Crucial 2011 Annual Report Download - page 108

mutually agreed by Counterparty and Dealer; provided however such Third Party Guarantor shall provide a guarantee in a form reasonably
satisfactory to the Counterparty in connection with such transfer or assignment; provided further
that the Dealer provide prompt notice to
Counterparty of any such transfer. If, in the discretion of Dealer, Dealer is unable to effect such transfer or assignment after its commercially
reasonable efforts on pricing terms reasonably acceptable to Dealer, Dealer may designate any Scheduled Trading Day as an Early Termination
Date and an Additional Termination Date shall be deemed to occur with respect to a portion (the “ Terminated Portion ”)
of the Transaction,
allocated to Components as Dealer determines in its discretion, such that the Equity Percentage following such partial termination will be equal to
or less than 8.5%. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment shall be
made pursuant to Section 6 of the Agreement as if (i) an Early Termination Date had been designated in respect of a Transaction having terms
identical to the Transaction and a Number of Options equal to the Terminated Portion, (ii) Counterparty shall be the Affected Party with respect to
such partial termination and (iii) such portion of the Transaction shall be the only Affected Transaction. The “ Equity Percentage ”
as of any day
is the fraction (A) the numerator of which is the number of Shares that Dealer or any of its affiliates that are subject to aggregation with Dealer
beneficially own (within the meaning of Section 13 of the Exchange Act) on such day and (B) the denominator of which is the number of Shares
outstanding on such day. Notwithstanding Section 7 of the Agreement, Counterparty may assign its rights and obligations under the Transaction,
in whole or in part, on terms reasonably acceptable to both parties, without any payment being owed from Counterparty to Dealer.
9. Staggered Settlement
. If Dealer determines reasonably and in good faith that the number of Shares required to be delivered to
Counterparty hereunder on any Settlement Date would have resulted in the Equity Percentage (as defined above) on such date to exceed 4.9%,
then Dealer may, by notice to Counterparty on or prior to such Settlement Date (a “ Nominal Settlement Date ”),
elect to deliver the Shares
comprising the related Number of Shares to be Delivered on two or more dates (each, a “ Staggered Settlement Date ”)
or at two or more times
on the Nominal Settlement Date as follows:
(a) in such notice, Dealer will specify to Counterparty the related Staggered Settlement Dates (the first of which will be such Nominal
Settlement Date and the last of which will be no later than twenty (20) Scheduled Trading Days following such Nominal Settlement Date) or
delivery times and how it will allocate the Shares it is required to deliver hereunder among the Staggered Settlement Dates or delivery times; and
(b) the aggregate number of Shares that Dealer will deliver to Counterparty hereunder on all such Staggered Settlement Dates or
delivery times will equal the number of Shares that Dealer would otherwise have been required to deliver on such Nominal Settlement Date.
10. Extension of Settlement
. Dealer may divide any Component into additional Components and designate the Expiration Date, the
Final Disruption Date and the Number of Options for each such Component if Dealer determines, in its reasonable discretion, that such further
division is necessary or advisable to preserve Dealer’
s hedging activity hereunder in light of existing liquidity conditions or to enable Dealer to
effect purchases of Shares in connection with its hedging activity hereunder in a manner that would, if Dealer were Counterparty or an affiliated
purchaser of Counterparty, be compliant with applicable legal and regulatory requirements.
11. Early Termination Right
. Counterparty may elect to terminate the Transaction, in whole or in part, prior to the relevant Expiration
Date, on terms acceptable to both parties, and, if such termination occurs following the payment of the premiums for all Components, without any
payment being owed from Counterparty to Dealer.
12. Equity Rights
. Dealer acknowledges and agrees that this Confirmation is not intended to convey to it rights with respect to the
Transaction that are senior to the claims of common stockholders in the event of Counterparty’
s bankruptcy. For the avoidance of doubt, the
parties agree that the preceding sentence shall not apply at any time other than during Counterparty’
s bankruptcy to any claim arising as a result of
a breach by Counterparty of any of its obligations under this Confirmation or the Agreement. For
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