(CDLF)
Annex C (General Terms and Conditions) Page 25
either case for such time period as necessary to permit sales pursuant to Rule 144, (y), to the
extent any Holder is relying on the so-called “Section 4(1½)” exemption to sell any of its EQ2
Securities, prepare and provide to such Holder such information, including the preparation of
private offering memoranda or circulars or financial information, as the Holder may reasonably
request to enable the sale of the EQ2 Securities pursuant to such exemption, or (z) to the extent
any Holder is relying on Rule 144A under the Securities Act to sell any of its EQ2 Securities,
prepare and provide to such Holder the information required pursuant to Rule 144A(d)(4), and
(2) it will take such further action as any Holder may reasonably request from time to time to
enable such Holder to sell EQ2 Securities without registration under the Securities Act within the
limitations of the exemptions provided by (i) the provisions of the Securities Act or any
interpretations thereof or related thereto by the SEC, including transactions based on the so-
called “Section 4(1½)” and other similar transactions, (ii) Rule 144 or 144A under the Securities
Act, as such rules may be amended from time to time, or (iii) any similar rule or regulation
hereafter adopted by the SEC; provided that the Company shall not be required to take any action
described in this Section 5.9(a) that would cause the Company to become subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act if the Company was not subject to such
requirements prior to taking such action. Upon the request of any Holder, the Company will
deliver to such Holder a written statement as to whether it has complied with such requirements
and, if not, the specifics thereof.
(b) The Company agrees to indemnify Treasury, Treasury’s officials, officers,
employees, agents, representatives and Affiliates, and each person, if any, that controls Treasury
within the meaning of the Securities Act (each, an “Indemnitee”), against any and all losses,
claims, damages, actions, liabilities, costs and expenses (including reasonable fees, expenses and
disbursements of attorneys and other professionals incurred in connection with investigating,
defending, settling, compromising or paying any such losses, claims, damages, actions,
liabilities, costs and expenses), joint or several, arising out of or based upon any untrue statement
or alleged untrue statement of material fact contained in any document or report provided by the
Company pursuant to this Section 5.9 or any omission to state therein a material fact required to
be stated therein or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(c) If the indemnification provided for in Section 5.9(b) is unavailable to an
Indemnitee with respect to any losses, claims, damages, actions, liabilities, costs or expenses
referred to therein or is insufficient to hold the Indemnitee harmless as contemplated therein,
then the Company, in lieu of indemnifying such Indemnitee, shall contribute to the amount paid
or payable by such Indemnitee as a result of such losses, claims, damages, actions, liabilities,
costs or expenses in such proportion as is appropriate to reflect the relative fault of the
Indemnitee, on the one hand, and the Company, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages, actions, liabilities, costs
or expenses as well as any other relevant equitable considerations. The relative fault of the
Company, on the one hand, and of the Indemnitee, on the other hand, shall be determined by
reference to, among other factors, whether the untrue statement of a material fact or omission to
state a material fact relates to information supplied by the Company or by the Indemnitee and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission; the Company and Treasury agree that it would not be just and
equitable if contribution pursuant to this Section 5.9(c) were determined by pro rata allocation or