicable, the Valuation Period, the Company shall (i) notify the Seller prior to the opening of trading in the Common Stock on any day on which the Company makes, or expects to be made, any public announcement (as defined in Rule 165(f) under the Securities Act) of any merger, acquisition, or similar transaction involving a recapitalization relating to the Company (other than any such transaction in which the consideration consists solely of cash and there is no valuation period), (ii) promptly notify the Seller following any such announcement that such announcement has been made, and (iii) promptly deliver to the Seller following the making of any such announcement a certificate indicating (A) the Company’s average daily Rule 10b-18 purchases (as defined in Rule 10b-18) during the three full calendar months preceding the date of the announcement of such transaction and (B) the Company’s block purchases (as defined in Rule 10b-18) effected pursuant to paragraph (b)(4) of Rule 10b-18 during the three full calendar months preceding the date of the announcement of such transaction. In addition, the Company shall promptly notify the Seller of the earlier to occur of the completion of such transaction and the completion of the vote by target shareholders. The Company acknowledges that any such public announcement may cause the Pricing Averaging Period or Valuation Period Period, as the case may be, to be suspended pursuant to Section III(d3(b). Accordingly, the Company acknowledges that its actions in relation to any such announcement or transaction must comply with the standards set forth in Section III(a3(a). (d) In the event that the Seller reasonably concludes in good faith that it is appropriate with respect to any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by the Seller generally), for it to refrain from engaging in or to limit its hedging activities in connection with the Transaction on any Relevant Pricing Day during the Relevant Period and, if applicable, the Valuation Period (each such event, a “Regulatory Disruption”), such day shall be deemed to be a Disrupted Day. In the event of a Disrupted Day (regardless of the cause), the Seller may adjust the terms of the Transaction as in its good faith judgment it deems appropriate under the circumstances. The Seller shall promptly notify the Company upon exercising its rights pursuant to this Section III(d) and shall subsequently notify the Company in writing on the day the Seller believes that it may resume its hedging activities. The Seller shall not be required to communicate to the Company the reason for the Seller’s exercise of its rights pursuant to this Section III(d) if the Seller reasonably determines in good faith that disclosing such reason may result in a violation of any legal, regulatory, or self-regulatory requirements or related policies and procedures.

Seller Purchases. (a) The parties acknowledge Initial Shares may be sold short to the Company. It is understood that during the deliveries of Averaging Period the Seller may purchase shares of Common Stock contemplated by Section II in connection with this Letter Agreement, which shares may be used to cover all or a portion of such short sale. Such purchases will result in the Seller having an outstanding short position with respect to the Common Stock. During the Pricing Period (the “Relevant Period”) or, if applicable, the Valuation Period, the Seller or its affiliates may effect transactions in shares of Common Stock or enter into derivative transactions relating to the Common Stock. Notwithstanding the foregoing, the Seller shall not be required to purchase any shares of Common Stock during the Relevant Period or, if applicable, the Valuation Period. Any purchases of Common Stock, or other transactions relating to Common Stock, by the Seller or its affiliates during the Relevant Period or, if applicable, the Valuation Period shall be conducted independently of the Company. The timing of such purchases by the Seller, the number of shares purchased by the Seller on any day, the price paid per share of Common Stock pursuant to such purchases and the manner in which such purchases are made, including without limitation whether such purchases are made on any securities exchange or privately, shall be within the absolute discretion of the Seller. It is the intent of the parties that the Transaction this transaction comply with the requirements of Rule 10b5-1(c)(1)(i)(B) of the Exchange Act, and the parties agree that this Letter Agreement shall be interpreted in a manner to comply with the requirements of Rule 10b5-1(c), and the Company shall take no action that results in the Transaction this transaction not so complying with such requirements. Without limiting the generality of the preceding sentence, the Company acknowledges and agrees that (A) the Company does not have, and shall not attempt to exercise, any influence over how, when or whether the Seller or its affiliates effect effects any purchases of shares of Common Stock or other transactions relating to the Common Stock in connection with the Transactionthis Letter Agreement, (B) during the Relevant Period andperiod beginning on (but excluding) the date of this Letter Agreement and ending on the last day of the Averaging Period, if applicable, the Valuation Periodany, neither the Company nor its officers or employees shall, directly or indirectly, communicate any material non-public information regarding the Company or the Common Stock to any employee of the Seller or its affiliates responsible for trading the Common Stock in connection with the transactions contemplated hereby, provided that the limitation imposed by this clause (B) shall not extend to or affect disclosures by the Company by means of (i) press releases in the ordinary course of its business or as otherwise required by law or (ii) reports, proxy statements or other documents publicly filed or furnished by the Company with or to the Securities and Exchange Commission, (C) the Company is entering into the Transaction this Letter Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of compliance with federal securities laws including, without limitation, Rule 10b-5 promulgated under the Exchange Act and (D) during the period beginning on (but excluding) the date of this Letter Agreement and ending on the later of the last day of the Averaging Period or the last day of the Valuation Period, if any, the Company will not alter or deviate from this Letter Agreement or enter into or alter a corresponding hedging transaction with respect to the shares of Common Stock. The Company also acknowledges and agrees that any amendment, modification modification, waiver or waiver termination of this Letter Agreement