Crucial 2011 Annual Report Download - page 128

9. Staggered Settlement
. If Dealer determines reasonably and in good faith that the number of Shares required to be delivered to
Counterparty hereunder on any Settlement Date would have resulted in the Equity Percentage (as defined above) on such date to exceed 4.9%,
then Dealer may, by notice to Counterparty on or prior to such Settlement Date (a “ Nominal Settlement Date ”),
elect to deliver the Shares
comprising the related Number of Shares to be Delivered on two or more dates (each, a “ Staggered Settlement Date ”)
or at two or more times
on the Nominal Settlement Date as follows:
(a) in such notice, Dealer will specify to Counterparty the related Staggered Settlement Dates (the first of which will be such Nominal
Settlement Date and the last of which will be no later than twenty (20) Scheduled Trading Days following such Nominal Settlement Date) or
delivery times and how it will allocate the Shares it is required to deliver hereunder among the Staggered Settlement Dates or delivery times; and
(b) the aggregate number of Shares that Dealer will deliver to Counterparty hereunder on all such Staggered Settlement Dates or
delivery times will equal the number of Shares that Dealer would otherwise have been required to deliver on such Nominal Settlement Date.
10. Extension of Settlement
. Dealer may divide any Component into additional Components and designate the Expiration Date, the
Final Disruption Date and the Number of Options for each such Component if Dealer determines, in its reasonable discretion, that such further
division is necessary or advisable to preserve Dealer’
s hedging activity hereunder in light of existing liquidity conditions or to enable Dealer to
effect purchases of Shares in connection with its hedging activity hereunder in a manner that would, if Dealer were Counterparty or an affiliated
purchaser of Counterparty, be compliant with applicable legal and regulatory requirements.
11. Early Termination Right
. Counterparty may elect to terminate the Transaction, in whole or in part, prior to the relevant Expiration
Date, on terms acceptable to both parties, and, if such termination occurs following the payment of the premiums for all Components, without any
payment being owed from Counterparty to Dealer.
12. Equity Rights
. Dealer acknowledges and agrees that this Confirmation is not intended to convey to it rights with respect to the
Transaction that are senior to the claims of common stockholders in the event of Counterparty’
s bankruptcy. For the avoidance of doubt, the
parties agree that the preceding sentence shall not apply at any time other than during Counterparty’
s bankruptcy to any claim arising as a result of
a breach by Counterparty of any of its obligations under this Confirmation or the Agreement. For 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 ”).
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