(c) No Material Misstatement or Omission. The Agent shall not have advised the
Company that the Registration Statement or the Prospectus contains an untrue statement of fact which, in the Agents reasonable opinion, is material, or omits to state a fact which, in the Agents reasonable opinion, is material and is
required to be stated therein or necessary to make the statements therein not misleading.
(d) No Material Adverse Change. Except
as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Prospectus, no event or condition of a type described in Section 1(a)(viii) hereof shall have occurred or shall exist, the effect of
which, in the judgment of the Agent, makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the terms and in the manner contemplated by this Agreement and the Prospectus.
(e) No Rating Downgrade. On or after each Applicable Time, (i) no downgrading shall have occurred in the rating accorded any of
the Companys securities by any nationally recognized statistical organization, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and (ii) no such organization shall have
publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Companys securities, in each case the effect of which, in the reasonable judgment of the Agent, makes it impracticable
or inadvisable to proceed with the offering, sale or delivery of the Shares on the terms and in the manner contemplated by this Agreement and the Prospectus.
(f) Compliance with Certain Obligations. The Company shall have performed each of its obligations under Section 3(o) 3(q)
and Section 3(v).
(g) Opinion of the Agents Counsel. On or prior to the first Placement Notice and on each
Representation Date to which a waiver under Section 3(o) does not apply, there shall have been furnished to the Agent the opinion and negative assurance letter of Simpson Thacher & Bartlett LLP, counsel for the Agent, dated as of such
date and addressed to the Agent, in a form reasonably satisfactory to the Agent, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters; provided, however, the opinion
of Simpson Thacher & Bartlett LLP shall only be required on or prior to the first Placement Notice, and thereafter, only a negative assurance letter of such counsel shall be required for each subsequent Representation Date.
(h) Representation Certificate. On or prior to the first Placement Notice, the Agent shall have received the Representation Certificate
in form and substance satisfactory to the Agent and its counsel.
(i) No Objection by FINRA. FINRA shall have raised no objection
to the fairness and reasonableness of the sales agent terms and arrangements.
(j) Timely Filing of Prospectus and Prospectus
Supplement. All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date, as the case may be, shall have been made within the applicable time period prescribed for such filing by Rule
424 under the Securities Act.
(k) Additional Documents and Certificates. The Company shall have furnished to the Agent and the
Agents counsel such additional documents, certificates and evidence as they may have reasonably requested.
All opinions,
certificates, letters and other documents described in this Section 4 will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent and the Agents counsel. The Company will
furnish the Agent with such conformed copies of such opinions, certificates, letters and other documents as the Agent shall reasonably request.
5. Indemnification and Contribution.
(a) Company Indemnification. The Company agrees to indemnify and hold harmless the Agent, its affiliates, directors, officers and employees,
and each person, if any, who controls the Agent within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act against any losses, claims, damages or liabilities, joint or several, to which the Agent may become
subject, under the Securities Act or otherwise (including in settlement of any litigation), insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon, in whole or in part:
(i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, including the Rule 430B
Information (as defined below) and at any subsequent time pursuant to Rules 430A and 430B promulgated under the Securities Act, and any other information deemed to be part of the Registration Statement at the time of effectiveness, and at any
subsequent time pursuant to the Securities Act or the Exchange Act, and the Prospectus, or any amendment or supplement thereto (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus), any
Permitted Free Writing Prospectus, or any roadshow as defined in Rule 433(h) under the Securities Act (a road show), or an omission or alleged omission to state therein a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were made, not misleading;
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