must be effected in accordance with the requirements for the amendment or termination of a plan within the meaning of “plan” as defined in Rule 10b5-1(c) under the Exchange Act. Without limiting the generality of the foregoing, any such amendment, modification modification, waiver or waiver termination shall be made in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b-5 under the Exchange Act, and no such amendment, modification modification, waiver or waiver termination shall be made on the basis of, or at any time at which the Company or any officer or director of the Company is aware of, of any material non-public nonpublic information regarding the Company or the Common Stock. (ib) In the event that the Seller, in its commercially reasonable discretion, determines that it is appropriate with regard to any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by the Seller, and including without limitation Rule 10b-18, Rule 10b-5, Regulation 13D-G and Regulation 14E under the Exchange Act, the “Requirements”), for the Seller to refrain from purchasing Common Stock or to purchase fewer than the number of shares of Common Stock that the Seller would otherwise purchase on any Trading Day during the Averaging Period, then the Seller may, in its commercially reasonable discretion, elect that the Averaging Period be suspended as appropriate with regard to any Requirements. The Seller shall notify the Company upon the exercise of the Seller’s rights pursuant to this Section 3(b) and shall subsequently notify the Company on the day the Seller reasonably believes that the circumstances giving rise to such exercise have changed. If the Averaging Period is suspended by the Seller pursuant to this Section 3(b), at the end of such suspension the Seller shall determine in good faith and in a commercially reasonably manner the number of Trading Days remaining in the Averaging Period, which number shall not exceed the Remaining Scheduled Days as of the time of such suspension. (c) The Company represents agrees that it shall not take, shall not cause its affiliates or agents to take, and warrants shall use commercially reasonable efforts to prevent its affiliates from taking any action that neither reasonably could be expected to cause Regulation M to be applicable to any purchases of Common Stock, or any security for which the Common Stock is a reference security (as defined in Regulation M), by the Company nor or any agent acting of its affiliated purchasers (as defined in Regulation M) during the Averaging Period. (d) The Company shall, at least one day prior to the first day of the Averaging Period, notify the Seller of the total number of shares of Common Stock purchased in Rule 10b-18 purchases of blocks pursuant to the once-a-week block exception contained in Rule 10b-18(b)(4) by or for the Company hasor, to the knowledge of the Company, any of its affiliated purchasers, during each of the four full calendar weeks prior to preceding the date hereof, first day of the Averaging Period and during the calendar week during in which the Purchase Date occursfirst day of the Averaging Period occurs (“Rule 10b-18 purchase”, entered into a purchase by or for itself or for any of its affiliated purchasers of a block of Common Stock (“blocks” and “affiliated purchaser” and “blocks” each being used as defined in Rule 10b-18), which notice shall be substantially in the form set forth as Appendix B hereto. (iie) During From the Relevant Period and, if applicable, date hereof through the Valuation Period, last day of the Seller will use good faith efforts to make all open market purchases of Common Stock on a Relevant Day in connection with this Transaction in a manner that would comply with the limitations set forth in clauses (b)(2), (b)(3), (b)(4) and (c) of Rule 10b-18 as if such rule were applicable to such purchases. (c) During the Relevant Period and, if applicable, the Valuation Averaging Period, the Company shall (i) notify the Seller prior to the opening of trading in the Common Stock on any day on which the Company makes, or expects to be made, any public announcement (as defined in Rule 165(f) under the Securities Act) of any merger, acquisition, or similar transaction involving a recapitalization relating to the Company (other than any such transaction in which the consideration consists solely of cash and there is no valuation period), (ii) promptly notify the Seller following any such announcement that such announcement has been made, and (iii) promptly deliver to the Seller following the making of any such announcement a certificate indicating (A) the Company’s average daily Rule 10b-18 purchases (as defined in Rule 10b-18) during the three full calendar months preceding the date of the announcement of such transaction and (B) the Company’s block purchases (as defined in Rule 10b-18) effected pursuant to paragraph (b)(4) of Rule 10b-18 during the three full calendar months preceding the date of the announcement of such transaction. In addition, the Company shall promptly notify the Seller of the earlier to occur of the completion of such transaction and the completion of the vote by target shareholders. The Company acknowledges that any such public announcement may cause the Pricing Period or Valuation Averaging Period to be suspended pursuant to Section III(d3(b). Accordingly, the Company acknowledges that its actions in relation to any such announcement or transaction must comply with the standards set forth in Section III(a3(a). (d) In the event that the Seller reasonably concludes in good faith that it is appropriate with respect to any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by the Seller generally), for it to refrain from engaging in or to limit its hedging activities in connection with the Transaction on any Relevant Pricing Day during the Relevant Period and, if applicable, the Valuation Period (each such event, a “Regulatory Disruption”), such day shall be deemed to be a Disrupted Day. In the event of a Disrupted Day (regardless of the cause), the Seller may adjust the terms of the Transaction as in its good faith judgment it deems appropriate under the circumstances. The Seller shall promptly notify the Company upon exercising its rights pursuant to this Section III(d) and shall subsequently notify the Company in writing on the day the Seller believes that it may resume its hedging activities. The Seller shall not be required to communicate to the Company the reason for the Seller’s exercise of its rights pursuant to this Section III(d) if the Seller reasonably determines in good faith that disclosing such reason may result in a violation of any legal, regulatory, or self-regulatory requirements or related policies and procedures.

