Crucial 2011 Annual Report Download - page 109

the avoidance of doubt, the parties acknowledge that this Confirmation is not secured by any collateral that would otherwise secure the obligations
of Counterparty herein under or pursuant to any other agreement.
13. Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events
. If Dealer shall owe
Counterparty any amount pursuant to Section 12.2 of the Equity Definitions and “Consequences of Merger Events”
above, or Sections 12.3, 12.6,
12.7 or 12.9 of the Equity Definitions (except in the event of a Tender Offer or a Merger Event, in each case, in which the consideration or
proceeds to be paid to holders of Shares consists solely of cash) or pursuant to Section 6(d)(ii) of the Agreement (except in the event of an Event
of Default in which Counterparty is the Defaulting Party or a Termination Event in which Counterparty is the Affected Party, that resulted from an
event or events within Counterparty’s control) (a “ Payment Obligation ”),
Counterparty shall have the right, in its sole discretion, to require
Dealer to satisfy any such Payment Obligation by the Share Termination Alternative (as defined below) by giving irrevocable telephonic notice to
Dealer, confirmed in writing within one Scheduled Trading Day, between the hours of 9:00 A.M. and 4:00 P.M. New York City time on the
Merger Date, Tender Offer Date, Announcement Date, Early Termination Date or other date of termination, as applicable (“
Notice of Share
Termination ”).
Within a commercially reasonable period of time following receipt of a Notice of Share Termination, Dealer shall deliver to
Counterparty a number of Share Termination Delivery Units having a cash value equal to the amount of such Payment Obligation (such number of
Share Termination Delivery Units to be delivered to be determined by the Calculation Agent as the number of whole Share Termination Delivery
Units that could be purchased over a commercially reasonable period of time with the cash equivalent of such payment obligation) (the “
Share
Termination Alternative ”).
14. Set-Off . The parties agree to amend Section 6 of the Agreement by replacing Section 6(f) in its entirety with the following:
“(f) Upon the occurrence of an Event of Default or Termination Event with respect to a party who is the Defaulting Party or
the Affected Party (“ X ”), the other party (“ Y ”) will have the right (but not be obliged) without prior notice to X or any
other person to set-off or apply any obligation of X under an Equity Contract owed to Y (or any Affiliate of Y) (whether or
not matured or contingent and whether or not arising under the Agreement, and regardless of the currency, place of payment
or booking office of the obligation) against any obligation of Y (or any Affiliate of Y)
14
Share Termination Delivery Unit:
In the case of a Termination Event, Event of Default, Delisting or Additional Disruption Event, one Share or,
in the case of an Insolvency, Nationalization, Merger Event or Tender Offer, one Share or a unit consisting of
the number or amount of each type of property received by a holder of one Share (without consideration of
any requirement to pay cash or other consideration in lieu of fractional amounts of any securities) in such
Insolvency, Nationalization, Merger Event or Tender Offer. If such Insolvency, Nationalization, Merger Event
or Tender Offer involves a choice of consideration to be received by holders, such holder shall be deemed to
have elected to receive the maximum possible amount of cash.
Failure to Deliver: Applicable
Other applicable provisions:
If Share Termination Alternative is applicable, the provisions of Sections 9.8, 9.9, 9.10, 9.11 and 9.12 of the
Equity Definitions will be applicable as if Physical Settlement applied to the termination of the Transaction,
except that all references to “Shares” shall be read as references to “Share Termination Delivery Units”;
and
provided
that the Representation and Agreement contained in Section 9.11 of the Equity Definitions shall be
modified by excluding any representations therein relating to restrictions, obligations, limitations or
requirements under applicable securities laws as a result of the fact that Buyer is the issuer of any Share
Termination Delivery Units (or any part thereof).