<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
----------
SCHEDULE 13D
(RULE 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO 13d-1(a) AND
AMENDMENTS THERETO FILED PURSUANT TO 13d-2(a)
(AMENDMENT NO. 13)
RF Micro Devices, Inc.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock
- --------------------------------------------------------------------------------
(Title of Class of Securities)
749941 10 0
- --------------------------------------------------------------------------------
(CUSIP Number)
William B. Lawrence
TRW Inc.
1900 Richmond Road, 3E
Cleveland, Ohio 44124
(216) 291-7230
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
February 10, 2000
- --------------------------------------------------------------------------------
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box __.
(Continued on following pages)
(Page 1 of 8 Pages)
<PAGE> 2
13D
CUSIP NO. 749941 10 0
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
TRW Inc. ("TRW"), I.D. #34-0575430
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)
---
(b)
---
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC, OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) or 2(e)
---
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Ohio
NUMBER OF 7 SOLE VOTING POWER 11,923,448
SHARES ----------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY ----------------------
EACH 9 SOLE DISPOSITIVE POWER 9,923,448
REPORTING ----------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER 2,000,000*
----------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11,923,448
----------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
----------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.9 percent
14 TYPE OF REPORTING PERSON
CO
*These shares are the subject of a series of agreements between TRW Inc. and
Goldman, Sachs & Co. pursuant to which TRW has pledged 2,000,000 shares as
collateral to secure its obligations under the agreements. The agreements are
described at Item 6 of this Amendment No. 13 to Schedule 13D.
(Page 2 of 8 Pages)
<PAGE> 3
SCHEDULE 13D
This Amendment No. 13 on Schedule 13D amends the beneficial ownership statement
initially filed on February 12, 1998 on Schedule 13G, as amended by Amendment
No. 1 on Schedule 13D filed on June 29, 1998, Amendment No. 2 on Schedule 13D
filed on September 18, 1998, Amendment No. 3 on Schedule 13D filed on February
3, 1999, Amendment No. 4 on Schedule 13D filed on April 29, 1999, Amendment No.
5 on Schedule 13D filed on June 1, 1999, Amendment No. 6 on Schedule 13D filed
on June 9, 1999, Amendment No. 7 on Schedule 13D filed on October 5, 1999,
Amendment No. 8 on Schedule 13D filed on October 12, 1999, Amendment No. 9 on
Schedule 13D filed on November 18, 1999, Amendment No. 10 on Schedule 13D filed
on December 7, 1999, Amendment No. 11 on Schedule 13D filed on January 4, 2000
and Amendment No. 12 on Schedule 13D filed on January 25, 2000 (collectively,
the "Schedule 13D"), pursuant to Rule 13d-1(d) under the Securities Exchange Act
of 1934, as amended, by TRW Inc., an Ohio corporation ("TRW"). This statement is
being filed to reflect (i) TRW's sale, in the aggregate, of 532,500 shares of
common stock, no par value ("Common Stock"), of RF Micro Devices, Inc. ("RFMD"),
executed in multiple trades between January 25, 2000 and February 4, 2000, in
accordance with Rule 144 under the Securities Act of 1933, as amended, and (ii)
the execution of a series of agreements on February 10, 2000, to sell up to
2,000,000 shares of Common Stock to Goldman, Sachs & Co. Unless otherwise
defined herein, all capitalized terms used herein shall have the respective
meanings given such terms in the Schedule 13D. Except as modified herein, there
have been no other changes in the information previously reported in the
Schedule 13D.
Item 5. Interest in Securities of the Issuer.
- ------ ------------------------------------
Paragraphs (a), (b), (c) and (d) of Item 5 of the Schedule 13D are amended by
deleting them in their entirety and replacing them with the following:
(a) TRW beneficially owns 11,923,448 shares of Common Stock. The number of
shares of Common Stock beneficially owned by TRW represents 14.9 percent of the
79,809,699 shares of Common Stock outstanding as of February 1, 2000. The
Directors and executive officers of TRW disclaim beneficial ownership of these
shares.
(b) TRW has sole voting power with respect to 11,923,448 shares. TRW has sole
dispositive power with respect to 9,923,448 shares. The remaining 2,000,000
shares beneficially owned by TRW have been pledged as collateral to secure TRW's
obligations under a series of agreements between TRW and Goldman, Sachs & Co.
("GS&Co."). See Item 6 of this Schedule 13D for a description of these
agreements.
(c) On January 25, 2000, TRW sold 32,500 shares of Common Stock of RFMD in four
different trades as follows:
- --------------------------------------------------------------------------------
NUMBER OF SHARES PRICE PER SHARE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
10,000 $91.00
- --------------------------------------------------------------------------------
10,000 91.00
- --------------------------------------------------------------------------------
10,000 91.00
- --------------------------------------------------------------------------------
2,500 91.00
- --------------------------------------------------------------------------------
The prices set forth above do not reflect selling commissions and/or fees of
approximately .003 percent on each of these transactions.
(Page 3 of 8 Pages)
<PAGE> 4
On February 1, 2000, TRW sold an additional 105,000 shares of Common Stock of
RFMD in eleven different trades as follows:
- --------------------------------------------------------------------------------
NUMBER OF SHARES PRICE PER SHARE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
15,000 $80.0000
- --------------------------------------------------------------------------------
10,000 80.0000
- --------------------------------------------------------------------------------
10,000 80.1250
- --------------------------------------------------------------------------------
7,500 80.0000
- --------------------------------------------------------------------------------
12,500 80.0000
- --------------------------------------------------------------------------------
10,000 80.1250
- --------------------------------------------------------------------------------
5,000 80.2500
- --------------------------------------------------------------------------------
15,000 80.2500
- --------------------------------------------------------------------------------
7,500 80.5000
- --------------------------------------------------------------------------------
7,500 80.7500
- --------------------------------------------------------------------------------
5,000 81.0000
- --------------------------------------------------------------------------------
The prices set forth above do not reflect selling commissions and/or fees of
approximately .003 percent on each of these transactions.
On February 2, 2000, TRW sold an additional 127,500 shares of Common Stock of
RFMD in fifteen different trades as follows:
- --------------------------------------------------------------------------------
NUMBER OF SHARES PRICE PER SHARE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
15,000 $81.0000
- --------------------------------------------------------------------------------
10,000 81.2500
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10,000 81.5000
- --------------------------------------------------------------------------------
7,500 81.7500
- --------------------------------------------------------------------------------
7,500 82.0000
- --------------------------------------------------------------------------------
5,000 85.5000
- --------------------------------------------------------------------------------
2,500 85.0000
- --------------------------------------------------------------------------------
12,500 85.0000
- --------------------------------------------------------------------------------
10,000 85.0000
- --------------------------------------------------------------------------------
5,000 85.0000
- --------------------------------------------------------------------------------
7,500 85.3750
- --------------------------------------------------------------------------------
7,500 85.8750
- --------------------------------------------------------------------------------
2,500 86.3750
- --------------------------------------------------------------------------------
5,000 86.2500
- --------------------------------------------------------------------------------
20,000 86.2500
- --------------------------------------------------------------------------------
The prices set forth above do not reflect selling commissions and/or fees of
approximately .003 percent on each of these transactions.
(Page 4 of 8 Pages)
<PAGE> 5
On February 3, 2000, TRW sold an additional 250,000 shares of Common Stock of
RFMD in twenty-two different trades as follows:
- --------------------------------------------------------------------------------
NUMBER OF SHARES PRICE PER SHARE
- --------------------------------------------------------------------------------
10,000 $88.7500
- --------------------------------------------------------------------------------
15,000 88.7500
- --------------------------------------------------------------------------------
15,000 88.7500
- --------------------------------------------------------------------------------
10,000 89.1250
- --------------------------------------------------------------------------------
10,000 89.7500
- --------------------------------------------------------------------------------
15,000 89.8750
- --------------------------------------------------------------------------------
15,000 89.5000
- --------------------------------------------------------------------------------
10,000 89.3750
- --------------------------------------------------------------------------------
20,000 89.5000
- --------------------------------------------------------------------------------
15,000 89.6875
- --------------------------------------------------------------------------------
15,000 89.6250
- --------------------------------------------------------------------------------
10,000 89.8750
- --------------------------------------------------------------------------------
10,000 89.9375
- --------------------------------------------------------------------------------
15,000 90.1250
- --------------------------------------------------------------------------------
15,000 90.6250
- --------------------------------------------------------------------------------
15,000 93.0000
- --------------------------------------------------------------------------------
2,500 92.5000
- --------------------------------------------------------------------------------
2,500 92.2500
- --------------------------------------------------------------------------------
2,500 92.0000
- --------------------------------------------------------------------------------
10,000 92.0000
- --------------------------------------------------------------------------------
5,000 92.2500
- --------------------------------------------------------------------------------
12,500 92.0000
- --------------------------------------------------------------------------------
The prices set forth above do not reflect selling commissions and/or fees of
approximately .003 percent on each of these transactions.
On February 4, 2000, TRW sold an additional 17,500 shares of Common Stock of
RFMD in three different trades as follows:
- --------------------------------------------------------------------------------
NUMBER OF SHARES PRICE PER SHARE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
2,500 $95.0000
- --------------------------------------------------------------------------------
10,000 95.0000
- --------------------------------------------------------------------------------
5,000 95.2500
- --------------------------------------------------------------------------------
The prices set forth above do not reflect selling commissions and/or fees of
approximately .003 percent on each of these transactions.
All of these shares were sold in accordance with Rule 144 under the Securities
Act of 1933, as amended. Except for the foregoing, no transactions have been
effected in the Common Stock of RFMD by TRW or, to the best knowledge of TRW, by
its Directors and executive officers since the filing of Amendment No. 12 to
this Schedule 13D on January 25, 2000.
(d) With respect to the 2,000,000 shares of Common Stock that are pledged to
GS&Co. as described in Item 6 of this Schedule 13D, upon any default by TRW,
GS&Co. would have all of the rights with respect to the 2,000,000 pledged shares
of Common Stock of a secured party
(Page 5 of 8 Pages)
<PAGE> 6
under the New York Uniform Commercial Code, including the right to receive
dividends on the pledged shares and to sell or otherwise dispose of the shares.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
- ------- ---------------------------------------------------------------------
to Securities of the Issuer.
----------------------------
Item 6 is amended by adding the following at the conclusion thereof:
On February 10, 2000, TRW and GS&Co. entered into three agreements (the
"Agreements"), pursuant to which TRW will sell, in the aggregate, up to
2,000,000 shares of Common Stock of RFMD to GS&Co. The precise maximum number of
shares to be sold will be determined by the number of shares that GS&Co. is able
to sell between February 10, 2000, and the 20th trading day thereafter (the
"Last Sale Date"). Upon the earlier of the sale of 2,000,000 shares or the Last
Sale Date, GS&Co. will notify TRW of the average price per share at which GS&Co.
effected such sales (the "Agency Execution Price"). On the third business day
after the Last Sale Date, GS&Co. will deliver to TRW:
(a) in respect of the first contract (pursuant to which TRW will sell a maximum
amount of 666,667 shares of Common Stock), 80.48 percent of the Agency
Execution Price times the number of shares to be sold by TRW to GS&Co.;
(b) in respect of the second contract (pursuant to which TRW will sell a
maximum amount of 666,667 shares of Common Stock), 77.56 percent of the
Agency Execution Price times the number of shares to be sold by TRW to
GS&Co.; and
(c) in respect of the third contract (pursuant to which TRW will sell a maximum
amount of 666,666 shares of Common Stock), 74.72 percent of the Agency
Execution Price times the number of shares to be sold by TRW to GS&Co.;
in each case, as payment in full for all such shares to be sold by TRW to GS&Co.
The termination date of each contract is as follows:
(a) the first contract will terminate on February 10, 2003;
(b) the second contract will terminate on August 11, 2003; and
(c) the third contract will terminate on February 10, 2004.
On the third business day following the termination date of each contract,
respectively, TRW will deliver to GS&Co. a number of shares to be determined
based on the following formula:
(i) if the arithmetic mean of the closing prices of the RFMD shares on the
Nasdaq National Market System on each of the five trading days
commencing on and including (u) in the case of the first contract,
February 4, 2003, (v) in the case of the second contract, August 5,
2003 and (w) in the case of the third contract, February 4, 2004, to
and including the respective termination date of each contract (the
"Final Price") is less than 100 percent of the Agency Execution Price
(the "Floor Price"), the maximum number of shares covered by the
applicable contract (with respect to each contract, the "Maximum
Number");
(Page 6 of 8 Pages)
<PAGE> 7
(ii) if the Final Price is less than or equal to (x) in the case of the
first contract, 146.25 percent of the Agency Execution Price, (y) in
the case of the second contract, 159.00 percent of the Agency Execution
Price and (z) in the case of the third contract, 172.75 percent of the
Agency Execution Price (with respect to each contract, the "Cap
Price"), but greater than or equal to the Floor Price, a number of
shares equal to:
Floor Price/Final Price x the Maximum Number;
or
(iii) if the Final Price is greater than the Cap Price, a number of shares
equal to:
Final Price - (Cap Price - Floor Price) x the Maximum Number.
--------------------------------------
Final Price
The Agreements are each subject to adjustment or postponement in the event of
certain market disruption events or other extraordinary events.
To secure its obligations under the Agreements, TRW has pledged to GS&Co.
2,000,000 shares of Common Stock of RFMD. If the precise number of shares sold
by GS&Co. on or before the Last Sale Date is less than 2,000,000 shares in the
aggregate, the number of shares that are the subject of this pledge will be
reduced to equal such number of shares actually sold by GS&Co.
Item 7. Material to be Filed as Exhibits.
- ------ --------------------------------
Item 7 is amended by adding the following exhibits thereto:
Exhibit Number Document
3.12 Letter Agreement dated February 10, 2000, between TRW Inc. and
Goldman, Sachs & Co., regarding the sale of 666,667 shares of
Common Stock of RFMD
3.13 Letter Agreement dated February 10, 2000, between TRW Inc. and
Goldman, Sachs & Co., regarding the sale of 666,667 shares of
Common Stock of RFMD
3.14 Letter Agreement dated February 10, 2000, between TRW Inc. and
Goldman, Sachs & Co., regarding the sale of 666,666 shares of
Common Stock of RFMD
(Page 7 of 8 Pages)
<PAGE> 8
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Dated: February 15, 2000
TRW INC.
By: /s/ Kathleen A. Weigand
---------------------------------
Kathleen A. Weigand
Vice President, Assistant General
Counsel and Assistant Secretary
(Page 8 of 8 Pages)
<PAGE> 9
Exhibit 3.12
Ref:
Date: February 10, 2000
To: TRW Inc. ("Counterparty")
Attention: Ronald P. Vargo, Vice President and Treasurer
Tel: (216) 291-7500
Fax: (216) 291-7831
From: Goldman, Sachs & Co ("GS&Co.")
Tel: (212) 902-1981
Fax: (212) 428-1980
- --------------------------------------------------------------------------------
Dear Sir/Madam:
The purpose of this letter agreement (this "Confirmation") is to confirm the
terms and conditions of the above referenced transaction entered into between
Counterparty and GS&Co. on the Trade Date specified below (the "Transaction").
This Confirmation constitutes a "Confirmation" as referred to in the Master
Agreement specified below.
The definitions and provisions contained in the 1991 ISDA Definitions (as
supplemented by the 1998 Supplement, the "Swap Definitions") and in the 1996
ISDA Equity Derivatives Definitions (the "Equity Definitions", and together with
the Swap Definitions, the "Definitions"), in each case as published by the
International Swaps and Derivatives Association, Inc., are incorporated into
this Confirmation. In the event of any inconsistency between the Swap
Definitions and the Equity Definitions, the Equity Definitions will govern. In
the event of any inconsistency between this Confirmation and the Agreement (as
defined below) or the Definitions, the terms of this Confirmation shall govern.