Seller Purchases. (a) The parties acknowledge It is understood that on each Trading Day during the deliveries Averaging Period, the Seller will use commercially reasonable efforts to purchase a number of shares of Common Stock contemplated in connection with this Letter Agreement equal to the Daily Share Amount for such Trading Day, subject to Section 3(b) and any "buy-ins" by Section II any lenders as described under the definition of "Repurchase Cost", which shares will result in be used to cover all or a portion of any short position maintained by the Seller having an outstanding short position in order to hedge its price and market risk with respect to the Common StockNotes and/or this Letter Agreement. During the Pricing Period (the “Relevant Period”) or, if applicable, the Valuation Period, the Seller or its affiliates may effect transactions in shares of Common Stock or enter into derivative transactions relating to the Common Stock. Notwithstanding the foregoing, the Seller shall not be required to purchase any shares of Common Stock during the Relevant Period or, if applicable, the Valuation Period. Any Such purchases of Common Stock, or other transactions relating to Common Stock, by the Seller or its affiliates during the Relevant Period or, if applicable, the Valuation Period shall will be conducted independently of the Company. The timing of such purchases by the Seller on any day, the price paid per share of Common Stock pursuant to such purchases and the manner in which such purchases are made, including without limitation whether such purchases are made on any securities exchange or privately, shall be within the absolute discretion of the Seller. The Seller shall use good faith efforts to effect such purchases of Common Stock in a manner that would, if the Seller were the Issuer or an affiliated purchaser of the Issuer, be subject to the safe harbor provided by Rule 10b-18(b) or otherwise in a manner that the Seller, in its discretion, believes is in compliance with applicable requirements. For this reason, the Company shall, at least one day prior to the first day of the Averaging Period, notify the Seller of the total number of shares of the Common Stock purchased in Rule 10b-18 purchases of blocks pursuant to the once-a-week block exception contained in Rule 10b-18(b)(4) by or for the Issuer or any of its affiliated purchasers during each of the four calendar weeks preceding the first day of the Averaging Period and during the calendar week in which the first day of the Averaging Period occurs ("Rule 10b-18 purchase", "blocks" and "affiliated purchaser" each being used as defined in Rule 10b-18), which notice shall be substantially in the form set forth as Appendix A hereto. It is the intent of the parties that the Transaction this transaction comply with the requirements of Rule 10b5-1(c)(1)(i)(B) of the Exchange Act, and the parties agree that this Letter Agreement Agreement, together with the Plan Start Date Notice, shall be interpreted in a manner to comply with the requirements of Rule 10b5-1(c), and the Company shall not, and the Company shall use reasonable efforts to cause the Issuer and its affiliates and agents not to, take no any action that results in the Transaction this transaction not so complying with such requirements. Without limiting the generality of the preceding sentence, the Company acknowledges and agrees that (A) the Company does not have, and shall not attempt to exercise, any influence over how, when or whether the Seller or its affiliates effect effects any purchases of shares of Common Stock or other transactions relating to the Common Stock in connection with the Transactionthis Letter Agreement, (B) during the Relevant Period and, if applicable, period beginning on (but excluding) the Valuation date of this Letter Agreement and ending on the last day of the Averaging Period, neither the Company nor its officers or employees shall, and the Company shall use reasonable efforts to cause the Issuer and its affiliates and agents not to, directly or indirectly, communicate any material non-public information regarding the Company Issuer or the Common Stock to any employee of the Seller or its affiliates responsible for trading the Common Stock in connection with the transactions contemplated hereby, (C) the Company is entering into the Transaction this Letter Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of compliance with federal securities laws including, without limitation, Rule 10b-5 promulgated under the Exchange Act and (D) the Company will not alter or deviate from this Letter Agreement or enter into or alter a corresponding hedging transaction with respect to the shares of Common Stock. The Company also acknowledges and agrees that any amendment, modification modification, waiver or waiver termination of this Letter Agreement must be effected in accordance with the requirements for the amendment or termination of a plan within the meaning of "plan" as defined in Rule 10b5-1(c) under the Exchange Act. Without limiting the generality of the foregoing, any such amendment, modification modification, waiver or waiver termination shall be made in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b-5 under the Exchange Act, and no such amendment, modification modification, waiver or waiver termination shall