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.

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.

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.

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.

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.

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.

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.

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.