Crucial 2011 Annual Report Download - page 105

6. Representations, Warranties and Agreements :
(a) In addition to the representations, warranties and agreements in the Agreement and those contained elsewhere herein, Counterparty
represents and warrants to and for the benefit of, and agrees with, Dealer as follows:
(i) On the Trade Date (A) none of Counterparty and its officers and directors is aware of any material nonpublic information
regarding Counterparty or the Shares and (B) all reports and other documents filed by Counterparty with the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”)
when considered as a whole (with the
more recent such reports and documents deemed to amend inconsistent statements contained in any earlier such reports and documents),
do not contain any untrue statement of a material fact or any omission of a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances in which they were made, not misleading.
(ii) Counterparty intends the Transaction to qualify as an equity instrument for purposes of EITF Issue No. 00-
19 and for
purposes of U.S. Generally Accepted Accounting Principles (“ GAAP ”).
Without limiting the generality of Section 13.1 of the Equity
Definitions, Counterparty acknowledges that Dealer is not making any representations or warranties with respect to the treatment of the
Transaction under any accounting standards including, without limitation, ASC Topic 260, Earnings Per Share
, ASC Topic 815,
Derivatives and Hedging , ASC Topic 480, Distinguishing Liabilities from Equity and ASC 815-40, Derivatives and Hedging
–
Contracts in Entity’s Own Equity (or any successor issue statements) or under FASB’s Liabilities & Equity Project.
(iii) Prior to the Trade Date, Counterparty shall deliver to Dealer a resolution of Counterparty’
s board of directors (or an
authorized committee thereof) authorizing the Transaction and such other certificate or certificates as Dealer shall reasonably request.
(iv) On the Trade Date, without limiting the generality of Section 3(a)(iii) of the Agreement, the Transaction will not violate
Rule 13e-1 or Rule 13e-4 under the Exchange Act.
(v) Counterparty is not entering into this Confirmation to create actual or apparent trading activity in the Shares (or any
security convertible into or exchangeable for Shares) or to manipulate the price of the Shares (or any security convertible into or
exchangeable for Shares) or otherwise in violation of the Exchange Act.
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To: Société Générale
1221 Avenue of the Americas
New York, NY 10020
Attn: Sanjay Garg
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
With a copy to:
Société Générale
1221 Avenue of the Americas
New York, NY 10020
Attn: Steve Milankov
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]