For purposes of the Equity Definitions, this Transaction will be deemed to be a
Physically-settled Share Option Transaction with an Exercise Date equal to the
Valuation Date. For purposes of Section 4.4 of the Equity Definitions, the
Settlement Date will be treated as if it were a Cash Settlement Payment Date.
References to "Option Entitlement" in Section 9.3(b)(i)(A) of the Equity
Definitions shall be deemed to be references to a "Number of Shares". References
to an "option" in Section 9.7 of the Equity Definitions shall be deemed to be
references to a "forward".
1. (a) If GS&Co. and Counterparty are parties to an executed 1992 ISDA
Master Agreement (Multicurrency-Cross Border) (the "Agreement"), this
Confirmation supplements, forms part of, and is subject to, such
executed Agreement. This Confirmation shall be read and construed as
one with such Agreement and all other outstanding Confirmations between
GS&Co. and Counterparty, so that all such Confirmations and such
Agreement constitute a single agreement between GS&Co. and
Counterparty.
<PAGE> 10
(b) If GS&Co. and Counterparty are not yet parties to a Agreement, this
Confirmation (and each Confirmation in respect of each previous and
subsequent Transaction between us) shall be deemed to supplement, form
a part of, and be subject to (a) a single, standard form Agreement, as
if such an agreement had been executed by and between GS&Co. and
Counterparty without elections, changes or modifications thereto (other
than as made herein), governed by and construed in accordance with the
law of the State of New York, without reference to choice of law
doctrine, and (b) upon due execution by GS&Co. and Counterparty, and
notwithstanding clause (a) above, the Agreement that sets forth the
general terms and conditions applicable to Transactions between GS&Co.
and Counterparty. In addition, if the Agreement has not been executed
by GS&Co. and Counterparty, this Confirmation will itself evidence a
complete and binding agreement between GS&Co. and Counterparty as to
the terms of this Transaction. This Confirmation, all other
Confirmations between GS&Co. and Counterparty, and the applicable
Agreement shall constitute a single agreement between GS&Co. and
Counterparty. All provisions contained or incorporated by reference in
the Agreement between GS&Co. and Counterparty shall govern this
Transaction except as expressly modified below.
2. The terms of the particular Transaction to which this Confirmation
relates are as follows:
GENERAL TERMS:
Trade Date: February 10, 2000
Termination Date: February 10, 2003 (or if not an
Exchange Business Day, the next
succeeding Exchange Business Day).
Seller: Counterparty
Buyer: GS&Co.
Shares: The common stock of RF Micro
Devices, Inc. (Symbol: RFMD)
Issuer: RF Micro Devices, Inc.
Number of Shares: 666,667, subject to adjustment as
provided in "Sale Period" below.
Floor Price: 100.00% of the Agency Execution
Price.
Cap Price: 146.25% of the Agency Execution
Price.
2
<PAGE> 11
Final Price: The arithmetic mean of the Relevant
Prices of the Shares on each
Averaging Date.
Prepayment Amount: 80.48% of the Agency Execution Price
x the Number of Shares.
Agency Execution Price: The average price per share at which
GS&Co. effects sales of Shares as
described under "Sale Period" below.
Prepayment Date: The third Currency Business Day
following the Last Sale Date (as
defined in "Sale Period" below).
Prepayment: On the Prepayment Date, GS&Co. shall
pay Counterparty the Prepayment
Amount in immediately available
funds as payment in full for the
Number of Shares to Be Delivered.
GS&Co. shall have no payment or
delivery obligations pursuant to
this Confirmation other than the
payment of the Prepayment Amount on
the Prepayment Date.
Settlement Currency: USD
Exchange: NASDAQ
Related Exchange: CBOE
SALE PERIOD:
- ------------
Between the Trade Date and the twentieth Exchange Business Day immediately
following the Trade Date (the "Last Sale Date"), GS&Co. will make a good faith
effort to sell the full Number of Shares. Upon the earlier of (i) the sale of
the Number of Shares or (ii) the Last Sale Date, GS&Co. shall provide written
notice to Counterparty of the Agency Execution Price resulting therefrom and the
Prepayment Amount. GS&Co.'s calculations of the Agency Execution Price and the
Prepayment Amount shall be conclusive absent manifest error. If GS&Co. does not
sell the full Number of Shares by the close of the Exchange on the Last Sale
Date, GS&Co. shall promptly give notice to Counterparty that the Number of
Shares shall be reduced to such number as GS&Co. has sold pursuant to this
paragraph.
VALUATION:
- ----------
Valuation Time: At the close of trading in respect
of regular trading hours on the
Exchange, without regard to extended
trading hours on the Exchange, if
any.
Valuation Date: The Termination Date
3
<PAGE> 12
Averaging Dates: Each of the five Exchange Business
Days commencing on, and including,
February 4, 2003 to and including
the Valuation Date.
Averaging Date Market
Disruption: Modified Postponement
SETTLEMENT TERMS: Settlement of this Transaction shall
----------------- be Physical Settlement.
Physical Settlement: On the Settlement Date, Counterparty
will deliver to GS&Co. the Number of
Shares to be Delivered.
Number of Shares
to be Delivered: A number of Shares determined by the
Calculation Agent on the Valuation
Date based on the following formula:
a) if the Final Price is less
than the Floor Price, a
number of Shares equal to:
Number of Shares
b) if the Final Price is less
than or equal to the Cap
Price but greater than or
equal to the Floor Price, a
number of Shares equal to:
Floor Price x Number of
----------- Shares
Final Price
and
c) if the Final Price is
greater than the Cap Price,
a number of Shares equal
to:
<TABLE>
<S> <C>
Final Price - (Cap Price-Floor Price)
------------------------------------ x Number of Shares
Final Price
</TABLE>
Settlement Date: Three (3) Exchange Business Days
after the Valuation Date.
Failure to Deliver: Inapplicable
Delivery of Number
of Shares to be Delivered: On the Settlement Date, Counterparty
shall satisfy its delivery obligation
by delivering to GS&Co. the number of
Pledged Shares (or other Shares
acceptable to GS&Co.) equal to the
Number of the Shares to be Delivered.
4
<PAGE> 13
ADJUSTMENTS:
- ------------
Method of Adjustment: In the event of the occurrence of a
Potential Adjustment Event, the
Calculation Agent will determine
whether such Potential Adjustment
Event has a diluting or concentrative
effect on the theoretical value of
the Shares and, if so, will (i) make
the corresponding adjustment(s), if
any, to the Number of Shares, the
Floor Price and the Cap Price and, in
any case, any other variable relevant
to the settlement or payment terms of
this Transaction as the Calculation
Agent determines appropriate to
account for that diluting or
concentrative effect and (ii)
determine the effective date(s) of
the adjustment(s). For the avoidance
of doubt, in connection with the
adjustments made pursuant to the
preceding sentence, if as a result of
a Potential Adjustment Event existing
holders of Shares receive a
distribution or dividend of
securities (other than Shares) that
are Marketable Securities (the
"Additional Shares"), then the term
"Shares" will mean a basket of Shares
composed of the original Shares and
the Additional Shares and this
Transaction will become a Share
Basket Transaction.
"Marketable Securities" means equity
securities that are publicly traded
on a United States national
securities exchange or quoted on the
Nasdaq National Market.
Dividend Adjustment: If the Shares are subject to a cash
dividend in excess of the Regular
Dividend, then on the ex-dividend
date for the payment of each such
dividend the Calculation Agent will
reduce the Floor Price and the Cap
Price by the amount per Share of each
such dividend in excess of the
Regular Dividend. For the avoidance
of doubt, if as a result of any
Merger Event or Potential Adjustment
Event (or any combination thereof)
the Shares are adjusted to include
the Shares of an issuer other than
the initial Issuer or of more than
one issuer (whether or not including
the initial Issuer), then such
adjustment shall apply with respect
to any cash dividends to which the
successor or additional Shares of the
applicable issuer(s) are subject.
"Regular Dividend" means $0.00 per
share per quarter.
EXTRAORDINARY EVENTS:
- ---------------------
Consequences of Merger Event:
5
<PAGE> 14
(a) Share-for-Share: Cancellation and Payment: provided,
however, if the New Shares are
Marketable Securities, Alternative
Obligation shall apply.
(b) Share-for-Other: Cancellation and Payment.
(c) Share-for-Combined: Cancellation and Payment; provided,
however, if any portion of the
consideration for the relevant
shares consists of Marketable
Securities (the "Marketable
Securities Consideration"),
Alternative Obligation shall apply
to that portion of the Transaction
corresponding to the Marketable
Securities Consideration.
Notwithstanding anything to the
contrary in the Equity Definitions,
the amount payable under this
Transaction upon the occurrence of a
Merger Event, Nationalization or
Insolvency shall be calculated by
the Calculation Agent in good faith
in accordance with Section 9.7 of
the Equity Definitions using, among
other things, the factors identified
in subparagraphs (i), (ii) and (iii)
therein, but without the requirement
of soliciting dealer quotations
therefor.
Notwithstanding Section 9.2(b) of
the Equity Definitions, "Merger
Date" means the date of closing of
the Merger Event.
In connection with a Share-for-Share or Share-for-Combined Merger Event in (a)
or (c) above, then to the extent the consequence of any Merger Event is
Alternative Obligation, in addition to any other adjustments in respect of the
Merger Event, the Calculation Agent will adjust the Floor Price and the Cap
Price as follows (which adjustments, together with the other adjustments in
respect of the Merger Event are intended to preserve the economic equivalent
value of this Transaction to the parties):
(i) as of the Exchange Business Day immediately prior to the Announcement Date,
the Calculation Agent will determine an amount (in USD) equal to the change in
market value in this Transaction resulting from the substitution of Marketable
Securities for the Shares; and
(ii) on the Merger Date, the Calculation Agent will adjust the Floor Price and
the Cap Price by the amounts necessary, given the then remaining life of this
Transaction, to achieve the change in market value determined under clause (i).
The Calculation Agent will make its determination under clause (i) using a
Transaction maturity from the Exchange Business Day immediately prior to the
Announcement Date to the Termination Date and will base its determination on the
difference (positive or negative) between
6
<PAGE> 15
the Shares and the Marketable Securities with respect to Volatility, Dividend
Paid and Stock Loan Rate. For this purpose,"Volatility" and "Stock Loan Rate"
mean, respectively, the volatility and stock loan rebate rate agreed to by
Counterparty and the Calculation Agent, and "Dividend Paid" means the amount
determined by the Calculation Agent to have been the ordinary cash dividend
amount paid per the relevant share in the calendar year ending on the
Announcement Date (and, in the case of Marketable Securities, shall be zero if
the Marketable Securities did not exist prior to the Merger Event). If the
parties cannot agree on a Volatility or Stock Loan Rate for the Shares or
Marketable Securities prior to the Merger Date, the Calculation Agent will
determine the relevant amount by obtaining from each of three leading,
independent broker-dealers who actively make markets in transactions similar to
this Transaction a quotation for such amount and taking the arithmetic average
of the three quotations. In obtaining volatility quotations, the Calculation
Agent will ask the quoting dealer to provide the mid-market volatility that the
dealer would have provided for this Transaction if the dealer had been asked to
enter into the then remainder of this Transaction (in the case of a volatility
quotation for Marketable Securities, on Marketable Securities and as otherwise
adjusted for the Merger Event) on the Exchange Business Day immediately prior to
the Announcement Date.
NATIONALIZATION OR
INSOLVENCY: Cancellation & Payment
- -----------
3. CALCULATION AGENT: GS&Co.
4. NON-RELIANCE: Each party represents to the other party
that it is not relying on any
communication (written or oral) of the
other party as investment advice or as a
recommendation to enter into this
Transaction, it being understood that
information and explanations related to
the terms and conditions of this
Transaction shall not be considered
investment advice or a recommendation to
enter into this Transaction. No
communication (written or oral) received
from the other party shall be deemed to
be an assurance or guarantee as to the
expected results of this Transaction.
5. GOVERNING LAW: The laws of the State of New York
(without reference to choice of law
doctrine)
6. COLLATERAL: On or prior to Trade Date, Counterparty
will deposit and thereafter maintain with
GS&Co. a number of Shares equal to the
Number of Shares (such Shares or other
collateral, any distributions thereon or
proceeds thereof and any substitutions
therefor, the "Pledged Shares" or the
"Collateral").
Counterparty represents that (i) it is
the legal, record and beneficial owner of
all Collateral free of all liens, claims,
7
<PAGE> 16
equities and encumbrances and (ii) it has
the power and has obtained all of the
necessary consents and approvals to grant
a first priority security interest to
GS&Co. in the Collateral.
The Counterparty hereby grants GS&Co. a
first priority security interest in, and
a first priority lien on, the Collateral
as collateral for its obligations under
this Transaction and the Agreement.
Upon any default by Counterparty
(including the occurrence of an Event of
Default or Termination Event under the
Agreement), GS&Co. shall have all of the
rights with respect to the Collateral of
a secured party under the New York
Uniform Commercial Code. GS&Co. shall not
be liable for any loss or damages
occasioned by any sale or disposal of the
Collateral unless such liability results
primarily from the negligence (as
determined by a final and nonappealable
judgment of a court of competent
jurisdiction) or bad faith of GS&Co.
In the absence of an Event of Default or
a Termination Event or the occurrence of
an event which with the passage of time
could result in an Event of Default or a
Termination Event, GS&Co. shall pay over,
or cause to be paid over, to the
Counterparty any cash dividends actually
received by GS&Co. on the Shares (other
than any such dividend which GS&Co.
determines in its good faith discretion
was not paid by the Issuer in the
ordinary course of its business or
otherwise constitutes an "extraordinary"
dividend).
Except in the case where the Collateral
has been rehypothecated by GS&Co., the
Counterparty shall be entitled to
exercise any and all voting and other
consensual rights pertaining to the
Collateral or any part thereof for any
purpose not inconsistent with the terms
of this Transaction.
Counterparty will faithfully preserve and
protect GS&Co.'s security interest in the
Collateral, will defend GS&Co.'s right,
title, lien and security interest in and
to the Collateral against the claims and
demands of all persons whomsoever, and
will do all such acts and things and
deliver all such documents and
instruments, including without limitation
further pledges, assignments, financing
statements and continuation statements,
as GS&Co. in its sole discretion
8
<PAGE> 17
may reasonably deem necessary or
advisable from time to time in order to
preserve, protect and perfect such
security interest or to enable GS&Co. to
exercise or enforce its rights with
respect to any Collateral. Counterparty
hereby irrevocably appoints GS&Co. as
Counterparty's attorney-in-fact for the
purpose of taking any action and
executing any instrument which GS&Co. may
deem necessary or advisable to preserve,
protect and perfect such security
interest or to enable GS&Co. to exercise
or enforce its rights with respect to any
Collateral.
Counterparty will not permit any lien,
security interest, adverse claim,
restrictions on transfer or other
encumbrance, other than the lien and
security interest Counterparty created
hereby in favor of GS&Co., to exist upon
any of the Collateral.
Counterparty will not take any action
that could in any way limit or adversely
affect the ability of GS&Co. to realize
upon its rights in the Collateral.
Notwithstanding any limitation otherwise
imposed by Section 9-207(2)(e) of the New
York Uniform Commercial Code, GS&Co.
shall be entitled to pledge, repledge,
hypothecate, rehypothecate or further
assign (collectively, "rehypothecate")
any Collateral delivered to GS&Co. by
Counterparty pursuant to this Agreement,
subject to the obligation to return such
Collateral or equivalent Collateral to
Counterparty' PROVIDED, HOWEVER, that no
such rehypothecation may occur within 14
calendar days of the Last Sale Date;
GS&Co. must use standard market
documentation for the type of
hypothecation involved; such
documentation must provide that GS&Co.
can reacquire the Collateral upon not
less than three business days' notice;
and GS&Co. will exercise that right upon
written notice from the Counterparty.
