Common use of Forward Transactions Clause in Contracts

Forward Transactions. The Company may from time to time, in consultation with a Forward Purchaser and the applicable Agent (which may be either the same entity as the Forward Purchaser or an affiliate of the Forward Purchaser), request to enter into a Forward Transaction by delivering an instruction notice in the form attached as Exhibit B (a “Forward Instruction Notice”) pursuant to a Confirmation for such Agent to borrow, offer and sell Borrowed Securities, as a forward seller, in each case, in accordance with the terms of this Section 6(d). If the Company requests to enter into a Forward Transaction, the Company’s Forward Instruction Notice to the applicable Agent shall include, for purposes of (and as defined under) the related Confirmation, the requested (i) Trade Date, (ii) Maturity Date, (iii) Hedge Completion Date, (iv) Initial Number of Shares, (v) Commission Rate, (vi) Spread, (vii) Initial Stock Loan Rate, (viii) Maximum Stock Loan Rate, (ix) Forward Price Reduction Date and (x) Forward Price Reduction Amount (together, the “Proposed Confirmation Terms”). Each Forward Instruction Notice is subject to review and acceptance by the applicable Agent. To accept a Forward Instruction Notice, the applicable Agent shall send a written acceptance to the Company, and such written acceptance shall set forth the Proposed Confirmation Terms accepted by such Agent. Subject to the terms and conditions hereof and following the delivery of written acceptance by such Agent, the Agent shall use its commercially reasonable efforts, consistent with its normal sales and trading practices for similar forward transactions and applicable law and regulation, to sell as sales agent (whether acting as agent of the Company or as forward seller on behalf of any Forward Purchaser) all of the Borrowed Securities so designated by the Company in a Forward Instruction Notice. With respect to any Forward Instruction Notice accepted by an Agent as forward seller, such Agent shall use commercially reasonable efforts, consistent with its normal sales and trading practices for similar forward transactions and applicable law and regulation, to borrow the number of Securities designated by the Company. Any Confirmation to be entered into between the Company and a Forward Purchaser under this Section 6(d) in connection with a Forward Instruction Notice provided by the Company and accepted by the applicable Agent under this Section 6(d) shall be deemed to include each of the Proposed Confirmation Terms (as set forth in the Agent’s written acceptance) when delivered by the Forward Purchaser to the Company for execution unless the Company and such Forward Purchaser have agreed otherwise in writing prior to the delivery of such Confirmation for execution.

Forward Transactions. The (i) In addition, the Company may may, from time to timetime during the Term, in consultation with a propose to the Forward Seller and Forward Purchaser and the applicable Agent (which may be either the same entity as the Forward Purchaser or an affiliate of the Forward Purchaser), request to that they enter into a Forward Transaction with a specified Intended Forward Hedge Selling Period (as defined below), which proposal shall be made to the Forward Seller and Forward Purchaser by delivering telephone or by email from any of the individuals listed as an instruction authorized representative of the Company on Schedule A hereto to make such sales and shall set forth the information specified below (each, a “Forward Transaction Proposal” and an Issuance Transaction Proposal or a Forward Transaction Proposal, a “Transaction Proposal”). If the Forward Seller and the Forward Purchaser each agrees to the terms of such proposed Forward Transaction or if the Company and the Forward Seller and the Forward Purchaser mutually agree to modified terms for such proposed Forward Transaction, then the Forward Seller and Forward Purchaser shall no later than 9:30 a.m. (New York City time) on the Exchange Business Day following the date the Company delivers a Forward Transaction Proposal (provided such delivery occurs prior to 5:00 p.m. (New York City time) on such date) deliver to the Company by email a notice (each, a “Forward Transaction Acceptance” and an Issuance Transaction Acceptance or a Forward Transaction Acceptance, a “Transaction Acceptance”) confirming the terms of such proposed Forward Transaction as set forth in such Forward Transaction Proposal or setting forth the modified terms for such proposed Forward Transaction as agreed by the Company, the Forward Seller and the Forward Purchaser and, promptly after the terms for such Forward Transaction have been agreed, shall deliver a Confirmation executed by the Forward Purchaser substantially in