Crucial 2011 Annual Report Download - page 111

19. Disposition of Hedge Shares
. Counterparty hereby agrees that if at any time, in the reasonable judgment of counsel for the Dealer,
the Shares acquired by Dealer for the purpose of hedging its obligations pursuant to the Transaction (other than such Shares, if any, that are, at the
time of such determination, due to be delivered to Counterparty in connection with a Net Share Settlement of the Transaction) (the “
Hedge
Shares ”),
cannot be sold in the U.S. public market by Dealer without registration under the Securities Act, Counterparty shall, at its election: (i)
in order to allow Dealer to sell the Hedge Shares in a registered offering, use its commercially reasonable efforts to make available to Dealer an
effective registration statement under the Securities Act to cover the resale of such Hedge Shares and (A) enter into an agreement, in form and
substance reasonably satisfactory to Dealer, substantially in the form of an underwriting agreement for a registered offering, (B) provide
accountant’s “comfort”
letters in customary form for registered offerings of equity securities, (C) provide disclosure opinions of nationally
recognized outside counsel to Counterparty customary in form for registered offerings of equity securities, (D) provide other customary opinions,
certificates and closing documents customary in form for registered offerings of equity securities and (E) afford Dealer a reasonable opportunity to
conduct a “due diligence” investigation with respect to Counterparty customary in scope for underwritten offerings of equity securities;
provided,
however
, that if Dealer, in its reasonable discretion, is not satisfied with access to due diligence materials, the results of its due diligence
investigation, or the procedures and documentation for the registered offering referred to above, then clause (ii) or clause (iii) of this Section 19
shall apply at the election of Counterparty; (ii) in order to allow Dealer to sell the Hedge Shares in a private placement, enter into a private
placement agreement substantially similar to private placement purchase agreements customary for private placements of equity securities, in
form and substance reasonably satisfactory to Dealer, including customary representations, covenants, blue sky and other governmental filings
and/or registrations, indemnities to Dealer, due diligence rights (for Dealer or any designated buyer of the Hedge Shares from Dealer), opinions
and certificates and such other documentation as is customary for private placements agreements, all reasonably acceptable to Dealer (in which
case, the Calculation Agent shall make any adjustments to the terms of the Transaction that are necessary, in its reasonable judgment, to
compensate Dealer for any discount from the public market price of the Shares incurred on the sale of Hedge Shares in a private placement); or
(iii) purchase the Hedge Shares from Dealer at the VWAP Price on such Exchange Business Days, and in the amounts, as requested by Dealer.
20. Opinion of Counsel
. Counterparty shall deliver an opinion of counsel, dated as of the Trade Date, in substantially the form
attached hereto as Annex B.
21. Illegality . The parties agree that for the avoidance of doubt, for purposes of Section 5(b)(i) of the Agreement, “any applicable law”
shall include the Dodd-Frank, without regard to Section 739 of the Dodd-
Frank or any similar legal certainty provision in any legislation enacted,
or rule or regulation promulgated, on or after the date on which a Transaction is entered into, and the consequences specified in the Agreement,
including without limitation, the consequences specified in Section 6 of the Agreement, shall apply to any Illegality arising from any such act, rule
or regulation.
22. Waiver of Trial by Jury .
EACH OF COUNTERPARTY AND DEALER HEREBY IRREVOCABLY WAIVES (ON ITS
OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS STOCKHOLDERS) ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT,
TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE TRANSACTION OR THE ACTIONS OF DEALER OR ITS
AFFILIATES OR COUNTERPARTY OR ITS AFFILIATES IN THE NEGOTIATION, PERFORMANCE OR ENFORCEMENT
HEREOF.
23. Governing Law . THE AGREEMENT AND
THIS CONFIRMATION SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK. THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK IN CONNECTION WITH ALL MATTERS RELATING HERETO AND WAIVE ANY OBJECTION TO THE LAYING OF
VENUE IN, AND ANY CLAIM OF INCONVENIENT FORUM WITH RESPECT TO, THESE COURTS.
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