Crucial 2011 Annual Report Download - page 107

(e) Counterparty hereby agrees and acknowledges that the Transaction has not been registered with the Securities and Exchange
Commission or any state securities commission and that the Options are being written by Dealer to Counterparty in reliance upon exemptions
from any such registration requirements. Counterparty acknowledges that all Options acquired from Dealer will be acquired for investment
purposes only and not for the purpose of resale or other transfer except in compliance with the requirements of the Securities Act. Counterparty
will not sell or otherwise transfer any Option or any interest therein except in compliance with the requirements of the Securities Act and any
subsequent offer or sale of the Options will be solely for Counterparty’
s account and not as part of a distribution that would be in violation of the
Securities Act.
(f) Each party acknowledges and agrees to be bound by the Conduct Rules of the Financial Industry Regulatory Authority, Inc.
applicable to transactions in options, and further agrees not to violate the position and exercise limits set forth therein.
7. Repurchase Notices
. Counterparty shall, on any day on which Counterparty effects any repurchase of Shares, promptly give Dealer
a written notice of such repurchase (a “ Repurchase Notice ”)
on such day if following such repurchase, the Notice Percentage as determined on
such day is greater by 0.5% than the Notice Percentage included in the immediately preceding Repurchase Notice (or, in the case of the first such
Repurchase Notice or the first such Repurchase Notice after the initial Expiration Date, greater than 4.5%). The “ Notice Percentage ”
as of any
day is the fraction (A) the numerator of which is the aggregate of the Number of Shares for all Components under the Transaction and under any
other Capped Call Transactions between Dealer and Counterparty and (B) the denominator of which is the number of Shares outstanding on such
day. In the event that Counterparty fails to provide Dealer with a Repurchase Notice on the day and in the manner specified in this Section 7, then
Counterparty to the extent permitted by law agrees to indemnify and hold harmless Dealer, its affiliates and their respective directors, officers,
employees, agents and controlling persons (Dealer and each such person being an “ Indemnified Person ”)
from and against any and all losses
(including losses relating to Dealer’s hedging activities as a consequence of becoming, or of the risk of becoming, a Section 16 “insider,”
including without limitation any forbearance from hedging activities or cessation of hedging activities and any losses in connection therewith with
respect to the Transaction), claims, damages and liabilities (or actions in respect thereof), joint or several, to which such Indemnified Person is
subject, including without limitation, Section 16 of the Exchange Act), relating to or arising out of such failure. If for any reason the foregoing
indemnification is unavailable to any Indemnified Person or insufficient to hold harmless any Indemnified Person, then Counterparty shall
contribute, to the maximum extent permitted by law, to the amount paid or payable by the Indemnified Person as a result of such loss, claim,
damage or liability. In addition, Counterparty will reimburse any Indemnified Person for all reasonable expenses (including reasonable counsel
fees and expenses) as they are incurred (after notice to Counterparty) in connection with the investigation of, preparation for or defense or
settlement of any pending or threatened claim or any action, suit or proceeding (including any governmental or regulatory investigation) arising
therefrom, whether or not such Indemnified Person is a party thereto and whether or not such claim, action, suit or proceeding is initiated or
brought by or on behalf of Counterparty. This indemnity shall survive the completion of the Transaction contemplated by this Confirmation and
any assignment and delegation of the Transaction made pursuant to this Confirmation or the Agreement shall inure to the benefit of any permitted
assignee of Dealer. Issuer will not be liable under this indemnity provision to the extent any loss, claim, damage, liability or expense is found in a
final judgment by a court to have resulted from Dealer’s gross negligence or willful misconduct.
8. Transfer or Assignment
. Neither party may transfer any of its rights or obligations under the Transaction without the prior written
consent of the non-
transferring party (such consent not to be unreasonably withheld); provided that if at any time the Equity Percentage exceeds
9%, Dealer may immediately, in its sole discretion, transfer or assign a number of Options sufficient to reduce the Equity Percentage to 8.5% to
any affiliate of Dealer whose obligations are guaranteed by Société Générale or any third party with (or with a guarantor (a “
Third Party
Guarantor ”) that has) a rating for its long-term, unsecured and unsubordinated indebtedness of A-
or better by Standard & Poor's Ratings
Services or its successor (“ S&P ”), or A3 or better by Moody's Investors Service, Inc. (“ Moody's ”)
or, if either S&P or Moody's ceases to rate
such debt, at least an equivalent rating or better by a substitute agency rating
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