Crucial 2011 Annual Report Download - page 129

14. Set-Off . The parties agree to amend Section 6 of the Agreement by replacing Section 6(f) in its entirety with the following:
“(f) Upon the occurrence of an Event of Default or Termination Event with respect to a party who is the Defaulting Party or
the Affected Party (“ X ”), the other party (“ Y ”) will have the right (but not be obliged) without prior notice to X or any
other person to set-off or apply any obligation of X under an Equity Contract owed to Y (or any Affiliate of Y) (whether or
not matured or contingent and whether or not arising under the Agreement, and regardless of the currency, place of payment
or booking office of the obligation) against any obligation of Y (or any Affiliate of Y) under an Equity Contract owed to X
(whether or not matured or contingent and whether or not arising under the Agreement, and regardless of the currency,
place of payment or booking office of the obligation). Y will give notice to the other party of any set-off effected under this
Section 6(f).
“ Equity Contract ” shall mean for purposes of this Section 6(f) any transaction relating to Shares between X and Y (or
any Affiliate of Y) that qualifies as ‘equity’ under applicable accounting rules.
Amounts (or the relevant portion of such amounts) subject to set-off may be converted by Y into the Termination Currency
at the rate of exchange at which such party would be able, acting in a reasonable manner and in good faith, to purchase the
relevant amount of such currency.
If any obligation is unascertained, Y may in good faith estimate that obligation and set-off in respect of the estimate, subject
to the relevant party accounting to the other when the obligation is ascertained.
Nothing in this Section 6(f) shall be effective to create a charge or other security interest. This Section 6(f) shall be without
prejudice and in addition to any right of set-off, combination of accounts, lien or other right to which any party is at any
time otherwise entitled (whether by operation of law, contract or otherwise).”
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Share Termination Delivery Unit:
In the case of a Termination Event, Event of Default, Delisting or Additional Disruption Event, one Share or,
in the case of an Insolvency, Nationalization, Merger Event or Tender Offer, one Share or a unit consisting of
the number or amount of each type of property received by a holder of one Share (without consideration of
any requirement to pay cash or other consideration in lieu of fractional amounts of any securities) in such
Insolvency, Nationalization, Merger Event or Tender Offer. If such Insolvency, Nationalization, Merger Event
or Tender Offer involves a choice of consideration to be received by holders, such holder shall be deemed to
have elected to receive the maximum possible amount of cash.
Failure to Deliver: Applicable
Other applicable provisions:
If Share Termination Alternative is applicable, the provisions of Sections 9.8, 9.9, 9.10, 9.11 and 9.12 of the
Equity Definitions will be applicable as if Physical Settlement applied to the termination of the Transaction,
except that all references to “Shares” shall be read as references to “Share Termination Delivery Units”;
and
provided
that the Representation and Agreement contained in Section 9.11 of the Equity Definitions shall be
modified by excluding any representations therein relating to restrictions, obligations, limitations or
requirements under applicable securities laws as a result of the fact that Buyer is the issuer of any Share
Termination Delivery Units (or any part thereof).