7. REPRESENTATIONS AND Counterparty represents and warrants to,
AGREEMENTS OF and agrees with, GS&Co. as follows:
COUNTERPARTY:
Counterparty (a) has such knowledge and
experience in financial and business
affairs as to be capable of evaluating
the merits and risks of entering into the
Transaction; (b) is an "eligible swap
participant" as defined in the Part 35
Regulations of the U.S. Commodity Futures
Trading
9
<PAGE> 18
Commission; (c) has consulted with its
own legal, financial, accounting and tax
advisors in connection with the
Transaction; (d) is entering into the
Transaction as principal (and not as
agent or in any other capacity, fiduciary
or otherwise) for a bona fide business
purpose in conjunction with its line of
business to hedge an existing position
and not for purposes of speculation; and
(e) has determined that this Transaction
is prudent and appropriate in light of
its organizational documentation,
financial situation and investment
objectives and guidelines and policies.
As of the date of Counterparty's most
recent Schedule 13D filing with the
Securities and Exchange Commission,
Counterparty was the beneficial owner (as
defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as
amended (the "Exchange Act")) of 15.7% of
the outstanding shares of the Issuer.
Counterparty is currently, and in the
past has been, in compliance with its
reporting obligations under Section 13(d)
of the Exchange Act. A list of all such
Schedule 13D filings is attached as Annex
A and copies of all such filings have
been provided to GS&Co. Counterparty will
provide GS&Co. a draft of the amendment
to its Schedule 13D which describes the
Transaction and will give GS&Co. a
reasonable opportunity to comment on the
draft. An amendment to the Schedule 13D
will be promptly filed by the
Counterparty with the Securities and
Exchange Commission. Counterparty will
comply with its obligations in Section
14(i) of the Confirmation in connection
with future filings under Section 13(d)
of the Exchange Act made on or after the
date of this Confirmation.
Neither Counterparty nor any of its
Affiliates is in possession of any
non-public material information regarding
the Issuer; and, during the period that
GS&Co. effects sales of Shares pursuant
to Section 2 hereof, Counterparty will
notify by telephone Alexandra Antoniadis
(Telephone: (212) 902-9509) promptly upon
coming into possession of any such
material non-public information (such
telephonic notice to be promptly
confirmed in writing). In the event that
Counterparty so notifies such personnel
of GS&Co. during the Sale Period, GS&Co.
will as promptly as practicable
discontinue the sale of the Shares, and
the Number of Shares will be
10
<PAGE> 19
reduced to such number as GS&Co. has sold
prior to its discontinuing such sales and
the date such sales are discontinued will
be the Last Sale Date.
Counterparty and its affiliates have not
sold, or contracted to sell, any Shares
(or any other security or instrument that
will be subject to aggregation under Rule
144(e)) or any beneficial interest
therein during the three-month period and
have not sold or purchased, or contracted
to sell or purchase, any Shares (or any
other security or derivative security
that would be subject to reporting under
Section 16 of the Exchange Act) or any
beneficial interest therein during the
six-month period ending on the date of
this Confirmation, except as reported on
Counterparty's Form 144 and Form 4 and
Form 5 filings with the SEC or as
otherwise listed on Annex A. Counterparty
shall comply with the reporting and other
requirements of Section 16 of the
Exchange Act and the rules and
regulations promulgated thereunder.
The Pledged Shares are not subject to any
restrictions on transfer other than those
arising under federal or state securities
laws. No Pledged Shares are entitled to
the benefits of any registration rights
agreement or similar agreement except
pursuant to the agreement identified in
Annex B hereto (the "Registration Rights
Agreement"). Within the last month,
Counterparty has not offered any Shares
through any prospectus or other offering
document. During the Sale Period,
Counterparty will not exercise any of its
rights under the Registration Rights
Agreement in respect of any Shares or
permit any Shares to be included in a
registered offering without GS&Co.'s
prior written consent. Assuming that the
terms of the Transaction are consistent
with the terms of a "Contract" as
described in Section I.A. of the Goldman,
Sachs & Co. (December 20, 1999)
interpretive letter (the "Interpretive
Letter"), and based on the representation
of GS&Co. below, the Shares to be
delivered on Physical Settlement shall be
freely transferable to the public without
any restrictions whatsoever. Counterparty
will not take any action so as to cause
the terms of the Transaction not to
comply with Section I.A. of the
Interpretive Letter. Counterparty has
furnished GS&Co. with copies of all
agreements, contracts or instruments that
relate to the Pledged Shares.
11
<PAGE> 20
The Pledged Shares are transferable by
the Counterparty to the public pursuant
to Rule 144 under the Securities Act.
Counterparty acknowledges and agrees that
(i) assuming that the terms of the
Transaction are consistent with the terms
of a "Contract" as described in Section
I.A. of the Interpretive Letter, and
based on the representation of GS&Co.
below, the entering into of this
Confirmation will constitute a "sale" of
the Pledged Shares for purposes of Rule
144, (ii) Counterparty has not taken and
will not take any action that would cause
such sale to exceed the volume limitation
of Rule 144(e), (iii) Counterparty has
not taken and will not take any action
that could cause the sale pursuant to
this Confirmation not to comply with Rule
144, (iv) Counterparty will transmit a
Form 144 for filing with the Securities
and Exchange Commission simultaneously
with the execution of this Confirmation
and such Form 144 shall be in a form
reasonably acceptable to GS&Co., (v)
Counterparty will deliver a
representation letter to GS&Co. in a form
customarily used by GS&Co. simultaneous
with the execution of this Confirmation
and each representation, warranty and
agreement in such representation letter
shall be deemed to be incorporated into
this Confirmation and (vi) upon the Last
Sale Date, Counterparty agrees to
transmit for filing with the Securities
and Exchange Commission an amendment to
the previously filed Form 144 in a form
reasonably acceptable to GS&Co.
Counterparty is not and has not been the
subject of any civil proceeding of a
judicial or administrative body of
competent jurisdiction that could
reasonably be expected to impair
Counterparty's ability to perform its
obligations hereunder.
Within three Business Days after any
financial officer of Counterparty obtains
knowledge of an Event of Default or the
occurrence of any event that with the
giving of notice, the lapse of time or
both would be such an Event of Default,
Counterparty will immediately notify
GS&Co. of the occurrence of such Event of
Default.
Counterparty has filed or caused to be
filed all material tax returns that are
required to be filed by Counterparty and
has paid all material taxes shown to be
due and payable on said returns or on any
assessment made against Counterparty or
any of Counterparty's property and all
other material taxes,
12
<PAGE> 21
assessments, fees, liabilities or other
charges imposed on Counterparty or any of
Counterparty's property by any
governmental authority.
Counterparty was not or will not be
insolvent at the time this Transaction is
consummated, and was not or will not be
rendered insolvent or will not be
insolvent as a result thereof.
Counterparty has not engaged and will not
engage in any business or transaction
with GS&Co. after which the property
remaining with Counterparty was or will
be unreasonably small in relation to its
business. At the time of any transfer to
or for the benefit of GS&Co.,
Counterparty did not intend or will not
intend to incur, and did not incur or
will not incur, debts that were beyond
the ability of Counterparty to pay as
they mature.
GS&Co. hereby represents and warrants to,
and agrees with, Counterparty that the
sale of Shares by GS&Co. during the Sale
Period will comply with the manner of
sale requirements of Rule 144(f) and (g).
8. ACKNOWLEDGMENTS: The parties hereto intend for:
(i) This Transaction to be a "securities
contract" as defined in Section 741(7) of
the Bankruptcy Code (Title 11 of the
United States Code) (the "Bankruptcy
Code"), qualifying for protection under
Section 555 of the Bankruptcy Code;
(ii) A party's right to liquidate this
Transaction and to exercise any other
remedies upon the occurrence of any Event
of Default under the Agreement with
respect to the other party to constitute
a "contractual right" as defined in the
Bankruptcy Code.
(iii) Any cash, securities or other
property provided as performance
assurance, credit support or collateral
with respect to this Transaction to
constitute "margin payments" as defined
in the Bankruptcy Code.
(iv) All payments for, under or in
connection with this Transaction, all
payments for the Shares and the transfer
of such Shares to constitute "settlement
payments" as defined in the Bankruptcy
Code.
9. INDEMNIFICATION: Counterparty agrees to indemnify and hold
harmless
13
<PAGE> 22
GS&Co., its Affiliates and its assignees
and their respective directors, officers,
employees, agents and controlling persons
(GS&Co. and each such person being an
"Indemnified Party") from and against any
and all losses, claims, damages and
liabilities, joint or several, to which
such Indemnified Party may become
subject, and relating to or arising out
of any of the transactions contemplated
by this Confirmation, and will reimburse
any Indemnified Party for all expenses
(including reasonable counsel fees and
expenses) as they are incurred in
connection with the investigation of,
preparation for or defense or settlement
of any pending or threatened claim or any
action, suit or proceeding arising
therefrom, whether or not such
Indemnified Party is a party and whether
or not such claim, action, suit or
proceeding is initiated or brought by or
on behalf of Counterparty. Counterparty
will not be liable under the foregoing
indemnification provision to the extent
that any loss, claim, damage, liability
or expense results primarily from the
negligence (as determined by a final and
nonappealable judgment of a court of
competent jurisdiction) or bad faith of
GS&Co. If for any reason the foregoing
indemnification is unavailable to any
Indemnified Party or insufficient to hold
harmless any Indemnified Party, then
Counterparty shall contribute, to the
maximum extent permitted by law, to the
amount paid or payable by the Indemnified
Party as a result of such loss, claim,
damage or liability. Counterparty also
agrees that no Indemnified Party shall
have any liability to Counterparty or any
person asserting claims on behalf of or
in right of Counterparty in connection
with or as a result of any matter
referred to in this Confirmation or the
Agreement except to the extent that any
losses, claims, damages, liabilities or
expenses incurred by Counterparty result
primarily from the negligence (as
determined by a final and nonappealable
judgment of a court of competent
jurisdiction) or bad faith of the
Indemnified Party. The provisions of this
Section 9 shall survive completion of the
Transaction contemplated by this
Confirmation and any assignment and
delegation pursuant to Section 14(a) of
this Confirmation.
10. TERMINATION PROVISIONS:
(a) Sections 5(a)(v), 5(a)(vi),
5(a)(vii), 5(a)(viii), and 5(b)(iv) shall
not apply to GS&Co.
14
<PAGE> 23
(b) "SPECIFIED TRANSACTION" will have the
meaning specified in Section 14 of the
Agreement, except that it will also
include any forward transactions in
securities and any margin loan or
extension of credit by GS&Co. to
Counterparty.
(c) (i) The "CROSS DEFAULT" provisions of
Section 5(a)(vi) of the Agreement as
amended will apply to Counterparty; and
Section 5(a)(vi) of the Agreement is
hereby amended by deleting in the seventh
line thereof the words ", or becoming
capable at such time of being declared,".
(ii) "SPECIFIED INDEBTEDNESS" will
have the meaning specified in Section 14
of the Agreement, except as excluded in
the proviso to this definition, and shall
include for the avoidance of doubt, all
reimbursement obligations in respect of
letters of credit or financial guaranty
insurance or surety bonds issued for the
account of that person; provided however,
that obligations in respect of interbank
deposits received by GS&Co. shall not
constitute Specified Indebtedness for the
purposes of clause (2) of Section
5(a)(vi) of the Agreement to the extent
they are not paid when due only as the
result of inadvertence or administrative
error.
(iii) "THRESHOLD AMOUNT" means U.S.
$100,000,000 or its equivalent in another
currency.
(d) Each of Section 5(a)(vii)(4)(B) and
Section 5(a)(vii)(7) of the Agreement is
hereby amended by deleting the number
"30" and replacing it with the number
"90".
(e) Section 5(a)(viii) of the Agreement
is hereby amended by deleting the
introductory paragraph in its entirety
and replacing it with the following:
"The party consolidates or amalgamates
with, or merges with or into, or
transfers all or substantially all its
assets to, or reorganizes, incorporates,
reincorporates, or reconstitutes into or
as, another entity and, at the time of
such consolidation, amalgamation, merger,
transfer, reorganization, incorporation,
reincorporation or reconstitution."
15
<PAGE> 24
(f) Section 5(b)(iv) of the Agreement is
hereby amended by: (i) deleting in the
fourth line thereof the words "another
entity" and replacing them with the words
"or reorganizes, incorporates,
reincorporates, reconstitutes, or reforms
into or as, or receives all or
substantially all of the assets and/or
liabilities or obligations of, another
entity or X, such Specified Entity
effects a recapitalization, liquidating
dividend, leveraged buy-out, other
similar highly-leveraged transaction,
redemption of indebtedness, or stock
buy-back or similar call on equity"; (ii)
deleting in the fifth line thereof the
words "the resulting, surviving or
transferee" and replacing them with the
words "X, such Specified Entity or any
resulting, surviving, transferee,
reorganized, reconstituted, reformed, or
recapitalized"; and (iii) deleting in the
seventh line thereof the words "its
successor or transferee" and replacing
them with the words "any resulting,
surviving, transferee, reorganized,
reconstituted, reformed or recapitalized
entity".
(g) The "CREDIT EVENT UPON MERGER"
provisions of Section 5(b)(iv) as amended
above will apply to Counterparty.
Notwithstanding Section 5(b)(iv) of the
Agreement, "Credit Event Upon Merger"
means that a Designated Event (as defined
below) occurs with respect to a party and
such action does not constitute an event
described in Section 5(a)(viii) of the
Agreement but, after the occurrence of
the Designated Event, the successor,
surviving or transferee entity (which
will be the Affected Party) has a credit
rating of BB+ from Standard & Poor's
Ratings Group or Ba1 from Moody's
Investors Service Corporation or a lower
rating from either such rating agency.
For the purposes hereof, a "Designated
Event" means, with respect to a party,
that after the Trade Date of a
Transaction:
(i) the party consolidates or amalgamates
with, or merges with or into, or
transfers all or substantially all its
assets (or any substantial part of the
assets comprising the business conducted
by that party as of the Trade Date of
that Transaction) to, or receives all or
substantially all the assets and
obligations of, another entity;
(ii) any person as defined for purposes
of Section 13(d) under the Securities
Exchange Act of 1934, as amended as of
the Trade Date (the "Exchange Act"), or
entity or group (as defined for purposes
of Section 13(d) under the Exchange
16
<PAGE> 25
Act) acquires directly or indirectly the
beneficial ownership (as defined for
purposes of Section 13(d) under the
Exchange Act) of equity securities having
the power to elect a majority of the
board of directors of the party; or
(iii) the party enters into any agreement
providing for any of the foregoing.
(h) The "AUTOMATIC EARLY TERMINATION"
provision of Section 6(a) will not apply
to GS&Co. and will apply to Counterparty.
(i) PAYMENTS ON EARLY TERMINATION. For
the purpose of Section 6(e):
(i) Loss will apply.
(ii) The Second Method will apply.
(j) "TERMINATION CURRENCY" means United
States Dollars.
11. TAX REPRESENTATIONS.
(a) PAYER REPRESENTATIONS. For purposes
of Section 3(e) of the Agreement, GS&Co.
and Counterparty each make the following
representation:
It is not required by any applicable law,
as modified by the practice of any
relevant governmental revenue authority,
of any Relevant Jurisdiction to make any
deduction or withholding for or on
account of any Tax from any payment
(other than interest under Section 2(e),
6(d)(ii) or 6(e) of the Agreement) to be
made by it to the other party under the
Agreement. In making this representation,
it may rely on (i) the accuracy of any
representations made by the other party
pursuant to Section 3(f) of the
Agreement, (ii) the satisfaction of the
agreement contained in Section 4(a)(i) or
4(a)(iii) of the Agreement and the
accuracy and effectiveness of any
document provided by the other party
pursuant to Section 4(a)(i) or 4(a)(iii)
of the Agreement, and (iii) the
satisfaction of the agreement of the
other party contained in Section 4(d) of
the Agreement, provided that it shall not
be a breach of this representation where
reliance is placed on Clause (ii) and the
17
<PAGE> 26
other party does not deliver a form or
document under Section 4(a)(iii) by
reason of material prejudice to its legal
or commercial position.
