(c) as of the date of delivery, Counterparty shall enter into an agreement (a Private Placement Agreement) with JPMorgan (or any Affiliate of JPMorgan designated by JPMorgan) in connection with the private placement of such shares by Counterparty to JPMorgan (or any such Affiliate) and the private resale of such shares by JPMorgan (or any such Affiliate), substantially similar to private placement purchase agreements customary for private placements of equity securities of similar size by issuers similar to Counterparty, in form and substance commercially reasonably satisfactory to JPMorgan, which Private Placement Agreement shall include, without limitation, customary provisions substantially similar to those contained in such private placement purchase agreements relating, without limitation, to the indemnification of, and contribution in connection with the liability of, JPMorgan and its Affiliates and Counterparty using best efforts to deliver documentation (including customary opinions, accountants comfort letters and lawyers negative assurance letters) appropriate for private placements of equity securities of similar size by issuers similar to Counterparty, and shall provide for the payment by Counterparty of a customary portion of all commercially reasonable and documented out-of-pocket fees and expenses of JPMorgan (and any such Affiliate) in connection with such resale, including, without limitation, all reasonable fees and out-of-pocket expenses of counsel for JPMorgan, and shall contain customary representations, warranties, covenants and agreements of Counterparty reasonably necessary or advisable to establish and maintain the availability of an exemption from the registration requirements of the Securities Act for such resales; and
(d) in connection with the private placement of such shares by Counterparty to JPMorgan (or any such Affiliate) and the private resale of such shares by JPMorgan (or any such Affiliate), Counterparty shall, if so reasonably requested by JPMorgan, prepare, in cooperation with JPMorgan, a customary private placement memorandum in form and substance reasonably satisfactory to JPMorgan and consistent with the form and content of private placement memoranda used by JPMorgan in private placements of equity securities of similar size by issuers similar to Counterparty.
5. JPMorgan, itself or through an Affiliate (the Selling Agent) or any underwriter(s), will, in a commercially reasonable manner, sell all, or such lesser portion as may be required hereunder, of the Registered Settlement Shares or Unregistered Settlement Shares and any Makewhole Shares (as defined below) (together, the Settlement Shares) delivered by Counterparty to JPMorgan pursuant to paragraph 6 below commencing on the Cash Settlement Payment Date and continuing until the date on which the aggregate Net Proceeds (as such term is defined below) of such sales, as commercially reasonably determined by JPMorgan, is equal to (or as close as reasonably practicable to) the absolute value of the Forward Cash Settlement Amount (such date, the Final Resale Date). If the proceeds of any sale(s) made by JPMorgan, the Selling Agent or any underwriter(s), net of any commercially reasonable fees and commissions (including, without limitation, commercially reasonable underwriting or placement fees) customary for similar equity offerings of similar size by issuers similar to Counterparty under similar circumstances at the time of the offering, together with commercially reasonable carrying charges and expenses incurred in connection with the offer and sale of the Shares (the Net Proceeds) exceed the absolute value of the Forward Cash Settlement Amount, JPMorgan will refund, in USD or Shares at Counterpartys election, such excess to Counterparty on the date that is three (3) Currency Business Days following the Final Resale Date, and, if any portion of the Settlement Shares remains unsold, JPMorgan shall return to Counterparty on that date such unsold Shares.
6. If the Calculation Agent determines that the Net Proceeds received from the sale of the Registered Settlement Shares or Unregistered Settlement Shares or any Makewhole Shares, if any, pursuant to this paragraph 6 are less than the absolute value of the Forward Cash Settlement Amount (the amount in USD by which the Net Proceeds are less than the absolute value of the Forward Cash Settlement Amount being the Shortfall and the date on which such determination is made and notified to Counterparty, the Deficiency Determination Date), Counterparty shall on the Exchange Business Day next succeeding the Deficiency Determination Date (the Makewhole Notice Date) deliver to JPMorgan, through the Selling Agent, a notice of Counterpartys election that Counterparty shall either (i) pay an amount in cash equal to the Shortfall on the day that is one Currency Business Day after the Makewhole Notice Date, or (ii) deliver additional Shares. If Counterparty elects to deliver to JPMorgan additional Shares, then Counterparty shall deliver additional Shares in compliance with the terms and conditions of paragraph 3 or paragraph 4 above, as the case may be (the Makewhole Shares), in such number as the Calculation Agent commercially reasonably believes would have a market value on the date of delivery equal to the Shortfall, on the first Clearance System Business Day which is also an Exchange Business Day following the date the Calculation Agent notifies Counterparty of such number. Such Makewhole Shares shall be sold by JPMorgan in accordance with the provisions above; provided that if the sum of the Net Proceeds from the sale of the originally delivered Shares and the Net Proceeds from the sale of any Makewhole Shares is less than the absolute value of the Forward Cash Settlement Amount then Counterparty shall, at its election, either make such cash payment or deliver to JPMorgan further Makewhole Shares until such Shortfall has been reduced to zero.