be made on the basis of, or at any time at which the Company or any officer or director of the Company is aware of, of any material non-public nonpublic information regarding the Company Issuer or the Common Stock. (ib) In the event that the Seller, in its discretion, determines that it is appropriate with regard to any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by the Seller, and including without limitation Rule 10b-18, Rule 10b-5, Regulation 13D-G and Regulation 14E under the Exchange Act, "REQUIREMENTS"), for the Seller to refrain from purchasing Common Stock or to purchase fewer than the otherwise applicable minimum Daily Share Amount of Common Stock on any Trading Day during the Averaging Period, then the Seller may, in its discretion, elect that the Daily Share Amount shall be reduced for such day to an amount determined by the Seller in its discretion as appropriate with regard to any Requirements. The Seller shall notify the Company upon the exercise of the Seller's rights pursuant to this Section 3(b) and shall subsequently notify the Company on the day the Seller believes that the circumstances giving rise to such exercise have changed. (c) The Company represents and warrants agrees that neither the Company nor any agent acting for of its affiliates or agents shall, and the Company hasshall use reasonable efforts to cause the Issuer and its affiliates and agents not to, during each take any action that would cause Regulation M to be applicable to any purchases of the four full calendar weeks prior to the date hereofCommon Stock, and during the calendar week during or any security for which the Purchase Date occursCommon Stock is a reference security (as defined in Regulation M), entered into a purchase by the Company or for itself or for any of its affiliated purchasers of a block of Common Stock (“affiliated purchaser” and “blocks” each as defined in Rule 10b-18)Regulation M) during the Averaging Period. (iid) During From the Relevant Period and, if applicable, date hereof through the Valuation Period, last day of the Seller will use good faith efforts to make all open market purchases of Common Stock on a Relevant Day in connection with this Transaction in a manner that would comply with the limitations set forth in clauses (b)(2), (b)(3), (b)(4) and (c) of Rule 10b-18 as if such rule were applicable to such purchases. (c) During the Relevant Period and, if applicable, the Valuation Averaging Period, the Company shall (i) notify the Seller prior to the opening of trading in the Common Stock on any day on which the Company Issuer makes, or expects to be made, any public announcement (as defined in Rule 165(f) under the Securities Act) of any merger, acquisition, or similar transaction involving a recapitalization relating to the Company Issuer (other than any such transaction in which the consideration consists solely of cash and there is no valuation period), (ii) promptly notify the Seller following any such announcement that such announcement has been made, and (iii) promptly deliver to the Seller following the making of any such announcement a certificate indicating (A) the Company’s Issuer's average daily Rule 10b-18 purchases (as defined in Rule 10b-18) during the three full calendar months preceding the date of the announcement of such transaction and (B) the Company’s Issuer's block purchases (as defined in Rule 10b-18) effected pursuant to paragraph (b)(4) of Rule 10b-18 during the three full calendar months preceding the date of the announcement of such transaction. In addition, the Company shall promptly notify the Seller of the earlier to occur of the completion of such transaction and the completion of the vote by target shareholders. The Company acknowledges that any such public announcement may cause the Pricing Period or Valuation Period minimum Daily Share Amount on any Trading Day to be suspended reduced pursuant to Section III(d3(b). Accordingly, the Company acknowledges that its actions in relation to any such announcement or transaction must comply with the standards set forth in Section III(a)3. (d) In the event that the Seller reasonably concludes in good faith that it is appropriate with respect to any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by the Seller generally), for it to refrain from engaging in or to limit its hedging activities in connection with the Transaction on any Relevant Pricing Day during the Relevant Period and, if applicable, the Valuation Period (each such event, a “Regulatory Disruption”), such day shall be deemed to be a Disrupted Day. In the event of a Disrupted Day (regardless of the cause), the Seller may adjust the terms of the Transaction as in its good faith judgment it deems appropriate under the circumstances. The Seller shall promptly notify the Company upon exercising its rights pursuant to this Section III(d) and shall subsequently notify the Company in writing on the day the Seller believes that it may resume its hedging activities. The Seller shall not be required to communicate to the Company the reason for the Seller’s exercise of its rights pursuant to this Section III(d) if the Seller reasonably determines in good faith that disclosing such reason may result in a violation of any legal, regulatory, or self-regulatory requirements or related policies and procedures.

