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CUSIP NO. 057224107 Page 16 of 17
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Client may communicate with Credit Suisse personnel who are not trading
personnel and who are not responsible for, and have no ability to
influence, the execution of this Plan, provided that no such
communication may relate to this Plan or to the activities of Credit
Suisse hereunder.
Subject to the terms set forth in this Plan, Credit Suisse shall have
full discretion with respect to the execution of all sales, and the
Client acknowledges and agrees that it does not have, and shall not
attempt to exercise, any influence over how, when or whether to effect
such sales of Shares pursuant to this Plan.
12. This Plan (i) has been duly authorized by the Client; (ii) is a valid and
binding agreement of the Client, enforceable in accordance with its
terms; and (iii) is not, to the Client’s knowledge, prohibited or
restricted by any legal, regulatory or contractual restriction or
undertaking binding on the Client or any of its subsidiaries or any of
its or their property or assets.
13. The Client has consulted its own advisors as to legal, tax, business,
financial and other relevant aspects of, and has not relied upon Credit
Suisse in connection with, the Client’s adoption of this Plan, and the
Client acknowledges that Credit Suisse is not acting as a fiduciary or an
advisor for the Client. Except as specifically contemplated herein, the
Client shall be solely responsible for compliance with all statutes,
rules and regulations applicable to the Client and the transactions
contemplated hereby, including, without limitation, reporting and filing
requirements.
14. The Client understands that, while the Credit Suisse Monetization
Services Group is executing transactions on behalf of the Client pursuant
to this Plan, other desks at Credit Suisse that are not participating in
such transactions and are unaware of Client sales may continue to make a
market in the Shares or other securities of the Issuer or otherwise trade
the Shares or such other securities for Credit Suisse’s own account or to
facilitate customer transactions. Nothing herein shall preclude the
purchase or sale by Credit Suisse of Shares or other securities of the
Issuer for its own account or its solicitation or execution of orders for
the account of any client. Credit Suisse hereby represents and warrants
that it has implemented reasonable policies and procedures, taking into
consideration the nature of Credit Suisse’s business, to ensure that
individuals making investment decisions will not violate the laws
prohibiting trading on the basis of material, nonpublic information.
15. This Plan shall be governed by and construed in accordance with the laws
of the State of New York, without regard to such State’s conflict of laws
rules to the extent such rules may result in the application of the law
of any other state or jurisdiction.
16. The Client and Credit Suisse acknowledge and agree that this Agreement is
a “securities contract”, as such term is defined in Section 741(7) of
Title 11 of the United States Code (the “Bankruptcy Code”), entitled to
all of the protections given such contracts under the Bankruptcy Code.