(b) PAYEE REPRESENTATIONS. For the
purpose of Section 3(f) of the Agreement;
Counterparty represents that is a
corporation organized under the laws of
the State of Ohio and it is not a foreign
person for United States federal income
tax purposes.
GS&Co. represents that it is a limited
partnership organized under the laws of
the State of New York and it is not a
foreign person for United States federal
income tax purposes.
12. AGREEMENT TO DELIVER DOCUMENTS.
For the purpose of Section 4(a), each party agrees to deliver the following
documents, as applicable:
(a) Tax forms, documents, or certificates to be delivered are:
None
(b) Other documents to be delivered are:
<TABLE>
<CAPTION>
COVERED BY
PARTY REQUIRED TO DATE BY WHICH SECTION 3(D)
DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE TO BE DELIVERED REPRESENTATION
---------------- ------------------------- --------------- --------------
<S> <C> <C> <C>
Counterparty Certified incumbency certificate or At execution of this Yes
other evidence of authority and Agreement
specimen signatures with respect to
Counterparty and its signatories
Counterparty Annual Financial Statement of Within 90 days of the Yes
Counterparty last day of each
calendar
year, with
respect to
financial
statements
relating to
such
calendar
year.
Counterparty Interim Financial Statement of Promptly following
Counterparty demand by Party A
</TABLE>
18
<PAGE> 27
<TABLE>
<CAPTION>
COVERED BY
PARTY REQUIRED TO DATE BY WHICH SECTION 3(D)
DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE TO BE DELIVERED REPRESENTATION
---------------- ------------------------- --------------- --------------
<S> <C> <C> <C>
Counterparty Evidence reasonably satisfactory to At execution of this Yes
and GS&Co. the other party of the signing Agreement and
authority and specimen signature of thereafter on request
any individual executing this
Agreement, any Credit Support
Document and any Confirmation on
its behalf
</TABLE>
13. MISCELLANEOUS.
(a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a):
Address for notices or communications to GS&Co.:
Address: 85 Broad Street
New York, New York 10004, U.S.A.
Attention: Alexandra Antoniadis
Telex No.: 12-5654
Answerback: GOLSAX
Facsimile No.: 212-902-2065
Telephone No.: 212-902-9509
Electronic Messaging
System Details: None.
With a copy to:
Address: 85 Broad Street
New York, New York 10004, U.S.A.
Attention: Treasury Administration
Telex No.: 421344
Answerback: GOLSAX
Facsimile No.: 212-902-3325
Telephone No.: 212-902-1000
Electronic Message
System Details: None.
19
<PAGE> 28
Address for notices or communications to Counterparty:
Address: 1900 Richmond Road
Lyndhurst, Ohio 44124, U.S.A.
Attention: Ronald P. Vargo
Cc: Secretary
Telex No.: None
Answerback: None
Facsimile No.: (216) 291-7831
Telephone No.: (216) 291-7500
Electronic Message
System Details: None.
(b) OFFICES; MULTIBRANCH PARTIES.
(i) The provisions of Section 10(a) will be applicable.
(ii) For the purpose of Section 10(c):
GS&Co. is not a Multibranch Party.
Counterparty is not a Multibranch Party.
(c) JURISDICTION. Section 13(b) of the Agreement is hereby amended by:
(i) deleting in the second line of Subparagraph (i) thereof the word "non"; and
(ii) deleting the final paragraph thereof.
(d) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) of the
Agreement will not apply to Transactions.
(e) "WAIVER OF JURY TRIAL". To the extent permitted by applicable law,
each party irrevocably waives any and all right to trial by jury in any legal
proceeding in connection with the Agreement or any Transaction.
(f) PROCESS AGENT. For the purpose of Section 13(c):
GS&Co. appoints as its Process Agent: None
Counterparty appoints as its Process Agent in the Borough of Manhattan in New
York City:
Name: CT Corporation System
20
<PAGE> 29
Address: 111 Eighth Avenue
Telex No.: None Answerback: None
Facsimile No.: None
Telephone No.: (212) 894-8440
(g) "Annual Financial Statements" means a certified balance sheet and
income statement of such party's assets, liabilities and results of operations,
certified by a public accountant of national recognition and reputation and
prepared in accordance with accounting principles that are generally accepted in
the United States of America, as of the end of the most recent fiscal year.
(h) "Interim Financial Statements" means a balance sheet and income
statement setting forth such party's assets, liabilities and results of
operations in accordance with Regulation S-X.
21
<PAGE> 30
14. OTHER PROVISIONS.
(a) TRANSFER. Section 7 of the Agreement is replaced in its entirety by
the following:
GS&Co. may assign its rights and delegate its obligations under any Transaction,
in whole or in part, to any affiliate (an "Assignee") of GS&Co. effective (the
"Affiliate Effective Date") upon delivery to Counterparty of an executed
acceptance and assumption by the Assignee (an "Assumption") of the transferred
obligations of GS&Co. under the Transaction (the "Transferred GS&Co.
Obligations") and GS&Co. may assign its rights and delegate its obligations
under any Transaction, in whole or in part, to a third party that has a long-
term, unsubordinated debt rating of A- as rated by Standard & Poor's Ratings
Group and A3 as rated by Moody's Investor Services Corporation effective (the
"Third Party Effective Date") upon delivery to Counterparty of an executed
Assumption by the third party of the Transferred GS&Co. Obligations under the
Transaction. On the Affiliate Party Effective Date or the Third Party Effective
Date, GS&Co. shall be released from all obligations and liabilities arising
under or with respect to the Transferred GS&Co. Obligations, except GS&Co. will
retain its rights under Section 9 of this Confirmation.
With the prior written consent of GS&Co., which shall not be unreasonably
withheld, Counterparty may assign its rights and delegate its obligations under
any Transaction, in whole or in multiples of not less than 100,000 Shares, to a
third party effective upon delivery to GS&Co. of an Assumption of the
transferred obligations of Counterparty under the Transaction ("the Transferred
Counterparty Obligations"), provided that such third party (i) is not an
"affiliate" (as used for purposes of Section 2(a)(11) of the Securities Act) of
the Issuer and delivers to GS&Co. evidence reasonably satisfactory to it to
evidence this fact, (ii) delivers to GS&Co. a number of Shares equal to the
product of (a) a fraction, the numerator of which is the maximum number of
Shares subject to the Transferred Counterparty Obligations and the denominator
is the Number of Shares and (b) the Number of Shares, as Collateral for its
obligations, which Shares shall be freely transferable to the public without any
restrictions on transfer whatsoever, and grants to GS&Co. a first priority
security interest in, and a first priority lien on, the Collateral and (iii)
makes the same representations, warranties, covenants and agreements as
Counterparty in this Confirmation, except those that relate to Rule 144 of the
Securities Act, and those that relate to Sections 13 and 16 of the Exchange Act
to the extent that such third party is (and remains) not subject to the
reporting obligations under those Sections. Upon delivery to GS&Co. of an
executed Assumption by the third party of the Transferred Counterparty
Obligations under the Transaction, Counterparty shall be released from all
obligations and liabilities arising under or with respect to the Transferred
Counterparty Obligations, except Section 9 shall continue to apply as between
Counterparty and GS&Co.
(b) SEVERABILITY. If any term, provision, covenant, or condition of
this Confirmation, or the application thereof to any party or circumstance,
shall be held to be invalid or unenforceable (in whole or in part) for any
reason, the remaining terms, provisions, covenants, and conditions hereof shall
continue in full force and effect as if this Confirmation had been executed with
the invalid or unenforceable portion eliminated, so long as this Confirmation as
so modified continues to express, without material change, the original
intentions of the parties as to the subject matter of this Confirmation and the
deletion of such portion of this Confirmation will
22
<PAGE> 31
not substantially impair the respective benefits or expectations of the parties
to this Confirmation; provided, however, that this severability provision shall
not be applicable if any provision of Section 2, 5, 6, or 13 of the Agreement
(or any definition or provision in Section 14 to the extent it relates to, or is
used in or in connection with any such Section) shall be so held to be invalid
or unenforceable.
(c) BINDING EFFECT. This Confirmation shall bind and inure to the
benefit of GS&Co. and Counterparty and their respective heirs, distributees,
executors, personal representatives and administrators and permitted successors
and assigns."
(d) DEFINITIONS. The definition of "law" in Section 14 of this
Agreement is hereby amended by the insertion of the words "either generally or
with respect to a party to this agreement" after the phrase "any relevant
governmental revenue authority" and the addition of the words "Change in Tax
Law," before the word "lawful" in the second line. For the purposes of this
Agreement, "Contractual Currency" means United States Dollars.
(e) DEALINGS IN THE SHARES. Counterparty hereby acknowledges and agrees
that GS&Co. and its Affiliates may engage in proprietary trading for their
accounts in the Shares (and related securities) and that such trading may affect
the value of the Shares and the amounts payable hereunder.
(f) DEFAULT UNDER SPECIFIED TRANSACTIONS. Section 5(a)(v)(2) of the
Agreement is hereby amended by replacing the words "the last" with the word
"any".
(g) CONDITIONS PRECEDENT. The condition precedent set forth in clause
(1) of Section 2(a)(iii) of the Agreement shall not apply to payments scheduled
to be made by Counterparty to GS&Co. under this Confirmation.
(h) CONFIDENTIALITY. Each party considers its participation in each and
any Transaction and the details thereof (collectively, the "Information") to
constitute confidential and valuable business information. Accordingly, each
party agrees to keep the Information strictly confidential and not to disclose
it (or any portion thereof) to any third party except (i) with the prior written
consent of the other party or (ii) pursuant to the demand, request or
requirement of any law, court, regulatory or self-regulatory agency having
jurisdiction over a party or pursuant to Rule 144 under the Securities Act or
Section 13(d) of the Exchange Act. In such a case, Counterparty will notify
GS&Co. reasonably in advance of any requirement or pending request for the
disclosure of any Information and prior to the disclosure shall take all such
actions reasonably requested by GS&Co. to preserve the confidentiality of such
Information.
(i) GROSS UP. The third line of Section 2(d)(i) of the Agreement is
hereby amended by the insertion before the phrase "of any relevant governmental
revenue authority" of the words ", application or official interpretation" and
the insertion of the words "(either generally or with respect to a party to this
Agreement)" after such phrase.
(j) MAINTAIN AUTHORIZATIONS. Section 4(b) of the Agreement is hereby
amended by deleting the words "use all reasonable efforts to" from the first and
third lines thereof.
23
<PAGE> 32
(k) REPRESENTATIONS.
(i) Section 3(a)(iii) of the Agreement is hereby amended by
inserting the word "material" between the words "any" and "contractual" in the
third line thereof.
(ii) Section 3(c) of the Agreement is hereby amended by
deleting the words "or any of its affiliates" from the first and second lines
thereof.
24
<PAGE> 33
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing the copy of this Confirmation enclosed for the purpose
and returning it to us by facsimile transmission to the Attention of: Equity
Derivatives Documentation Department (Telecopier No. (212) 428-1980/1983).
Very truly yours,
GOLDMAN, SACHS & CO.
By:
--------------------
Name:
Title:
Confirmed as of the date first above written:
- ----------------
By:
--------------------
Name:
Title:
25
<PAGE> 34
Exhibit 3.13
Ref:
Date: February 10, 2000
To: TRW Inc. ("Counterparty")
Attention: Ronald P. Vargo, Vice President and Treasurer
Tel: (216) 291-7500
Fax: (216) 291-7831
From: Goldman, Sachs & Co ("GS&Co.")
Tel: (212) 902-1981
Fax: (212) 428-1980
- --------------------------------------------------------------------------------
Dear Sir/Madam:
The purpose of this letter agreement (this "Confirmation") is to confirm the
terms and conditions of the above referenced transaction entered into between
Counterparty and GS&Co. on the Trade Date specified below (the "Transaction").
This Confirmation constitutes a "Confirmation" as referred to in the Master
Agreement specified below.
The definitions and provisions contained in the 1991 ISDA Definitions (as
supplemented by the 1998 Supplement, the "Swap Definitions") and in the 1996
ISDA Equity Derivatives Definitions (the "Equity Definitions", and together with
the Swap Definitions, the "Definitions"), in each case as published by the
International Swaps and Derivatives Association, Inc., are incorporated into
this Confirmation. In the event of any inconsistency between the Swap
Definitions and the Equity Definitions, the Equity Definitions will govern. In
the event of any inconsistency between this Confirmation and the Agreement (as
defined below) or the Definitions, the terms of this Confirmation shall govern.
For purposes of the Equity Definitions, this Transaction will be deemed to be a
Physically-settled Share Option Transaction with an Exercise Date equal to the
Valuation Date. For purposes of Section 4.4 of the Equity Definitions, the
Settlement Date will be treated as if it were a Cash Settlement Payment Date.
References to "Option Entitlement" in Section 9.3(b)(i)(A) of the Equity
Definitions shall be deemed to be references to a "Number of Shares". References
to an "option" in Section 9.7 of the Equity Definitions shall be deemed to be
references to a "forward".
1. (a) If GS&Co. and Counterparty are parties to an executed 1992 ISDA
Master Agreement (Multicurrency-Cross Border) (the "Agreement"), this
Confirmation supplements, forms part of, and is subject to, such
executed Agreement. This Confirmation shall be read and construed as
one with such Agreement and all other outstanding Confirmations between
GS&Co. and Counterparty, so that all such Confirmations and such
Agreement constitute a single agreement between GS&Co. and
Counterparty.
<PAGE> 35
(b) If GS&Co. and Counterparty are not yet parties to a Agreement, this
Confirmation (and each Confirmation in respect of each previous and
subsequent Transaction between us) shall be deemed to supplement, form
a part of, and be subject to (a) a single, standard form Agreement, as
if such an agreement had been executed by and between GS&Co. and
Counterparty without elections, changes or modifications thereto (other
than as made herein), governed by and construed in accordance with the
law of the State of New York, without reference to choice of law
doctrine, and (b) upon due execution by GS&Co. and Counterparty, and
notwithstanding clause (a) above, the Agreement that sets forth the
general terms and conditions applicable to Transactions between GS&Co.
and Counterparty. In addition, if the Agreement has not been executed
by GS&Co. and Counterparty, this Confirmation will itself evidence a
complete and binding agreement between GS&Co. and Counterparty as to
the terms of this Transaction. This Confirmation, all other
Confirmations between GS&Co. and Counterparty, and the applicable
Agreement shall constitute a single agreement between GS&Co. and
Counterparty. All provisions contained or incorporated by reference in
the Agreement between GS&Co. and Counterparty shall govern this
Transaction except as expressly modified below.
2. The terms of the particular Transaction to which this Confirmation
relates are as follows:
GENERAL TERMS:
- --------------
Trade Date: February 10, 2000
Termination Date: August 11, 2003 (or if not an Exchange
Business Day, the next succeeding
Exchange Business Day).
Seller: Counterparty
Buyer: GS&Co.
Shares: The common stock of RF Micro Devices,
Inc. (Symbol: RFMD)
Issuer: RF Micro Devices, Inc.
Number of Shares: 666,667, subject to adjustment as
provided in "Sale Period" below.
Floor Price: 100.00% of the Agency Execution Price.
Cap Price: 159.00% of the Agency Execution Price.