Seller Purchases. (a) The parties acknowledge Initial Shares may be sold short to the Company. It is understood that during the deliveries of Averaging Period the Seller will purchase shares of Common Stock contemplated by Section II will result in connection with this Letter Agreement, which shares may be used to cover all or a portion of such short sale and, if the Settlement Amount is greater than zero, during the Valuation Period the Seller having an outstanding short position with respect to the Common Stock. During the Pricing Period (the “Relevant Period”) or, if applicable, the Valuation Period, the Seller or its affiliates may effect transactions in will purchase shares of Common Stock or enter into derivative transactions relating to fulfill its obligations to deliver Refund Shares to the Common StockCompany pursuant to Section 5(a)(i). Notwithstanding the foregoing, the Seller shall not be required to purchase any shares of Common Stock during the Relevant Period or, if applicable, the Valuation Period. Any Such purchases of Common Stock, or other transactions relating to Common Stock, by the Seller or its affiliates during the Relevant Period or, if applicable, the Valuation Period shall will be conducted independently of the Company. The timing of such purchases by the Seller, the number of shares purchased by the Seller on any day, the price paid per share of Common Stock pursuant to such purchases and the manner in which such purchases are made, including without limitation whether such purchases are made on any securities exchange or privately, shall be within the absolute discretion of the Seller. The Seller shall effect such purchases of Common Stock as well as purchases relating to the establishment of the Seller’s Initial Hedge (it being understood that for these purposes such purchases shall not be deemed to include any purchases made by the Seller in connection with dynamic hedge adjustments of the Seller’s exposure to the transactions contemplated hereby as a result of any equity optionality contained in such transactions) in a manner that would, if the Seller were the Company or an affiliated purchaser of the Company, be subject to the safe harbor provided by Rule 10b-18(b) or otherwise in a manner that the Seller reasonably believes is in compliance with applicable requirements. For this reason, the Company shall, at least one day prior to the first day of the Averaging Period, notify the Seller of the total number of shares of Common Stock purchased in Rule 10b-18 purchases of blocks pursuant to the once-a-week block exception contained in Rule 10b-18(b)(4) by or for the Company or any of its affiliated purchasers during each of the four calendar weeks preceding the first day of the Averaging Period and during the calendar week in which the first day of the Averaging Period occurs (“Rule 10b-18 purchase”, “blocks” and “affiliated purchaser” each being used as defined in Rule 10b-18), which notice shall be substantially in the form set forth as Appendix B hereto. It is the intent of the parties that the Transaction this transaction comply with the requirements of Rule 10b5-1(c)(1)(i)(B) of the Exchange Act, and the parties agree that (i) this Letter Agreement shall be interpreted in a manner to comply with the requirements of Rule 10b5-1(c), and the Company (ii) they shall take no action that results in the Transaction this transaction not so complying with such requirements. Without limiting the generality of the preceding sentence, the Company acknowledges and agrees that (A) the Company does not have, and shall not attempt to exercise, any influence over how, when or whether the Seller or its affiliates effect effects any purchases of shares of Common Stock or other transactions relating to the Common Stock in connection with the Transactionthis Letter Agreement, (B) during the Relevant Period and, if applicable, period beginning on (but excluding) the date of this Letter Agreement and ending on the last day of the Valuation Period, if any, neither the Company nor its officers or employees shall, directly or indirectly, communicate any material non-public information regarding the Company or the Common Stock to any employee of the Seller or its affiliates responsible for involved in trading the Common Stock in connection with the transactions contemplated hereby, who currently include the individuals specified in Annex A hereto, (C) the Company is entering into the Transaction this Letter Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of compliance with federal securities laws including, without limitation, Rule 10b-5 promulgated under the Exchange Act and (D) the Company will not alter or deviate from this Letter Agreement or enter into or alter a corresponding hedging transaction with respect to the shares of Common Stock. The Company also acknowledges and agrees that any amendment, modification modification, waiver or waiver termination of this Letter Agreement must be effected in accordance with the requirements for the amendment of a plan within the meaning of Rule 10b5-1(c) under the Exchange Act. Without limiting the generality of the foregoing, any such amendment, modification modification, waiver or waiver termination shall be made in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b-5 under the Exchange Act, and no such amendment, modification or waiver shall be made on the basis of, or at any time at which the Company or any officer or director of the Company is aware of, of any material non-public nonpublic information