Crucial 2011 Annual Report Download - page 125

(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.
(vi) Counterparty is not, and after giving effect to the transactions contemplated hereby will not be, an “investment company”
as such term is defined in the Investment Company Act of 1940, as amended.
(vii) On the Trade Date and on the Premium Payment Date (A) the assets of Counterparty at their fair valuation exceed the
liabilities of Counterparty, including contingent liabilities, (B) the capital of Counterparty is adequate to conduct the business of
Counterparty and (C) Counterparty has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not
believe that it will, incur debt beyond its ability to pay as such debts mature.
(viii) (A) During the period starting on the Trade Date and ending on the day Dealer establishes its initial Hedge Positions
with respect to the Capped Call Transactions (the “ Initial Hedge Period ”),
and during each period starting on the first Expiration Date
and ending on the last Expiration Date (in each case sharing a common Final Disruption Date (each a “ Settlement Period ”)),
the Shares
or securities that are convertible into, or exchangeable or exercisable for Shares shall not be, subject to a “restricted period,”
as such term
is defined in Regulation M under the Exchange Act (“ Regulation M ”) and (B) Counterparty shall not engage in any “distribution,”
as
such term is defined in Regulation M, other than a distribution meeting the requirements of the exceptions set forth in sections 101(b)(10)
and 102(b)(7) of Regulation M, until the second Exchange Business Day immediately following the Initial Hedge Period or the relevant
Settlement Period, as applicable.
(ix) During the Initial Hedge Period, neither Counterparty nor any “affiliate” or “affiliated purchaser” (
each as defined in Rule
10b-18 under the Exchange Act (“ Rule 10b-18 ”)) shall directly or indirectly (including, without limitation, by means of any cash-
settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or
commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited
partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares (including, without
limitation, any Rule 10b-18 purchases of blocks (as defined in Rule 10b-
18)), except through [_____________]. Counterparty represents
and warrants that neither it nor any affiliated purchaser has made any purchases of blocks pursuant to the proviso in Rule 10b-
18(b)(4)
during the four full calendar weeks immediately preceding the start of the Initial Hedge Period.
(x) During each Settlement Period, neither Counterparty nor any “affiliate” or “affiliated purchaser” (
each as defined in Rule
10b-18) shall directly or indirectly (including, without limitation, by means of any cash-
settled or other derivative instrument) purchase,
offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an
equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible
into or exchangeable or exercisable for Shares.
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