2
<PAGE> 36
Final Price: The arithmetic mean of the Relevant
Prices of the Shares on each Averaging
Date.
Prepayment Amount: 77.56% of the Agency Execution Price x
the Number of Shares.
Agency Execution Price: The average price per share at which
GS&Co. effects sales of Shares as
described under "Sale Period" below.
Prepayment Date: The third Currency Business Day following
the Last Sale Date (as defined in "Sale
Period" below).
Prepayment: On the Prepayment Date, GS&Co. shall pay
Counterparty the Prepayment Amount in
immediately available funds as payment in
full for the Number of Shares to Be
Delivered. GS&Co. shall have no payment
or delivery obligations pursuant to this
Confirmation other than the payment of
the Prepayment Amount on the Prepayment
Date.
Settlement Currency: USD
Exchange: NASDAQ
Related Exchange: CBOE
SALE PERIOD:
- ------------
Between the Trade Date and the twentieth Exchange Business Day immediately
following the Trade Date (the "Last Sale Date"), GS&Co. will make a good faith
effort to sell the full Number of Shares. Upon the earlier of (i) the sale of
the Number of Shares or (ii) the Last Sale Date, GS&Co. shall provide written
notice to Counterparty of the Agency Execution Price resulting therefrom and the
Prepayment Amount . GS&Co.'s calculations of the Agency Execution Price and the
Prepayment Amount shall be conclusive absent manifest error. If GS&Co. does not
sell the full Number of Shares by the close of the Exchange on the Last Sale
Date, GS&Co. shall promptly give notice to Counterparty that the Number of
Shares shall be reduced to such number as GS&Co. has sold pursuant to this
paragraph.
VALUATION:
- ----------
Valuation Time: At the close of trading in respect of
regular trading hours on the Exchange,
without regard to extended trading hours
on the Exchange, if any.
Valuation Date: The Termination Date
3
<PAGE> 37
Averaging Dates: Each of the five Exchange Business Days
commencing on, and including, August 5,
2003 to and including the Valuation Date.
Averaging Date Market
Disruption: Modified Postponement
SETTLEMENT TERMS: Settlement of this Transaction shall be
----------------- Physical Settlement.
Physical Settlement: On the Settlement Date, Counterparty will
deliver to GS&Co. the Number of Shares to
be Delivered.
Number of Shares
to be Delivered: A number of Shares determined by the
Calculation Agent on the Valuation Date
based on the following formula:
a) if the Final Price is less than the
Floor Price, a number of Shares
equal to:
Number of Shares
b) if the Final Price is less than or
equal to the Cap Price but greater
than or equal to the Floor Price, a
number of Shares equal to:
Floor Price x Number of Shares
-----------
Final Price
and
c) if the Final Price is greater than
the Cap Price, a number of Shares
equal to:
<TABLE>
<S> <C>
Final Price - (Cap Price-Floor Price)
-------------------------------------X Number of Shares
Final Price
</TABLE>
Settlement Date: Three (3) Exchange Business Days after
the Valuation Date.
Failure to Deliver: Inapplicable
Delivery of Number
of Shares to be Delivered: On the Settlement Date, Counterparty
shall satisfy its delivery obligation by
delivering to GS&Co. the number of
Pledged Shares (or other Shares
acceptable to GS&Co.) equal to the Number
of the Shares to be Delivered.
4
<PAGE> 38
ADJUSTMENTS:
- ------------
Method of Adjustment: In the event of the occurrence of a
Potential Adjustment Event, the
Calculation Agent will determine whether
such Potential Adjustment Event has a
diluting or concentrative effect on the
theoretical value of the Shares and, if
so, will (i) make the corresponding
adjustment(s), if any, to the Number of
Shares, the Floor Price and the Cap Price
and, in any case, any other variable
relevant to the settlement or payment
terms of this Transaction as the
Calculation Agent determines appropriate
to account for that diluting or
concentrative effect and (ii) determine
the effective date(s) of the
adjustment(s). For the avoidance of
doubt, in connection with the adjustments
made pursuant to the preceding sentence,
if as a result of a Potential Adjustment
Event existing holders of Shares receive
a distribution or dividend of securities
(other than Shares) that are Marketable
Securities (the "Additional Shares"),
then the term "Shares" will mean a basket
of Shares composed of the original Shares
and the Additional Shares and this
Transaction will become a Share Basket
Transaction.
"Marketable Securities" means equity
securities that are publicly traded on a
United States national securities
exchange or quoted on the Nasdaq National
Market.
Dividend Adjustment: If the Shares are subject to a cash
dividend in excess of the Regular
Dividend, then on the ex-dividend date
for the payment of each such dividend the
Calculation Agent will reduce the Floor
Price and the Cap Price by the amount per
Share of each such dividend in excess of
the Regular Dividend. For the avoidance
of doubt, if as a result of any Merger
Event or Potential Adjustment Event (or
any combination thereof) the Shares are
adjusted to include the Shares of an
issuer other than the initial Issuer or
of more than one issuer (whether or not
including the initial Issuer), then such
adjustment shall apply with respect to
any cash dividends to which the successor
or additional Shares of the applicable
issuer(s) are subject. "Regular Dividend"
means $0.00 per share per quarter.
EXTRAORDINARY EVENTS:
- ---------------------
Consequences of Merger Event:
5
<PAGE> 39
(a) Share-for-Share: Cancellation and Payment: provided,
however, if the New Shares are Marketable
Securities, Alternative Obligation shall
apply.
(b) Share-for-Other: Cancellation and Payment.
(c) Share-for-Combined: Cancellation and Payment; provided,
however, if any portion of the
consideration for the relevant shares
consists of Marketable Securities (the
"Marketable Securities Consideration"),
Alternative Obligation shall apply to
that portion of the Transaction
corresponding to the Marketable
Securities Consideration.
Notwithstanding anything to the contrary
in the Equity Definitions, the amount
payable under this Transaction upon the
occurrence of a Merger Event,
Nationalization or Insolvency shall be
calculated by the Calculation Agent in
good faith in accordance with Section 9.7
of the Equity Definitions using, among
other things, the factors identified in
subparagraphs (i), (ii) and (iii)
therein, but without the requirement of
soliciting dealer quotations therefor.
Notwithstanding Section 9.2(b) of the
Equity Definitions, "Merger Date" means
the date of closing of the Merger Event.
In connection with a Share-for-Share or Share-for-Combined Merger Event in (a)
or (c) above, then to the extent the consequence of any Merger Event is
Alternative Obligation, in addition to any other adjustments in respect of the
Merger Event, the Calculation Agent will adjust the Floor Price and the Cap
Price as follows (which adjustments, together with the other adjustments in
respect of the Merger Event are intended to preserve the economic equivalent
value of this Transaction to the parties):
(i) as of the Exchange Business Day immediately prior to the Announcement Date,
the Calculation Agent will determine an amount (in USD) equal to the change in
market value in this Transaction resulting from the substitution of Marketable
Securities for the Shares; and
(ii) on the Merger Date, the Calculation Agent will adjust the Floor Price and
the Cap Price by the amounts necessary, given the then remaining life of this
Transaction, to achieve the change in market value determined under clause (i).
The Calculation Agent will make its determination under clause (i) using a
Transaction maturity from the Exchange Business Day immediately prior to the
Announcement Date to the Termination Date and will base its determination on the
difference (positive or negative) between
6
<PAGE> 40
the Shares and the Marketable Securities with respect to Volatility, Dividend
Paid and Stock Loan Rate. For this purpose,"Volatility" and "Stock Loan Rate"
mean, respectively, the volatility and stock loan rebate rate agreed to by
Counterparty and the Calculation Agent, and "Dividend Paid" means the amount
determined by the Calculation Agent to have been the ordinary cash dividend
amount paid per the relevant share in the calendar year ending on the
Announcement Date (and, in the case of Marketable Securities, shall be zero if
the Marketable Securities did not exist prior to the Merger Event). If the
parties cannot agree on a Volatility or Stock Loan Rate for the Shares or
Marketable Securities prior to the Merger Date, the Calculation Agent will
determine the relevant amount by obtaining from each of three leading,
independent broker-dealers who actively make markets in transactions similar to
this Transaction a quotation for such amount and taking the arithmetic average
of the three quotations. In obtaining volatility quotations, the Calculation
Agent will ask the quoting dealer to provide the mid-market volatility that the
dealer would have provided for this Transaction if the dealer had been asked to
enter into the then remainder of this Transaction (in the case of a volatility
quotation for Marketable Securities, on Marketable Securities and as otherwise
adjusted for the Merger Event) on the Exchange Business Day immediately prior to
the Announcement Date.
NATIONALIZATION OR
INSOLVENCY: Cancellation & Payment
- -----------
3. CALCULATION AGENT: GS&Co.
4. NON-RELIANCE: Each party represents to the other party
that it is not relying on any
communication (written or oral) of the
other party as investment advice or as a
recommendation to enter into this
Transaction, it being understood that
information and explanations related to
the terms and conditions of this
Transaction shall not be considered
investment advice or a recommendation to
enter into this Transaction. No
communication (written or oral) received
from the other party shall be deemed to
be an assurance or guarantee as to the
expected results of this Transaction.
5. GOVERNING LAW: The laws of the State of New York
(without reference to choice of law
doctrine)
6. COLLATERAL: On or prior to Trade Date, Counterparty
will deposit and thereafter maintain with
GS&Co. a number of Shares equal to the
Number of Shares (such Shares or other
collateral, any distributions thereon or
proceeds thereof and any substitutions
therefor, the "Pledged Shares" or the
"Collateral").
Counterparty represents that (i) it is
the legal, record and beneficial owner of
all Collateral free of all liens, claims,
7
<PAGE> 41
equities and encumbrances and (ii) it has
the power and has obtained all of the
necessary consents and approvals to grant
a first priority security interest to
GS&Co. in the Collateral.
The Counterparty hereby grants GS&Co. a
first priority security interest in, and
a first priority lien on, the Collateral
as collateral for its obligations under
this Transaction and the Agreement.
Upon any default by Counterparty
(including the occurrence of an Event of
Default or Termination Event under the
Agreement), GS&Co. shall have all of the
rights with respect to the Collateral of
a secured party under the New York
Uniform Commercial Code. GS&Co. shall not
be liable for any loss or damages
occasioned by any sale or disposal of the
Collateral unless such liability results
primarily from the negligence (as
determined by a final and nonappealable
judgment of a court of competent
jurisdiction) or bad faith of GS&Co.
In the absence of an Event of Default or
a Termination Event or the occurrence of
an event which with the passage of time
could result in an Event of Default or a
Termination Event, GS&Co. shall pay over,
or cause to be paid over, to the
Counterparty any cash dividends actually
received by GS&Co. on the Shares (other
than any such dividend which GS&Co.
determines in its good faith discretion
was not paid by the Issuer in the
ordinary course of its business or
otherwise constitutes an "extraordinary"
dividend).
Except in the case where the Collateral
has been rehypothecated by GS&Co., the
Counterparty shall be entitled to
exercise any and all voting and other
consensual rights pertaining to the
Collateral or any part thereof for any
purpose not inconsistent with the terms
of this Transaction.
Counterparty will faithfully preserve and
protect GS&Co.'s security interest in the
Collateral, will defend GS&Co.'s right,
title, lien and security interest in and
to the Collateral against the claims and
demands of all persons whomsoever, and
will do all such acts and things and
deliver all such documents and
instruments, including without limitation
further pledges, assignments, financing
statements and continuation statements,
as GS&Co. in its sole discretion
8
<PAGE> 42
may reasonably deem necessary or
advisable from time to time in order to
preserve, protect and perfect such
security interest or to enable GS&Co. to
exercise or enforce its rights with
respect to any Collateral. Counterparty
hereby irrevocably appoints GS&Co. as
Counterparty's attorney-in-fact for the
purpose of taking any action and
executing any instrument which GS&Co. may
deem necessary or advisable to preserve,
protect and perfect such security
interest or to enable GS&Co. to exercise
or enforce its rights with respect to any
Collateral.
Counterparty will not permit any lien,
security interest, adverse claim,
restrictions on transfer or other
encumbrance, other than the lien and
security interest Counterparty created
hereby in favor of GS&Co., to exist upon
any of the Collateral.
Counterparty will not take any action
that could in any way limit or adversely
affect the ability of GS&Co. to realize
upon its rights in the Collateral.
Notwithstanding any limitation otherwise
imposed by Section 9-207(2)(e) of the New
York Uniform Commercial Code, GS&Co.
shall be entitled to pledge, repledge,
hypothecate, rehypothecate or further
assign (collectively, "rehypothecate")
any Collateral delivered to GS&Co. by
Counterparty pursuant to this Agreement,
subject to the obligation to return such
Collateral or equivalent Collateral to
Counterparty' PROVIDED, HOWEVER, that no
such rehypothecation may occur within 14
calendar days of the Last Sale Date;
GS&Co. must use standard market
documentation for the type of
hypothecation involved; such
documentation must provide that GS&Co.
can reacquire the Collateral upon not
less than three business days' notice;
and GS&Co. will exercise that right upon
written notice from the Counterparty.
7. REPRESENTATIONS AND Counterparty represents and warrants to,
AGREEMENTS OF and agrees with, GS&Co. as follows:
COUNTERPARTY:
Counterparty (a) has such knowledge and
experience in financial and business
affairs as to be capable of evaluating
the merits and risks of entering into the
Transaction; (b) is an "eligible swap
participant" as defined in the Part 35
Regulations of the U.S. Commodity Futures
Trading
9
<PAGE> 43
Commission; (c) has consulted with its
own legal, financial, accounting and tax
advisors in connection with the
Transaction; (d) is entering into the
Transaction as principal (and not as
agent or in any other capacity, fiduciary
or otherwise) for a bona fide business
purpose in conjunction with its line of
business to hedge an existing position
and not for purposes of speculation; and
(e) has determined that this Transaction
is prudent and appropriate in light of
its organizational documentation,
financial situation and investment
objectives and guidelines and policies.
As of the date of Counterparty's most
recent Schedule 13D filing with the
Securities and Exchange Commission,
Counterparty was the beneficial owner (as
defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as
amended (the "Exchange Act")) of 15.7% of
the outstanding shares of the Issuer.
Counterparty is currently, and in the
past has been, in compliance with its
reporting obligations under Section 13(d)
of the Exchange Act. A list of all such
Schedule 13D filings is attached as Annex
A and copies of all such filings have
been provided to GS&Co. Counterparty will
provide GS&Co. a draft of the amendment
to its Schedule 13D which describes the
Transaction and will give GS&Co. a
reasonable opportunity to comment on the
draft. An amendment to the Schedule 13D
will be promptly filed by the
Counterparty with the Securities and
Exchange Commission. Counterparty will
comply with its obligations in Section
14(i) of the Confirmation in connection
with future filings under Section 13(d)
of the Exchange Act made on or after the
date of this Confirmation.
Neither Counterparty nor any of its
Affiliates is in possession of any
non-public material information regarding
the Issuer; and, during the period that
GS&Co. effects sales of Shares pursuant
to Section 2 hereof, Counterparty will
notify by telephone Alexandra Antoniadis
(Telephone: (212) 902-9509) promptly upon
coming into possession of any such
material non-public information (such
telephonic notice to be promptly
confirmed in writing). In the event that
Counterparty so notifies such personnel
of GS&Co. during the Sale Period, GS&Co.
will as promptly as practicable
discontinue the sale of the Shares, and
the Number of Shares will be
10
<PAGE> 44
reduced to such number as GS&Co. has sold
prior to its discontinuing such sales and
the date such sales are discontinued will
be the Last Sale Date.