regarding the Company or the Common Stock. (ib) In the event that the Seller reasonably determines that it is appropriate with regard to any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by the Seller, and including without limitation Rule 10b-18, Rule 10b-5, Regulation 13D-G and Regulation 14E under the Exchange Act, “Requirements”), for the Seller to refrain from purchasing Common Stock or to purchase fewer than the number of shares of Common Stock that the Seller would otherwise purchase on any Trading Day during the Averaging Period or, if the Settlement Amount is greater than zero, the Valuation Period, then the Seller may, in its discretion, elect that the Averaging Period or the Valuation Period, as the case may be, be suspended as appropriate with regard to any Requirements. The Seller shall notify the Company upon the exercise of the Seller’s rights pursuant to this Section 3(b) and shall subsequently notify the Company on the day the Seller believes that the circumstances giving rise to such exercise have changed. If the Averaging Period or the Valuation Period is suspended by the Seller pursuant to this Section 3(b), at the end of such suspension the Seller shall determine the number of Trading Days remaining in the Averaging Period or the Valuation Period, as the case may be, which number shall not exceed the Remaining Scheduled Days as of the time of such suspension. (c) The Company represents and warrants agrees that neither the Company nor any agent acting of its affiliates or agents shall take any action that would cause Regulation M to be applicable to any purchases of Common Stock, or any security for which the Common Stock is a reference security (as defined in Regulation M), by the Company has, during each of the four full calendar weeks prior to the date hereof, and during the calendar week during which the Purchase Date occurs, entered into a purchase by or for itself or for any of its affiliated purchasers of a block of Common Stock (“affiliated purchaser” and “blocks” each as defined in Rule 10b-18). (iiRegulation M) During during the Relevant Averaging Period andor, if applicablethe Settlement Amount is greater than zero, the Valuation Period, the Seller will use good faith efforts to make all open market purchases of Common Stock on a Relevant Day in connection with this Transaction in a manner that would comply with the limitations set forth in clauses (b)(2), (b)(3), (b)(4) and (c) of Rule 10b-18 as if such rule were applicable to such purchases. (cd) During From the Relevant date hereof through the last day of the Averaging Period andor, if applicablethe Settlement Amount is greater than zero, through the last day of the Valuation Period, the Company shall (i) notify the Seller prior to the opening of trading in the Common Stock on any day on which the Company makes, or expects to be made, any public announcement (as defined in Rule 165(f) under the Securities Act) of any merger, acquisition, or similar transaction involving a recapitalization relating to the Company (other than any such transaction in which the consideration consists solely of cash and there is no valuation period), (ii) promptly notify the Seller following any such announcement that such announcement has been made, and (iii) promptly deliver to the Seller following the making of any such announcement a certificate indicating (A) the Company’s average daily Rule 10b-18 purchases (as defined in Rule 10b-18) during the three full calendar months preceding the date of the announcement of such transaction and (B) the Company’s block purchases (as defined in Rule 10b-18) effected pursuant to paragraph (b)(4) of Rule 10b-18 during the three full calendar months preceding the date of the announcement of such transaction. In addition, the Company shall promptly notify the Seller of the earlier to occur of the completion of such transaction and the completion of the vote by target shareholders. The Company acknowledges that any such public announcement may cause the Pricing Averaging Period or Valuation Period Period, as the case may be, to be suspended pursuant to Section III(d3(b). Accordingly, the Company acknowledges that its actions in relation to any such announcement or transaction must comply with the standards set forth in Section III(a3(a). (d) In the event that the Seller reasonably concludes in good faith that it is appropriate with respect to any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by the Seller generally), for it to refrain from engaging in or to limit its hedging activities in connection with the Transaction on any Relevant Pricing Day during the Relevant Period and, if applicable, the Valuation Period (each such event, a “Regulatory Disruption”), such day shall be deemed to be a Disrupted Day. In the event of a Disrupted Day (regardless of the cause), the Seller may adjust the terms of the Transaction as in its good faith judgment it deems appropriate under the circumstances. The Seller shall promptly notify the Company upon exercising its rights pursuant to this Section III(d) and shall subsequently notify the Company in writing on the day the Seller believes that it may resume its hedging activities. The Seller shall not be required to communicate to the Company the reason for the Seller’s exercise of its rights pursuant to this Section III(d) if the Seller reasonably determines in good faith that disclosing such reason may result in a violation of any legal, regulatory, or self-regulatory requirements or related policies and procedures.