the form attached as set forth in Exhibit B (a “Confirmation”), such Confirmation to be duly executed by the Company promptly upon receipt, in each case with terms corresponding to such Forward Instruction NoticeTransaction. Each Forward Transaction Proposal shall specify: (1) the number of days during which the Forward Hedge Shares subject to such Forward Transaction are intended to be sold by the Forward Seller and the first date of such period (such period, the “Intended Forward Hedge Selling Period”); (2) the maximum number of Forward Hedge Shares to be sold by the Forward Seller on, or over the course of, the Intended Forward Hedge Selling Period, or as otherwise agreed between the Company, Forward Seller and Forward Purchaser and documented in the relevant Transaction Acceptance; (3) the lowest price, if any, at which the Company is willing for Forward Hedge Shares to be sold during the Intended Forward Hedge Selling Period or a formula pursuant to which such lowest price shall be determined (each, a “Forward Floor Price”); (4) if other than 1% of the Gross Forward Sales Price, the amount of any commission, discount or other compensation to be paid to the Forward Seller in connection with the sale of the Forward Hedge Shares (the “Forward Hedge Selling Commission Rate”); and (5) the “Maturity Date,” the maximum Stock Loan Fee referred to in clause (vi) of “Conditions to Effectiveness” and section (a) of “Acceleration Events,” the “Spread,” “Forward Price Reduction Dates” and “Forward Price Reduction Amounts” (each, as defined in the relevant Confirmation) for such Forward Transaction. A Forward Transaction Proposal shall not set forth terms that, after taking into account the aggregate Gross Issuance Sales Price of Issuance Shares previously purchased and to be purchased pursuant to pending Issuance Transaction Acceptances (if any), including under any Alternative Distribution Agreements and any Terms Agreements and the aggregate Gross Forward Sales Price of Forward Hedge Shares previously sold or to be sold pursuant to pending Forward Transaction Acceptances (if any) or any Alternative Distribution Agreements, result or could result in a total amount that exceeds the Maximum Amount nor shall it set forth a Forward Floor Price which is lower than the minimum price authorized from time to time by the Company’s board of directors or, if permitted by applicable law and the Company’s charter and by-laws, a duly authorized committee thereof. The Company shall have responsibility for maintaining records with respect to the aggregate number and aggregate Gross Forward Sales Price of Forward Hedge Shares sold and for otherwise monitoring the availability of Forward Hedge Shares for sale under the Registration Statement and for ensuring that the aggregate number and aggregate Gross Forward Sales Price of Forward Hedge Shares offered and sold does not exceed, and the price at which any Forward Hedge Shares are offered or sold is not lower than, the aggregate number and aggregate Gross Forward Sales Price of Forward Hedge Shares and the minimum price authorized from time to time by the Company’s board of directors or, if permitted by applicable law and the Company’s charter and by-laws, a duly authorized committee thereof. In the event that more than one Forward Transaction Acceptance with respect to any Intended Forward Hedge Selling Period is delivered by the Forward Seller and Forward Purchaser to the Company, the latest Forward Transaction Acceptance shall govern any sales of Forward Hedge Shares for the relevant Intended Forward Hedge Selling Period, except to the extent of any action occurring pursuant to a prior Forward Transaction Acceptance and prior to the delivery to the Company of the latest Forward Transaction Acceptance. The Company, Forward Purchaser or Forward Seller may, upon notice to each other such party by telephone (confirmed promptly by e-mail), suspend or terminate the offering of Forward Hedge Shares pursuant to Forward Transactions for any reason; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Forward Hedge Shares sold hereunder prior to the giving of such notice or their respective obligations under any Agency Agreement or Terms Agreement. (ii) The Intended Forward Hedge Selling Period in respect of the Forward Hedge Shares to be sold pursuant to a Confirmation for such Agent to borrow, offer and sell Borrowed Securities, as a forward seller, shall be set forth in each case, in accordance with the terms of this Section 6(d). If the Company requests to enter into a Forward Transaction, the Company’s Forward Instruction Notice to the applicable Agent shall include, for purposes of (and as defined under) the related Confirmation, the requested (i) Trade Date, (ii) Maturity Date, (iii) Hedge Completion