Crucial 2011 Annual Report Download - page 127

Person ”) from and against any and all losses (including losses relating to Dealer’
s hedging activities as a consequence of becoming, or of the risk
of becoming, a Section 16 “insider,”
including without limitation any forbearance from hedging activities or cessation of hedging activities and
any losses in connection therewith with respect to the Transaction), claims, damages and liabilities (or actions in respect thereof), joint or several,
to which such Indemnified Person is subject, including without limitation, Section 16 of the Exchange Act), relating to or arising out of such
failure. If for any reason the foregoing indemnification is unavailable to any Indemnified Person or insufficient to hold harmless any Indemnified
Person, then Counterparty shall contribute, to the maximum extent permitted by law, to the amount paid or payable by the Indemnified Person as a
result of such loss, claim, damage or liability. In addition, Counterparty will reimburse any Indemnified Person for all reasonable expenses
(including reasonable counsel fees and expenses) as they are incurred (after notice to Counterparty) in connection with the investigation of,
preparation for or defense or settlement of any pending or threatened claim or any action, suit or proceeding (including any governmental or
regulatory investigation) arising therefrom, whether or not such Indemnified Person is a party thereto and whether or not such claim, action, suit or
proceeding is initiated or brought by or on behalf of Counterparty. This indemnity shall survive the completion of the Transaction contemplated
by this Confirmation and any assignment and delegation of the Transaction made pursuant to this Confirmation or the Agreement shall inure to the
benefit of any permitted assignee of Dealer. Issuer will not be liable under this indemnity provision to the extent any loss, claim, damage, liability
or expense is found in a final judgment by a court to have resulted from Dealer’s gross negligence or willful misconduct.
8. Transfer or Assignment
. Neither party may transfer any of its rights or obligations under the Transaction without the prior written
consent of the non-
transferring party (such consent not to be unreasonably withheld); provided that if at any time the Equity Percentage exceeds
9%, Dealer may immediately, in its sole discretion, transfer or assign a number of Options sufficient to reduce the Equity Percentage to 8.5% to
any affiliate of Dealer whose obligations are guaranteed by [_____________] or any third party with (or with a guarantor (a “
Third Party
Guarantor ”) that has) a rating for its long-term, unsecured and unsubordinated indebtedness of A-
or better by Standard & Poor's Ratings
Services or its successor (“ S&P ”), or A3 or better by Moody's Investors Service, Inc. (“ Moody's ”)
or, if either S&P or Moody's ceases to rate
such debt, at least an equivalent rating or better by a substitute agency rating 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.
12