Seller Purchases. (a) The parties acknowledge Initial Shares may be sold short to the Company. It is understood that during the deliveries of Averaging Period the Seller may purchase shares of Common Stock contemplated by Section II will result in connection with the Agreement, which shares may be used to cover all or a portion of such short sale, and if the Settlement Amount is greater than zero, during the Valuation Period the Seller having an outstanding short position with respect to the Common Stock. During the Pricing Period (the “Relevant Period”) or, if applicable, the Valuation Period, the Seller or its affiliates may effect transactions in will purchase shares of Common Stock or enter into derivative transactions relating to fulfill its obligations to deliver Refund Shares to the Common StockCompany pursuant to Section 5 in the event of a Share Settlement. Notwithstanding the foregoing, the Seller shall not be required to purchase any shares of Common Stock during the Relevant Period or, if applicable, the Valuation Period. Any Such purchases of Common Stock, or other transactions relating to Common Stock, by the Seller or its affiliates during the Relevant Period or, if applicable, the Valuation Period shall will be conducted independently of the Company. The timing of such purchases by the Seller, the number of shares purchased by the Seller on any day, the price paid per share of Common Stock pursuant to such purchases and the manner in which such purchases are made, including without limitation whether such purchases are made on any securities exchange or privately, shall be within the absolute discretion of the Seller; provided, however, that the Seller may only conduct purchases pursuant to this Section 3(a) during the Averaging Period and the Valuation Period, respectively. The Seller shall (i) use good faith efforts to effect such purchases of Common Stock in a manner that would, if the Seller were IBM or an affiliated purchaser of IBM, be subject to the safe harbor provided by Rule 10b-18(b) (including, without limitation, the once-a-week block exception contained in Rule 10b-18(b)(4)) or (ii) otherwise effect such purchases in a manner that the Seller, in its discretion, believes is in compliance with applicable requirements; it being understood that the Seller shall not be responsible for reporting errors of the NYSE or third party reporting systems or other circumstances beyond the Seller’s control. (b) It is the intent of the parties that the Transaction this transaction comply with the requirements of Rule 10b5-1(c)(1)(i)(B) of the Exchange Act, and the parties agree that this Letter the Agreement shall be interpreted in a manner to comply with the requirements of Rule 10b5-1(c), and neither the Seller nor the Company shall take no any action that results in the Transaction this transaction not so complying with such requirements; provided, however, that nothing herein shall be interpreted as making Seller responsible for any failure by the Company to comply with the requirements of Rule 10b5-1(c). Without limiting the generality of the preceding sentence, the Company acknowledges and agrees that (A) the Company does not have, and shall not attempt to exercise, any influence over how, when or whether the Seller or its affiliates effect effects any purchases of shares of Common Stock or other transactions relating to the Common Stock in connection with the TransactionAgreement, (B) during from and including the Relevant Period and, if applicable, date of the Valuation PeriodAgreement to and including the last Settlement Day under the Agreement, neither the Company nor its officers or employees shall, directly or indirectly, communicate any material non-public nonpublic information regarding the Company IBM or the Common Stock to to, or otherwise influence the trading decisions of, any employee of the Seller or its affiliates responsible for trading the Common Stock in connection with the transactions contemplated herebyRestricted Contact Personnel, (C) the Company is entering into the Transaction Agreement and the transactions contemplated by the Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of compliance with federal securities laws including, without limitation, Rule 10b-5 promulgated under the Exchange Act and (D) the Company will not alter or deviate from this Letter the Agreement or enter into or alter a corresponding hedging transaction with respect to the shares of Common Stock. The Company also acknowledges Stock and agrees that any amendment, modification or waiver of this Letter Agreement must be effected in accordance will otherwise comply with the requirements for the amendment of a plan within the meaning of Rule 10b5-1(c) under the Exchange Act. Without limiting the generality of the foregoing, any such amendment, modification or waiver shall be made in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b-5 under the Exchange Act, and no such amendment, modification or waiver shall be made on the basis of, or at any time at which the Company or any officer or director of the Company is aware of, any material non-public information regarding the Company or the Common Stock. (i) The Company represents and warrants that neither the Company nor any agent acting for the Company has, during each of the four full calendar weeks prior to the date hereof, and during the calendar week during which the Purchase Date occurs, entered into a purchase by or for itself or for any of its affiliated purchasers of a block of Common Stock (“affiliated purchaser” and “blocks” each as defined in Rule 10b-181(c)(1)(i)(C). (ii) During the Relevant Period and, if applicable, the Valuation Period, the Seller will use good faith efforts to make all open market purchases of Common Stock on a Relevant Day in connection with this Transaction in a manner that would comply with the limitations set forth in clauses (b)(2), (b)(3), (b)(4) and (c) of Rule 10b-18 as if such rule were applicable to such purchases. (c) During the Relevant Period and, if applicable, the Valuation Period, the Company shall (i) notify the Seller prior to the opening of trading in the Common Stock on any day on which the Company makes, or expects to be made, any public announcement (as defined