Date, (iv) Initial Number of Shares, (v) Commission Rate, (vi) Spread, (vii) Initial Stock Loan Rate, (viii) Maximum Stock Loan Rate, (ix) Forward Price Reduction Date and (x) Forward Price Reduction Amount (together, the “Proposed Confirmation Terms”). Each Forward Instruction Notice is subject to review and acceptance or confirmed by the applicable AgentForward Transaction Acceptance. To accept Except as otherwise agreed between the Company and the Forward Seller and Forward Purchaser, the Forward Hedge Selling Commission for any Forward Hedge Shares sold by the Forward Seller pursuant to this Agreement and the relevant Confirmation shall be a percentage, not to exceed 1%, of the actual sales price of such Forward Instruction NoticeHedge Shares by the Forward Seller (the “Gross Forward Sales Price”), which commission shall be as set forth in or confirmed by, as the case may be, the applicable Agent shall send Forward Transaction Acceptance. Notwithstanding the foregoing, in the event the Company agrees with the Forward Purchaser and Forward Seller regarding a written acceptance sale of Forward Hedge Shares for which the sale of Forward Hedge Shares by the Forward Seller during the Intended Forward Hedge Selling Period would constitute a “distribution,” within the meaning of Rule 100 of Regulation M under the Exchange Act or a “block” within the meaning of Rule 10b-18(a)(5) under the Exchange Act, the Company will provide the Forward Purchaser and Forward Seller at the Forward Purchaser’s and Forward Seller’s request and upon reasonable advance notice to the Company, on or prior to the Forward Hedge Settlement Date the opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 hereof, each dated the Forward Hedge Settlement Date, and such written acceptance other documents and information as the Forward Purchaser and Forward Seller, as applicable, shall set forth the Proposed Confirmation Terms accepted by such Agent. Subject to the terms reasonably request, and conditions hereof and following the delivery of written acceptance by such Agent, the Agent shall use its commercially reasonable efforts, consistent with its normal sales and trading practices for similar forward transactions and applicable law and regulation, to sell as sales agent (whether acting as agent of the Company or as forward seller on behalf of any Forward Purchaser) all of the Borrowed Securities so designated by the Company in a Forward Instruction Notice. With respect to any Forward Instruction Notice accepted by an Agent as forward seller, such Agent shall use commercially reasonable efforts, consistent with its normal sales and trading practices for similar forward transactions and applicable law and regulation, to borrow the number of Securities designated by the Company. Any Confirmation to be entered into between the Company and a Forward Purchaser under this Section 6(d) in connection with a Forward Instruction Notice provided by the Company and accepted by the applicable Agent under this Section 6(d) shall be deemed to include each of the Proposed Confirmation Terms (as set forth in the Agent’s written acceptance) when delivered by the Forward Purchaser and Forward Seller, as applicable, will agree to compensation that is customary for the Forward Seller with respect to such transaction. The Gross Forward Sales Price less the Forward Seller’s commission and after deduction for any transaction fees, transfer taxes or similar taxes or fees imposed by any governmental, regulatory or self-regulatory organization in respect of the sale of the applicable Forward Hedge Shares is referred to herein at the “Net Forward Hedge Price.” (iii) On or before each Forward Hedge Settlement Date, the Forward Purchaser will, or will cause its transfer agent to, electronically transfer the Forward Hedge Shares being sold by crediting the Forward Seller or its designee’s account at The Depository Trust Company for execution unless the Company and by such means of delivery as may be mutually agreed upon by such Forward Purchaser have agreed otherwise and Forward Seller and, upon receipt of such Forward Hedge Shares, which in writing all cases shall be freely tradeable, transferable, registered shares in good deliverable form, such Forward Seller shall deliver the related portion of the Net Forward Hedge Price in same day funds delivered to an account designated by such Forward Purchaser prior to the delivery of relevant Forward Hedge Settlement Date. The “Forward Hedge Settlement Date” means the second (2nd) Exchange Business Day (or such Confirmation earlier day as is industry practice for executionregular-way trading) following each Exchange Business Day during the applicable Forward Hedge Selling Period on which a Forward Seller sells any Forward Hedge Shares pursuant to this Agreement.