Crucial 2011 Annual Report Download - page 126

(b) Each of Dealer and Counterparty agrees and represents that it is an “eligible contract participant”
as defined in Section 1a(12) of the
U.S. Commodity Exchange Act, as amended.
(c) Each of Dealer and Counterparty acknowledges that the offer and sale of the Transaction to it is intended to be exempt from
registration under the Securities Act of 1933, as amended (the “ Securities Act ”),
by virtue of Section 4(2) thereof. Accordingly, Counterparty
represents and warrants to Dealer and Dealer represents to Counterparty that (i) it has the financial ability to bear the economic risk of its
investment in the Transaction and is able to bear a total loss of its investment and its investments in and liabilities in respect of the Transaction,
which it understands are not readily marketable, are not disproportionate to its net worth, and it is able to bear any loss in connection with the
Transaction, including the loss of its entire investment in the Transaction, (ii) it is an “accredited investor”
as that term is defined in Regulation D
as promulgated under the Securities Act, (iii) it is entering into the Transaction for its own account without a view to the distribution or resale
thereof, (iv) the assignment, transfer or other disposition of the Transaction has not been and will not be registered under the Securities Act and is
restricted under this Confirmation, the Securities Act and state securities laws, (v) its financial condition is such that it has no need for liquidity
with respect to its investment in the Transaction and no need to dispose of any portion thereof to satisfy any existing or contemplated undertaking
or indebtedness and is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and
understands and accepts, the terms, conditions and risks of the Transaction.
(d) Each of Dealer and Counterparty agrees and acknowledges that Dealer is a “financial institution,” “swap participant”
and/or
“financial participant” within the meaning of Sections 101(22), 101(53C) and 101(22A) of Title 11 of the United States Code (the “
Bankruptcy
Code ”). The parties hereto further agree and acknowledge (A) that this Confirmation is (i) a “securities contract,”
as such term is defined in
Section 741(7) of the Bankruptcy Code, with respect to which each payment and delivery hereunder is a “settlement payment,”
as such term is
defined in Section 741(8) of the Bankruptcy Code, and (ii) a “swap agreement,”
as such term is defined in Section 101(53B) of the Bankruptcy
Code, with respect to which each payment and delivery hereunder is a “transfer,”
as such term is defined in Section 101(54) of the Bankruptcy
Code, and (B) that Dealer is entitled to the protections afforded by, among other sections, Sections 362(b)(6), 362(b)(17), 546(e), 546(g), 555 and
560 of the Bankruptcy Code.
(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
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