in Rule 165(f) under the Securities Act) of any merger, acquisition, or similar transaction involving a recapitalization relating to the Company (other than any such transaction in which the consideration consists solely of cash and there is no valuation period), (ii) promptly notify the Seller following any such announcement that such announcement has been made, and (iii) promptly deliver to the Seller following the making of any such announcement a certificate indicating (A) the Company’s average daily Rule 10b-18 purchases (as defined in Rule 10b-18) during the three full calendar months preceding the date of the announcement of such transaction and (B) the Company’s block purchases (as defined in Rule 10b-18) effected pursuant to paragraph (b)(4) of Rule 10b-18 during the three full calendar months preceding the date of the announcement of such transaction. In addition, the Company shall promptly notify the Seller of the earlier to occur of the completion of such transaction and the completion of the vote by target shareholders. The Company acknowledges that any such public announcement may cause the Pricing Period or Valuation Period to be suspended pursuant to Section III(d). Accordingly, the Company acknowledges that its actions in relation to any such announcement or transaction must comply with the standards set forth in Section III(a). (d) In the event that the Seller reasonably concludes Seller, in good faith its discretion, determines that it is appropriate with respect regard to any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by the Seller generallySeller, and including without limitation Rule 10b-18, Rule 10b-5, Regulation 13D-G and Regulation 14E under the Exchange Act, and Regulation M, collectively, the “Requirements”), for it the Seller to refrain from engaging in purchasing Common Stock or to limit its hedging activities in connection with purchase fewer than the Transaction number of shares of Common Stock that the Seller would otherwise purchase on any Relevant Pricing Trading Day during the Relevant Averaging Period andor, if applicablethe Settlement Amount is greater than zero, the Valuation Period, then the Seller may, in its discretion, elect that the Averaging Period (each or the Valuation Period, as the case may be, be extended or suspended and extended as appropriate with regard to any Requirements. If the Seller extends the Averaging Period or the Valuation Period without suspending such event, a “Regulatory Disruption”), such day shall be deemed to be a Disrupted Day. In the event of a Disrupted Day (regardless of the cause)period, the Seller may adjust shall as soon as reasonably practicable, and in no event later than 4:30 p.m., New York City time, on the terms scheduled Trading Day immediately preceding the date that would have been the last Trading Day of the Transaction Averaging Period or Valuation Period without extension, notify the Company of such extension and of the new scheduled last Trading Day of the Averaging Period or Valuation Period, as applicable. If the Seller suspends the Averaging Period or the Valuation Period, the Seller shall notify the Company no later than 4:30 p.m., New York City time, on the date of such suspension. At the end of such suspension the Seller shall determine the number of Trading Days remaining in its good faith judgment it deems appropriate under the circumstancesAveraging Period or the Valuation Period, as the case may be, which number shall not exceed the Remaining Scheduled Days as of the time of such suspension. The Seller shall promptly notify the Company upon exercising as soon as reasonably practicable, but in no event later than the Trading Date immediately following the end of such suspension, of the new scheduled last Trading Day of the Averaging Period or Valuation Period, as applicable. (d) The Company agrees that neither the Company nor any of its rights affiliates or agents shall take any action that would cause Regulation M to be applicable to any purchases of Common Stock, or any security for which the Common Stock is a reference security (as defined in Regulation M), by IBM or any of its affiliated purchasers (as defined in Regulation M) during the Averaging Period or, if the Settlement Amount is greater than zero, the Valuation Period, unless the Company or its affiliate has provided written notice to Seller of a planned “distribution” (as defined in Regulation M) of Common Stock or any security for which Common Stock is a reference security not later than the opening of trading on the first day of the relevant “restricted period” (as defined in Regulation M). The Company acknowledges that any such notice may cause the Averaging Period or the Valuation Period, as the case may be, to be suspended pursuant to this Section III(d3(c). Accordingly, the Company acknowledges that its or such affiliate’s actions in relation to any such announcement or transaction must comply with the standards set forth in Section 3(b) and shall subsequently notify represents that it will not be aware of material non-public information at the time it provides such notice to Seller. (e) The Company acknowledges that any public announcement (as defined in Rule 165(f) under the Securities Act) of any merger, acquisition, or similar transaction involving a recapitalization relating to IBM (other than any such transaction in which the consideration consists solely of cash and there is no valuation period) may cause the Averaging Period or the Valuation Period, as the case may be, to be suspended pursuant to Section 3(c). Accordingly, the Company acknowledges that its or any affiliate’s actions in writing relation to any such announcement or transaction must comply with the standards set forth in Section 3(b) and represents that it will not be aware of material non-public information on the day the Seller believes that it may resume its hedging activities. The Seller shall not be required to communicate to the Company the reason for the Seller’s exercise of its rights pursuant to this Section III(d) if the Seller reasonably determines in good faith that disclosing such reason may result in a violation date of any legal, regulatory, or self-regulatory requirements or related policies and proceduressuch announcement.