Counterparty and its affiliates have not
sold, or contracted to sell, any Shares
(or any other security or instrument that
will be subject to aggregation under Rule
144(e)) or any beneficial interest
therein during the three-month period and
have not sold or purchased, or contracted
to sell or purchase, any Shares (or any
other security or derivative security
that would be subject to reporting under
Section 16 of the Exchange Act) or any
beneficial interest therein during the
six-month period ending on the date of
this Confirmation, except as reported on
Counterparty's Form 144 and Form 4 and
Form 5 filings with the SEC or as
otherwise listed on Annex A. Counterparty
shall comply with the reporting and other
requirements of Section 16 of the
Exchange Act and the rules and
regulations promulgated thereunder.
The Pledged Shares are not subject to any
restrictions on transfer other than those
arising under federal or state securities
laws. No Pledged Shares are entitled to
the benefits of any registration rights
agreement or similar agreement except
pursuant to the agreement identified in
Annex B hereto (the "Registration Rights
Agreement"). Within the last month,
Counterparty has not offered any Shares
through any prospectus or other offering
document. During the Sale Period,
Counterparty will not exercise any of its
rights under the Registration Rights
Agreement in respect of any Shares or
permit any Shares to be included in a
registered offering without GS&Co.'s
prior written consent. Assuming that the
terms of the Transaction are consistent
with the terms of a "Contract" as
described in Section I.A. of the Goldman,
Sachs & Co. (December 20, 1999)
interpretive letter (the "Interpretive
Letter"), and based on the representation
of GS&Co. below, the Shares to be
delivered on Physical Settlement shall be
freely transferable to the public without
any restrictions whatsoever. Counterparty
will not take any action so as to cause
the terms of the Transaction not to
comply with Section I.A. of the
Interpretive Letter. Counterparty has
furnished GS&Co. with copies of all
agreements, contracts or instruments that
relate to the Pledged Shares.
11
<PAGE> 45
The Pledged Shares are transferable by
the Counterparty to the public pursuant
to Rule 144 under the Securities Act.
Counterparty acknowledges and agrees that
(i) assuming that the terms of the
Transaction are consistent with the terms
of a "Contract" as described in Section
I.A. of the Interpretive Letter, and
based on the representation of GS&Co.
below, the entering into of this
Confirmation will constitute a "sale" of
the Pledged Shares for purposes of Rule
144, (ii) Counterparty has not taken and
will not take any action that would cause
such sale to exceed the volume limitation
of Rule 144(e), (iii) Counterparty has
not taken and will not take any action
that could cause the sale pursuant to
this Confirmation not to comply with Rule
144, (iv) Counterparty will transmit a
Form 144 for filing with the Securities
and Exchange Commission simultaneously
with the execution of this Confirmation
and such Form 144 shall be in a form
reasonably acceptable to GS&Co., (v)
Counterparty will deliver a
representation letter to GS&Co. in a form
customarily used by GS&Co. simultaneous
with the execution of this Confirmation
and each representation, warranty and
agreement in such representation letter
shall be deemed to be incorporated into
this Confirmation and (vi) upon the Last
Sale Date, Counterparty agrees to
transmit for filing with the Securities
and Exchange Commission an amendment to
the previously filed Form 144 in a form
reasonably acceptable to GS&Co.
Counterparty is not and has not been the
subject of any civil proceeding of a
judicial or administrative body of
competent jurisdiction that could
reasonably be expected to impair
Counterparty's ability to perform its
obligations hereunder.
Within three Business Days after any
financial officer of Counterparty obtains
knowledge of an Event of Default or the
occurrence of any event that with the
giving of notice, the lapse of time or
both would be such an Event of Default,
Counterparty will immediately notify
GS&Co. of the occurrence of such Event of
Default.
Counterparty has filed or caused to be
filed all material tax returns that are
required to be filed by Counterparty and
has paid all material taxes shown to be
due and payable on said returns or on any
assessment made against Counterparty or
any of Counterparty's property and all
other material taxes,
12
<PAGE> 46
assessments, fees, liabilities or other
charges imposed on Counterparty or any of
Counterparty's property by any
governmental authority.
Counterparty was not or will not be
insolvent at the time this Transaction is
consummated, and was not or will not be
rendered insolvent or will not be
insolvent as a result thereof.
Counterparty has not engaged and will not
engage in any business or transaction
with GS&Co. after which the property
remaining with Counterparty was or will
be unreasonably small in relation to its
business. At the time of any transfer to
or for the benefit of GS&Co.,
Counterparty did not intend or will not
intend to incur, and did not incur or
will not incur, debts that were beyond
the ability of Counterparty to pay as
they mature.
GS&Co. hereby represents and warrants to,
and agrees with, Counterparty that the
sale of Shares by GS&Co. during the Sale
Period will comply with the manner of
sale requirements of Rule 144(f) and (g).
8. ACKNOWLEDGMENTS: The parties hereto intend for:
(i) This Transaction to be a "securities
contract" as defined in Section 741(7) of
the Bankruptcy Code (Title 11 of the
United States Code) (the "Bankruptcy
Code"), qualifying for protection under
Section 555 of the Bankruptcy Code;
(ii) A party's right to liquidate this
Transaction and to exercise any other
remedies upon the occurrence of any Event
of Default under the Agreement with
respect to the other party to constitute
a "contractual right" as defined in the
Bankruptcy Code.
(iii) Any cash, securities or other
property provided as performance
assurance, credit support or collateral
with respect to this Transaction to
constitute "margin payments" as defined
in the Bankruptcy Code.
(iv) All payments for, under or in
connection with this Transaction, all
payments for the Shares and the transfer
of such Shares to constitute "settlement
payments" as defined in the Bankruptcy
Code.
9. INDEMNIFICATION: Counterparty agrees to indemnify and hold
harmless
13
<PAGE> 47
GS&Co., its Affiliates and its assignees
and their respective directors, officers,
employees, agents and controlling persons
(GS&Co. and each such person being an
"Indemnified Party") from and against any
and all losses, claims, damages and
liabilities, joint or several, to which
such Indemnified Party may become
subject, and relating to or arising out
of any of the transactions contemplated
by this Confirmation, and will reimburse
any Indemnified Party for all expenses
(including reasonable counsel fees and
expenses) as they are incurred in
connection with the investigation of,
preparation for or defense or settlement
of any pending or threatened claim or any
action, suit or proceeding arising
therefrom, whether or not such
Indemnified Party is a party and whether
or not such claim, action, suit or
proceeding is initiated or brought by or
on behalf of Counterparty. Counterparty
will not be liable under the foregoing
indemnification provision to the extent
that any loss, claim, damage, liability
or expense results primarily from the
negligence (as determined by a final and
nonappealable judgment of a court of
competent jurisdiction) or bad faith of
GS&Co. If for any reason the foregoing
indemnification is unavailable to any
Indemnified Party or insufficient to hold
harmless any Indemnified Party, then
Counterparty shall contribute, to the
maximum extent permitted by law, to the
amount paid or payable by the Indemnified
Party as a result of such loss, claim,
damage or liability. Counterparty also
agrees that no Indemnified Party shall
have any liability to Counterparty or any
person asserting claims on behalf of or
in right of Counterparty in connection
with or as a result of any matter
referred to in this Confirmation or the
Agreement except to the extent that any
losses, claims, damages, liabilities or
expenses incurred by Counterparty result
primarily from the negligence (as
determined by a final and nonappealable
judgment of a court of competent
jurisdiction) or bad faith of the
Indemnified Party. The provisions of this
Section 9 shall survive completion of the
Transaction contemplated by this
Confirmation and any assignment and
delegation pursuant to Section 14(a) of
this Confirmation.
10. TERMINATION PROVISIONS:
(a) Sections 5(a)(v), 5(a)(vi),
5(a)(vii), 5(a)(viii), and 5(b)(iv) shall
not apply to GS&Co.
14
<PAGE> 48
(b) "SPECIFIED TRANSACTION" will have the
meaning specified in Section 14 of the
Agreement, except that it will also
include any forward transactions in
securities and any margin loan or
extension of credit by GS&Co. to
Counterparty.
(c) (i) The "CROSS DEFAULT" provisions of
Section 5(a)(vi) of the Agreement as
amended will apply to Counterparty; and
Section 5(a)(vi) of the Agreement is
hereby amended by deleting in the seventh
line thereof the words ", or becoming
capable at such time of being declared,".
(ii) "SPECIFIED INDEBTEDNESS" will
have the meaning specified in Section 14
of the Agreement, except as excluded in
the proviso to this definition, and shall
include for the avoidance of doubt, all
reimbursement obligations in respect of
letters of credit or financial guaranty
insurance or surety bonds issued for the
account of that person; provided however,
that obligations in respect of interbank
deposits received by GS&Co. shall not
constitute Specified Indebtedness for the
purposes of clause (2) of Section
5(a)(vi) of the Agreement to the extent
they are not paid when due only as the
result of inadvertence or administrative
error.
(iii) "THRESHOLD AMOUNT" means U.S.
$100,000,000 or its equivalent in another
currency.
(d) Each of Section 5(a)(vii)(4)(B) and
Section 5(a)(vii)(7) of the Agreement is
hereby amended by deleting the number
"30" and replacing it with the number
"90".
(e) Section 5(a)(viii) of the Agreement
is hereby amended by deleting the
introductory paragraph in its entirety
and replacing it with the following:
"The party consolidates or amalgamates
with, or merges with or into, or
transfers all or substantially all its
assets to, or reorganizes, incorporates,
reincorporates, or reconstitutes into or
as, another entity and, at the time of
such consolidation, amalgamation, merger,
transfer, reorganization, incorporation,
reincorporation or reconstitution."
15
<PAGE> 49
(f) Section 5(b)(iv) of the Agreement is
hereby amended by: (i) deleting in the
fourth line thereof the words "another
entity" and replacing them with the words
"or reorganizes, incorporates,
reincorporates, reconstitutes, or reforms
into or as, or receives all or
substantially all of the assets and/or
liabilities or obligations of, another
entity or X, such Specified Entity
effects a recapitalization, liquidating
dividend, leveraged buy-out, other
similar highly-leveraged transaction,
redemption of indebtedness, or stock
buy-back or similar call on equity"; (ii)
deleting in the fifth line thereof the
words "the resulting, surviving or
transferee" and replacing them with the
words "X, such Specified Entity or any
resulting, surviving, transferee,
reorganized, reconstituted, reformed, or
recapitalized"; and (iii) deleting in the
seventh line thereof the words "its
successor or transferee" and replacing
them with the words "any resulting,
surviving, transferee, reorganized,
reconstituted, reformed or recapitalized
entity".
(g) The "CREDIT EVENT UPON MERGER"
provisions of Section 5(b)(iv) as amended
above will apply to Counterparty.
Notwithstanding Section 5(b)(iv) of the
Agreement, "Credit Event Upon Merger"
means that a Designated Event (as defined
below) occurs with respect to a party and
such action does not constitute an event
described in Section 5(a)(viii) of the
Agreement but, after the occurrence of
the Designated Event, the successor,
surviving or transferee entity (which
will be the Affected Party) has a credit
rating of BB+ from Standard & Poor's
Ratings Group or Ba1 from Moody's
Investors Service Corporation or a lower
rating from either such rating agency.
For the purposes hereof, a "Designated
Event" means, with respect to a party,
that after the Trade Date of a
Transaction:
(i) the party consolidates or amalgamates
with, or merges with or into, or
transfers all or substantially all its
assets (or any substantial part of the
assets comprising the business conducted
by that party as of the Trade Date of
that Transaction) to, or receives all or
substantially all the assets and
obligations of, another entity;
(ii) any person as defined for purposes
of Section 13(d) under the Securities
Exchange Act of 1934, as amended as of
the Trade Date (the "Exchange Act"), or
entity or group (as defined for purposes
of Section 13(d) under the Exchange
16
<PAGE> 50
Act) acquires directly or indirectly the
beneficial ownership (as defined for
purposes of Section 13(d) under the
Exchange Act) of equity securities having
the power to elect a majority of the
board of directors of the party; or
(iii) the party enters into any agreement
providing for any of the foregoing.
(h) The "AUTOMATIC EARLY TERMINATION"
provision of Section 6(a) will not apply
to GS&Co. and will apply to Counterparty.
(i) PAYMENTS ON EARLY TERMINATION. For
the purpose of Section 6(e):
(i) Loss will apply.
(ii) The Second Method will apply.
(j) "TERMINATION CURRENCY" means United
States Dollars.
11. TAX REPRESENTATIONS. (a) PAYER REPRESENTATIONS. For purposes
of Section 3(e) of the Agreement, GS&Co.
and Counterparty each make the following
representation:
It is not required by any applicable law,
as modified by the practice of any
relevant governmental revenue authority,
of any Relevant Jurisdiction to make any
deduction or withholding for or on
account of any Tax from any payment
(other than interest under Section 2(e),
6(d)(ii) or 6(e) of the Agreement) to be
made by it to the other party under the
Agreement. In making this representation,
it may rely on (i) the accuracy of any
representations made by the other party
pursuant to Section 3(f) of the
Agreement, (ii) the satisfaction of the
agreement contained in Section 4(a)(i) or
4(a)(iii) of the Agreement and the
accuracy and effectiveness of any
document provided by the other party
pursuant to Section 4(a)(i) or 4(a)(iii)
of the Agreement, and (iii) the
satisfaction of the agreement of the
other party contained in Section 4(d) of
the Agreement, provided that it shall not
be a breach of this representation where
reliance is placed on Clause (ii) and the
other party does not deliver a form or
17
<PAGE> 51
document under Section 4(a)(iii) by
reason of material prejudice to its legal
or commercial position.
(b) PAYEE REPRESENTATIONS. For the
purpose of Section 3(f) of the Agreement;
Counterparty represents that is a
corporation organized under the laws of
the State of Ohio and it is not a foreign
person for United States federal income
tax purposes.
GS&Co. represents that it is a limited
partnership organized under the laws of
the State of New York and it is not a
foreign person for United States federal
income tax purposes.
12. AGREEMENT TO DELIVER DOCUMENTS.
For the purpose of Section 4(a), each party agrees to deliver the following
documents, as applicable:
(a) Tax forms, documents, or certificates to be delivered are:
None
(b) Other documents to be delivered are:
<TABLE>
<CAPTION>
COVERED BY
PARTY REQUIRED TO DATE BY WHICH SECTION 3(D)
DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE TO BE DELIVERED REPRESENTATION
---------------- ------------------------- --------------- --------------
<S> <C> <C> <C>
Counterparty Certified incumbency certificate or At execution of this Yes
other evidence of authority and Agreement
specimen signatures with respect to
Counterparty and its signatories
Counterparty Annual Financial Statement of Within 90 days of the Yes
Counterparty last day of each
calendar
year, with
respect to
financial
statements
relating to
such
calendar
year.
Counterparty Interim Financial Statement of Promptly following
Counterparty demand by Party A
</TABLE>
18
<PAGE> 52
<TABLE>
<CAPTION>
COVERED BY
PARTY REQUIRED TO DATE BY WHICH SECTION 3(d)
DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE TO BE DELIVERED REPRESENTATION
---------------- ------------------------- --------------- --------------
<S> <C> <C> <C>
Counterparty Evidence reasonably satisfactory to At execution of this Yes
and GS&Co. the other party of the signing Agreement and
authority and specimen signature of thereafter on request
any individual executing this
Agreement, any Credit Support
Document and any Confirmation on
its behalf
</TABLE>
13. MISCELLANEOUS.
(a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a):
Address for notices or communications to GS&Co.:
Address: 85 Broad Street
New York, New York 10004, U.S.A.
Attention: Alexandra Antoniadis
Telex No.: 12-5654
Answerback: GOLSAX
Facsimile No.: 212-902-2065
Telephone No.: 212-902-9509
Electronic Messaging
System Details: None.
With a copy to:
Address: 85 Broad Street
New York, New York 10004, U.S.A.
Attention: Treasury Administration
Telex No.: 421344
Answerback: GOLSAX
Facsimile No.: 212-902-3325
Telephone No.: 212-902-1000
Electronic Message
System Details: None.
19
<PAGE> 53
Address for notices or communications to Counterparty:
Address: 1900 Richmond Road
Lyndhurst, Ohio 44124, U.S.A.
Attention: Ronald P. Vargo
Cc: Secretary
Telex No.: None
Answerback: None
Facsimile No.: (216) 291-7831
Telephone No.: (216) 291-7500
Electronic Message
System Details: None.
(b) OFFICES; MULTIBRANCH PARTIES.
(i) The provisions of Section 10(a) will be applicable.
(ii) For the purpose of Section 10(c):
GS&Co. is not a Multibranch Party.
Counterparty is not a Multibranch Party.
(c) JURISDICTION. Section 13(b) of the Agreement is hereby amended by:
(i) deleting in the second line of Subparagraph (i) thereof the word "non"; and
(ii) deleting the final paragraph thereof.
(d) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) of the
Agreement will not apply to Transactions.
(e) "WAIVER OF JURY TRIAL". To the extent permitted by applicable law,
each party irrevocably waives any and all right to trial by jury in any legal
proceeding in connection with the Agreement or any Transaction.
(f) PROCESS AGENT. For the purpose of Section 13(c):
GS&Co. appoints as its Process Agent: None
Counterparty appoints as its Process Agent in the Borough of Manhattan in New
York City:
Name: CT Corporation System
20
<PAGE> 54
Address: 111 Eighth Avenue
Telex No.: None Answerback: None
Facsimile No.: None
Telephone No.: (212) 894-8440
(g) "Annual Financial Statements" means a certified balance sheet and
income statement of such party's assets, liabilities and results of operations,
certified by a public accountant of national recognition and reputation and
prepared in accordance with accounting principles that are generally accepted in
the United States of America, as of the end of the most recent fiscal year.
(h) "Interim Financial Statements" means a balance sheet and income
statement setting forth such party's assets, liabilities and results of
operations in accordance with Regulation S-X.
21
<PAGE> 55
14. OTHER PROVISIONS.
(a) TRANSFER. Section 7 of the Agreement is replaced in its entirety by
the following:
GS&Co. may assign its rights and delegate its obligations under any Transaction,
in whole or in part, to any affiliate (an "Assignee") of GS&Co. effective (the
"Affiliate Effective Date") upon delivery to Counterparty of an executed
acceptance and assumption by the Assignee (an "Assumption") of the transferred
obligations of GS&Co. under the Transaction (the "Transferred GS&Co.
Obligations") and GS&Co. may assign its rights and delegate its obligations
under any Transaction, in whole or in part, to a third party that has a long-
term, unsubordinated debt rating of A- as rated by Standard & Poor's Ratings
Group and A3 as rated by Moody's Investor Services Corporation effective (the
"Third Party Effective Date") upon delivery to Counterparty of an executed
Assumption by the third party of the Transferred GS&Co. Obligations under the
Transaction. On the Affiliate Party Effective Date or the Third Party Effective
Date, GS&Co. shall be released from all obligations and liabilities arising
under or with respect to the Transferred GS&Co. Obligations, except GS&Co. will
retain its rights under Section 9 of this Confirmation.
With the prior written consent of GS&Co., which shall not be unreasonably
withheld, Counterparty may assign its rights and delegate its obligations under
any Transaction, in whole or in multiples of not less than 100,000 Shares, to a
third party effective upon delivery to GS&Co. of an Assumption of the
transferred obligations of Counterparty under the Transaction ("the Transferred
Counterparty Obligations"), provided that such third party (i) is not an
"affiliate" (as used for purposes of Section 2(a)(11) of the Securities Act) of
the Issuer and delivers to GS&Co. evidence reasonably satisfactory to it to
evidence this fact, (ii) delivers to GS&Co. a number of Shares equal to the
product of (a) a fraction, the numerator of which is the maximum number of
Shares subject to the Transferred Counterparty Obligations and the denominator
is the Number of Shares and (b) the Number of Shares, as Collateral for its
obligations, which Shares shall be freely transferable to the public without any
restrictions on transfer whatsoever, and grants to GS&Co. a first priority
security interest in, and a first priority lien on, the Collateral and (iii)
makes the same representations, warranties, covenants and agreements as
Counterparty in this Confirmation, except those that relate to Rule 144 of the
Securities Act, and those that relate to Sections 13 and 16 of the Exchange Act
to the extent that such third party is (and remains) not subject to the
reporting obligations under those Sections. Upon delivery to GS&Co. of an
executed Assumption by the third party of the Transferred Counterparty
Obligations under the Transaction, Counterparty shall be released from all
obligations and liabilities arising under or with respect to the Transferred
Counterparty Obligations, except Section 9 shall continue to apply as between
Counterparty and GS&Co.
(b) SEVERABILITY. If any term, provision, covenant, or condition of
this Confirmation, or the application thereof to any party or circumstance,
shall be held to be invalid or unenforceable (in whole or in part) for any
reason, the remaining terms, provisions, covenants, and conditions hereof shall
continue in full force and effect as if this Confirmation had been executed with
the invalid or unenforceable portion eliminated, so long as this Confirmation as
so modified continues to express, without material change, the original
intentions of the parties as to the subject matter of this Confirmation and the
deletion of such portion of this Confirmation will
22
<PAGE> 56
not substantially impair the respective benefits or expectations of the parties
to this Confirmation ; provided, however, that this severability provision shall
not be applicable if any provision of Section 2, 5, 6, or 13 of the Agreement
(or any definition or provision in Section 14 to the extent it relates to, or is
used in or in connection with any such Section) shall be so held to be invalid
or unenforceable.
(c) BINDING EFFECT. This Confirmation shall bind and inure to the
benefit of GS&Co. and Counterparty and their respective heirs, distributees,
executors, personal representatives and administrators and permitted successors
and assigns."
(d) DEFINITIONS. The definition of "law" in Section 14 of this
Agreement is hereby amended by the insertion of the words "either generally or
with respect to a party to this agreement" after the phrase "any relevant
governmental revenue authority" and the addition of the words "Change in Tax
Law," before the word "lawful" in the second line. For the purposes of this
Agreement, "Contractual Currency" means United States Dollars.
(e) DEALINGS IN THE SHARES. Counterparty hereby acknowledges and agrees
that GS&Co. and its Affiliates may engage in proprietary trading for their
accounts in the Shares (and related securities) and that such trading may affect
the value of the Shares and the amounts payable hereunder.
(f) DEFAULT UNDER SPECIFIED TRANSACTIONS. Section 5(a)(v)(2) of the
Agreement is hereby amended by replacing the words "the last" with the word
"any".
(g) CONDITIONS PRECEDENT. The condition precedent set forth in clause
(1) of Section 2(a)(iii) of the Agreement shall not apply to payments scheduled
to be made by Counterparty to GS&Co. under this Confirmation.
(h) CONFIDENTIALITY. Each party considers its participation in each and
any Transaction and the details thereof (collectively, the "Information") to
constitute confidential and valuable business information. Accordingly, each
party agrees to keep the Information strictly confidential and not to disclose
it (or any portion thereof) to any third party except (i) with the prior written
consent of the other party or (ii) pursuant to the demand, request or
requirement of any law, court, regulatory or self-regulatory agency having
jurisdiction over a party or pursuant to Rule 144 under the Securities Act or
Section 13(d) of the Exchange Act. In such a case, Counterparty will notify
GS&Co. reasonably in advance of any requirement or pending request for the
disclosure of any Information and prior to the disclosure shall take all such
actions reasonably requested by GS&Co. to preserve the confidentiality of such
Information.
(i) GROSS UP. The third line of Section 2(d)(i) of the Agreement is
hereby amended by the insertion before the phrase "of any relevant governmental
revenue authority" of the words ", application or official interpretation" and
the insertion of the words "(either generally or with respect to a party to this
Agreement)" after such phrase.
(j) MAINTAIN AUTHORIZATIONS. Section 4(b) of the Agreement is hereby
amended by deleting the words "use all reasonable efforts to" from the first and
third lines thereof.
23
<PAGE> 57
(k) REPRESENTATIONS.
(i) Section 3(a)(iii) of the Agreement is hereby amended by
inserting the word "material" between the words "any" and "contractual" in the
third line thereof.
(ii) Section 3(c) of the Agreement is hereby amended by
deleting the words "or any of its affiliates" from the first and second lines
thereof.
24
<PAGE> 58
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing the copy of this Confirmation enclosed for the purpose
and returning it to us by facsimile transmission to the Attention of: Equity
Derivatives Documentation Department (Telecopier No. (212) 428-1980/1983).
Very truly yours,
GOLDMAN, SACHS & CO.
By:
--------------------------
Name:
Title:
Confirmed as of the date first above written:
- ----------------
By:
--------------------------
Name:
Title:
25
<PAGE> 59
Exhibit 3.14
Ref:
Date: February 10, 2000
To: TRW Inc. ("Counterparty")
Attention: Ronald P. Vargo, Vice President and Treasurer
Tel: (216) 291-7500
Fax: (216) 291-7831
From: Goldman, Sachs & Co ("GS&Co.")
Tel: (212) 902-1981
Fax: (212) 428-1980
- --------------------------------------------------------------------------------
Dear Sir/Madam:
The purpose of this letter agreement (this "Confirmation") is to confirm the
terms and conditions of the above referenced transaction entered into between
Counterparty and GS&Co. on the Trade Date specified below (the "Transaction").
This Confirmation constitutes a "Confirmation" as referred to in the Master
Agreement specified below.
The definitions and provisions contained in the 1991 ISDA Definitions (as
supplemented by the 1998 Supplement, the "Swap Definitions") and in the 1996
ISDA Equity Derivatives Definitions (the "Equity Definitions", and together with
the Swap Definitions, the "Definitions"), in each case as published by the
International Swaps and Derivatives Association, Inc., are incorporated into
this Confirmation. In the event of any inconsistency between the Swap
Definitions and the Equity Definitions, the Equity Definitions will govern. In
the event of any inconsistency between this Confirmation and the Agreement (as
defined below) or the Definitions, the terms of this Confirmation shall govern.
For purposes of the Equity Definitions, this Transaction will be deemed to be a
Physically-settled Share Option Transaction with an Exercise Date equal to the
Valuation Date. For purposes of Section 4.4 of the Equity Definitions, the
Settlement Date will be treated as if it were a Cash Settlement Payment Date.
References to "Option Entitlement" in Section 9.3(b)(i)(A) of the Equity
Definitions shall be deemed to be references to a "Number of Shares". References
to an "option" in Section 9.7 of the Equity Definitions shall be deemed to be
references to a "forward".
1. (a) If GS&Co. and Counterparty are parties to an executed 1992 ISDA
Master Agreement (Multicurrency-Cross Border) (the "Agreement"), this
Confirmation supplements, forms part of, and is subject to, such executed
Agreement. This Confirmation shall be read and construed as one with such
Agreement and all other outstanding Confirmations between GS&Co. and
Counterparty, so that all such Confirmations and such Agreement constitute a
single agreement between GS&Co. and Counterparty.
<PAGE> 60
(b) If GS&Co. and Counterparty are not yet parties to a Agreement, this
Confirmation (and each Confirmation in respect of each previous and
subsequent Transaction between us) shall be deemed to supplement, form
a part of, and be subject to (a) a single, standard form Agreement, as
if such an agreement had been executed by and between GS&Co. and
Counterparty without elections, changes or modifications thereto (other
than as made herein), governed by and construed in accordance with the
law of the State of New York, without reference to choice of law
doctrine, and (b) upon due execution by GS&Co. and Counterparty, and
notwithstanding clause (a) above, the Agreement that sets forth the
general terms and conditions applicable to Transactions between GS&Co.
and Counterparty. In addition, if the Agreement has not been executed
by GS&Co. and Counterparty, this Confirmation will itself evidence a
complete and binding agreement between GS&Co. and Counterparty as to
the terms of this Transaction. This Confirmation, all other
Confirmations between GS&Co. and Counterparty, and the applicable
Agreement shall constitute a single agreement between GS&Co. and
Counterparty. All provisions contained or incorporated by reference in
the Agreement between GS&Co. and Counterparty shall govern this
Transaction except as expressly modified below.
2. The terms of the particular Transaction to which this Confirmation
relates are as follows:
GENERAL TERMS:
- --------------
Trade Date: February 10, 2000
Termination Date: February 10, 2004 (or if not an Exchange
Business Day, the next succeeding
Exchange Business Day).
Seller: Counterparty
Buyer: GS&Co.
Shares: The common stock of RF Micro Devices,
Inc. (Symbol: RFMD)
Issuer: RF Micro Devices, Inc.
Number of Shares: 666,666, subject to adjustment as
provided in "Sale Period" below.
Floor Price: 100.00% of the Agency Execution Price.
Cap Price: 172.75% of the Agency Execution Price.
2
<PAGE> 61
Final Price: The arithmetic mean of the Relevant
Prices of the Shares on each Averaging
Date.
Prepayment Amount: 74.72% of the Agency Execution Price x
the Number of Shares.
Agency Execution Price: The average price per share at which
GS&Co. effects sales of Shares as
described under "Sale Period" below.
Prepayment Date: The third Currency Business Day following
the Last Sale Date (as defined in "Sale
Period" below).
Prepayment: On the Prepayment Date, GS&Co. shall pay
Counterparty the Prepayment Amount in
immediately available funds as payment in
full for the Number of Shares to Be
Delivered. GS&Co. shall have no payment
or delivery obligations pursuant to this
Confirmation other than the payment of
the Prepayment Amount on the Prepayment
Date.
Settlement Currency: USD
Exchange: NASDAQ
Related Exchange: CBOE
SALE PERIOD:
- ------------
Between the Trade Date and the twentieth Exchange Business Day immediately
following the Trade Date (the "Last Sale Date"), GS&Co. will make a good faith
effort to sell the full Number of Shares. Upon the earlier of (i) the sale of
the Number of Shares or (ii) the Last Sale Date, GS&Co. shall provide written
notice to Counterparty of the Agency Execution Price resulting therefrom and the
Prepayment Amount . GS&Co.'s calculations of the Agency Execution Price and the
Prepayment Amount shall be conclusive absent manifest error. If GS&Co. does not
sell the full Number of Shares by the close of the Exchange on the Last Sale
Date, GS&Co. shall promptly give notice to Counterparty that the Number of
Shares shall be reduced to such number as GS&Co. has sold pursuant to this
paragraph.
VALUATION:
- ----------
Valuation Time: At the close of trading in respect of
regular trading hours on the Exchange,
without regard to extended trading hours
on the Exchange, if any.
Valuation Date: The Termination Date
3
<PAGE> 62
Averaging Dates: Each of the five Exchange Business Days
commencing on, and including, February 4,
2004 to and including the Valuation Date.
Averaging Date Market
Disruption: Modified Postponement
SETTLEMENT TERMS: Settlement of this Transaction shall be
----------------- Physical Settlement.
Physical Settlement: On the Settlement Date, Counterparty will
deliver to GS&Co. the Number of Shares to
be Delivered.
Number of Shares
to be Delivered: A number of Shares determined by the
Calculation Agent on the Valuation Date
based on the following formula:
a) if the Final Price is less than the
Floor Price, a number of Shares
equal to:
Number of Shares
b) if the Final Price is less than or
equal to the Cap Price but greater
than or equal to the Floor Price, a
number of Shares equal to:
Floor Price x Number of Shares
-----------
Final Price
and
c) if the Final Price is greater than
the Cap Price, a number of Shares
equal to:
<TABLE>
<S> <C>
Final Price-(Cap Price-Floor Price)
-----------------------------------X Number of Shares
Final Price
</TABLE>
Settlement Date: Three (3) Exchange Business Days
after the Valuation Date.
Failure to Deliver: Inapplicable
Delivery of Number
of Shares to be Delivered: On the Settlement Date, Counterparty
shall satisfy its delivery
obligation by delivering to GS&Co.
the number of Pledged Shares (or
other Shares acceptable to GS&Co.)
equal to the Number of the Shares to
be Delivered.
4
<PAGE> 63
ADJUSTMENTS:
- ------------
Method of Adjustment: In the event of the occurrence of a
Potential Adjustment Event, the
Calculation Agent will determine
whether such Potential Adjustment
Event has a diluting or
concentrative effect on the
theoretical value of the Shares and,
if so, will (i) make the
corresponding adjustment(s), if any,
to the Number of Shares, the Floor
Price and the Cap Price and, in any
case, any other variable relevant to
the settlement or payment terms of
this Transaction as the Calculation
Agent determines appropriate to
account for that diluting or
concentrative effect and (ii)
determine the effective date(s) of
the adjustment(s). For the avoidance
of doubt, in connection with the
adjustments made pursuant to the
preceding sentence, if as a result
of a Potential Adjustment Event
existing holders of Shares receive a
distribution or dividend of
securities (other than Shares) that
are Marketable Securities (the
"Additional Shares"), then the term
"Shares" will mean a basket of
Shares composed of the original
Shares and the Additional Shares and
this Transaction will become a Share
Basket Transaction.
"Marketable Securities" means equity
securities that are publicly traded
on a United States national
securities exchange or quoted on the
Nasdaq National Market.
Dividend Adjustment: If the Shares are subject to a cash
dividend in excess of the Regular
Dividend, then on the ex-dividend
date for the payment of each such
dividend the Calculation Agent will
reduce the Floor Price and the Cap
Price by the amount per Share of
each such dividend in excess of the
Regular Dividend. For the avoidance
of doubt, if as a result of any
Merger Event or Potential Adjustment
Event (or any combination thereof)
the Shares are adjusted to include
the Shares of an issuer other than
the initial Issuer or of more than
one issuer (whether or not including
the initial Issuer), then such
adjustment shall apply with respect
to any cash dividends to which the
successor or additional Shares of
the applicable issuer(s) are
subject. "Regular Dividend" means
$0.00 per share per quarter.
EXTRAORDINARY EVENTS:
- ---------------------
Consequences of Merger Event:
5
<PAGE> 64
(a) Share-for-Share: Cancellation and Payment: provided,
however, if the New Shares are
Marketable Securities, Alternative
Obligation shall apply.
(b) Share-for-Other: Cancellation and Payment.
(c) Share-for-Combined: Cancellation and Payment; provided,
however, if any portion of the
consideration for the relevant
shares consists of Marketable
Securities (the "Marketable
Securities Consideration"),
Alternative Obligation shall apply
to that portion of the Transaction
corresponding to the Marketable
Securities Consideration.
Notwithstanding anything to the
contrary in the Equity Definitions,
the amount payable under this
Transaction upon the occurrence of a
Merger Event, Nationalization or
Insolvency shall be calculated by
the Calculation Agent in good faith
in accordance with Section 9.7 of
the Equity Definitions using, among
other things, the factors identified
in subparagraphs (i), (ii) and (iii)
therein, but without the requirement
of soliciting dealer quotations
therefor.
Notwithstanding Section 9.2(b) of
the Equity Definitions, "Merger
Date" means the date of closing of
the Merger Event.
In connection with a Share-for-Share or Share-for-Combined Merger Event in (a)
or (c) above, then to the extent the consequence of any Merger Event is
Alternative Obligation, in addition to any other adjustments in respect of the
Merger Event, the Calculation Agent will adjust the Floor Price and the Cap
Price as follows (which adjustments, together with the other adjustments in
respect of the Merger Event are intended to preserve the economic equivalent
value of this Transaction to the parties):
(i) as of the Exchange Business Day immediately prior to the Announcement Date,
the Calculation Agent will determine an amount (in USD) equal to the change in
market value in this Transaction resulting from the substitution of Marketable
Securities for the Shares; and
(ii) on the Merger Date, the Calculation Agent will adjust the Floor Price and
the Cap Price by the amounts necessary, given the then remaining life of this
Transaction, to achieve the change in market value determined under clause (i).
The Calculation Agent will make its determination under clause (i) using a
Transaction maturity from the Exchange Business Day immediately prior to the
Announcement Date to the Termination Date and will base its determination on the
difference (positive or negative) between
6
<PAGE> 65
the Shares and the Marketable Securities with respect to Volatility, Dividend
Paid and Stock Loan Rate. For this purpose,"Volatility" and "Stock Loan Rate"
mean, respectively, the volatility and stock loan rebate rate agreed to by
Counterparty and the Calculation Agent, and "Dividend Paid" means the amount
determined by the Calculation Agent to have been the ordinary cash dividend
amount paid per the relevant share in the calendar year ending on the
Announcement Date (and, in the case of Marketable Securities, shall be zero if
the Marketable Securities did not exist prior to the Merger Event). If the
parties cannot agree on a Volatility or Stock Loan Rate for the Shares or
Marketable Securities prior to the Merger Date, the Calculation Agent will
determine the relevant amount by obtaining from each of three leading,
independent broker-dealers who actively make markets in transactions similar to
this Transaction a quotation for such amount and taking the arithmetic average
of the three quotations. In obtaining volatility quotations, the Calculation
Agent will ask the quoting dealer to provide the mid-market volatility that the
dealer would have provided for this Transaction if the dealer had been asked to
enter into the then remainder of this Transaction (in the case of a volatility
quotation for Marketable Securities, on Marketable Securities and as otherwise
adjusted for the Merger Event) on the Exchange Business Day immediately prior to
the Announcement Date.
NATIONALIZATION OR
INSOLVENCY: Cancellation & Payment
- -----------
3. CALCULATION AGENT: GS&Co.
4. NON-RELIANCE: Each party represents to the other
party that it is not relying on any
communication (written or oral) of
the other party as investment advice
or as a recommendation to enter into
this Transaction, it being
understood that information and
explanations related to the terms
and conditions of this Transaction
shall not be considered investment
advice or a recommendation to enter
into this Transaction. No
communication (written or oral)
received from the other party shall
be deemed to be an assurance or
guarantee as to the expected results
of this Transaction.
5. GOVERNING LAW: The laws of the State of New York
(without reference to choice of law
doctrine)
6. COLLATERAL: On or prior to Trade Date,
Counterparty will deposit and
thereafter maintain with GS&Co. a
number of Shares equal to the Number
of Shares (such Shares or other
collateral, any distributions
thereon or proceeds thereof and any
substitutions therefor, the "Pledged
Shares" or the "Collateral").
Counterparty represents that (i) it
is the legal, record and beneficial
owner of all Collateral free of all
liens, claims,
7
<PAGE> 66
equities and encumbrances and (ii)
it has the power and has obtained
all of the necessary consents and
approvals to grant a first priority
security interest to GS&Co. in the
Collateral.
The Counterparty hereby grants
GS&Co. a first priority security
interest in, and a first priority
lien on, the Collateral as
collateral for its obligations under
this Transaction and the Agreement.
Upon any default by Counterparty
(including the occurrence of an
Event of Default or Termination
Event under the Agreement), GS&Co.
shall have all of the rights with
respect to the Collateral of a
secured party under the New York
Uniform Commercial Code. GS&Co.
shall not be liable for any loss or
damages occasioned by any sale or
disposal of the Collateral unless
such liability results primarily
from the negligence (as determined
by a final and nonappealable
judgment of a court of competent
jurisdiction) or bad faith of GS&Co.
In the absence of an Event of
Default or a Termination Event or
the occurrence of an event which
with the passage of time could
result in an Event of Default or a
Termination Event, GS&Co. shall pay
over, or cause to be paid over, to
the Counterparty any cash dividends
actually received by GS&Co. on the
Shares (other than any such dividend
which GS&Co. determines in its good
faith discretion was not paid by the
Issuer in the ordinary course of its
business or otherwise constitutes an
"extraordinary" dividend).
Except in the case where the
Collateral has been rehypothecated
by GS&Co., the Counterparty shall be
entitled to exercise any and all
voting and other consensual rights
pertaining to the Collateral or any
part thereof for any purpose not
inconsistent with the terms of this
Transaction.
Counterparty will faithfully
preserve and protect GS&Co.'s
security interest in the Collateral,
will defend GS&Co.'s right, title,
lien and security interest in and to
the Collateral against the claims
and demands of all persons
whomsoever, and will do all such
acts and things and deliver all such
documents and instruments, including
without limitation further pledges,
assignments, financing statements
and continuation statements, as
GS&Co. in its sole discretion
8
<PAGE> 67
may reasonably deem necessary or
advisable from time to time in order
to preserve, protect and perfect
such security interest or to enable
GS&Co. to exercise or enforce its
rights with respect to any
Collateral. Counterparty hereby
irrevocably appoints GS&Co. as
Counterparty's attorney-in-fact for
the purpose of taking any action and
executing any instrument which
GS&Co. may deem necessary or
advisable to preserve, protect and
perfect such security interest or to
enable GS&Co. to exercise or enforce
its rights with respect to any
Collateral.
Counterparty will not permit any
lien, security interest, adverse
claim, restrictions on transfer or
other encumbrance, other than the
lien and security interest
Counterparty created hereby in favor
of GS&Co., to exist upon any of the
Collateral.
Counterparty will not take any
action that could in any way limit
or adversely affect the ability of
GS&Co. to realize upon its rights in
the Collateral.
Notwithstanding any limitation
otherwise imposed by Section
9-207(2)(e) of the New York Uniform
Commercial Code, GS&Co. shall be
entitled to pledge, repledge,
hypothecate, rehypothecate or
further assign (collectively,
"rehypothecate") any Collateral
delivered to GS&Co. by Counterparty
pursuant to this Agreement, subject
to the obligation to return such
Collateral or equivalent Collateral
to Counterparty' PROVIDED, HOWEVER,
that no such rehypothecation may
occur within 14 calendar days of the
Last Sale Date; GS&Co. must use
standard market documentation for
the type of hypothecation involved;
such documentation must provide that
GS&Co. can reacquire the Collateral
upon not less than three business
days' notice; and GS&Co. will
exercise that right upon written
notice from the Counterparty.
7. REPRESENTATIONS AND Counterparty represents and warrants
AGREEMENTS OF to, and agrees with, GS&Co. as
COUNTERPARTY: follows:
Counterparty (a) has such knowledge
and experience in financial and
business affairs as to be capable of
evaluating the merits and risks of
entering into the Transaction; (b)
is an "eligible swap participant" as
defined in the Part 35 Regulations
of the U.S. Commodity Futures
Trading
9
<PAGE> 68
Commission; (c) has consulted with
its own legal, financial, accounting
and tax advisors in connection with
the Transaction; (d) is entering
into the Transaction as principal
(and not as agent or in any other
capacity, fiduciary or otherwise)
for a bona fide business purpose in
conjunction with its line of
business to hedge an existing
position and not for purposes of
speculation; and (e) has determined
that this Transaction is prudent and
appropriate in light of its
organizational documentation,
financial situation and investment
objectives and guidelines and
policies.
As of the date of Counterparty's
most recent Schedule 13D filing with
the Securities and Exchange
Commission, Counterparty was the
beneficial owner (as defined in Rule
13d-3 under the Securities Exchange
Act of 1934, as amended (the
"Exchange Act")) of 15.7% of the
outstanding shares of the Issuer.
Counterparty is currently, and in
the past has been, in compliance
with its reporting obligations under
Section 13(d) of the Exchange Act. A
list of all such Schedule 13D
filings is attached as Annex A and
copies of all such filings have been
provided to GS&Co. Counterparty will
provide GS&Co. a draft of the
amendment to its Schedule 13D which
describes the Transaction and will
give GS&Co. a reasonable opportunity
to comment on the draft. An
amendment to the Schedule 13D will
be promptly filed by the
Counterparty with the Securities and
Exchange Commission. Counterparty
will comply with its obligations in
Section 14(i) of the Confirmation in
connection with future filings under
Section 13(d) of the Exchange Act
made on or after the date of this
Confirmation.
Neither Counterparty nor any of its
Affiliates is in possession of any
non-public material information
regarding the Issuer; and, during
the period that GS&Co. effects sales
of Shares pursuant to Section 2
hereof, Counterparty will notify by
telephone Alexandra Antoniadis
(Telephone: (212) 902-9509) promptly
upon coming into possession of any
such material non-public information
(such telephonic notice to be
promptly confirmed in writing). In
the event that Counterparty so
notifies such personnel of GS&Co.
during the Sale Period, GS&Co. will
as promptly as practicable
discontinue the sale of the Shares,
and the Number of Shares will be
10
<PAGE> 69
reduced to such number as GS&Co. has
sold prior to its discontinuing such
sales and the date such sales are
discontinued will be the Last Sale
Date.
Counterparty and its affiliates have
not sold, or contracted to sell, any
Shares (or any other security or
instrument that will be subject to
aggregation under Rule 144(e)) or
any beneficial interest therein
during the three-month period and
have not sold or purchased, or
contracted to sell or purchase, any
Shares (or any other security or
derivative security that would be
subject to reporting under Section
16 of the Exchange Act) or any
beneficial interest therein during
the six-month period ending on the
date of this Confirmation, except as
reported on Counterparty's Form 144
and Form 4 and Form 5 filings with
the SEC or as otherwise listed on
Annex A. Counterparty shall comply
with the reporting and other
requirements of Section 16 of the
Exchange Act and the rules and
regulations promulgated thereunder.
The Pledged Shares are not subject
to any restrictions on transfer
other than those arising under
federal or state securities laws. No
Pledged Shares are entitled to the
benefits of any registration rights
agreement or similar agreement
except pursuant to the agreement
identified in Annex B hereto (the
"Registration Rights Agreement").
Within the last month, Counterparty
has not offered any Shares through
any prospectus or other offering
document. During the Sale Period,
Counterparty will not exercise any
of its rights under the Registration
Rights Agreement in respect of any
Shares or permit any Shares to be
included in a registered offering
without GS&Co.'s prior written
consent. Assuming that the terms of
the Transaction are consistent with
the terms of a "Contract" as
described in Section I.A. of the
Goldman, Sachs & Co. (December 20,
1999) interpretive letter (the
"Interpretive Letter"), and based on
the representation of GS&Co. below,
the Shares to be delivered on
Physical Settlement shall be freely
transferable to the public without
any restrictions whatsoever.
Counterparty will not take any
action so as to cause the terms of
the Transaction not to comply with
Section I.A. of the Interpretive
Letter. Counterparty has furnished
GS&Co. with copies of all
agreements, contracts or instruments
that relate to the Pledged Shares.
11
<PAGE> 70
The Pledged Shares are transferable
by the Counterparty to the public
pursuant to Rule 144 under the
Securities Act. Counterparty
acknowledges and agrees that (i)
assuming that the terms of the
Transaction are consistent with the
terms of a "Contract" as described
in Section I.A. of the Interpretive
Letter, and based on the
representation of GS&Co. below, the
entering into of this Confirmation
will constitute a "sale" of the
Pledged Shares for purposes of Rule
144, (ii) Counterparty has not taken
and will not take any action that
would cause such sale to exceed the
volume limitation of Rule 144(e),
(iii) Counterparty has not taken and
will not take any action that could
cause the sale pursuant to this
Confirmation not to comply with Rule
144, (iv) Counterparty will transmit
a Form 144 for filing with the
Securities and Exchange Commission
simultaneously with the execution of
this Confirmation and such Form 144
shall be in a form reasonably
acceptable to GS&Co., (v)
Counterparty will deliver a
representation letter to GS&Co. in a
form customarily used by GS&Co.
simultaneous with the execution of
this Confirmation and each
representation, warranty and
agreement in such representation
letter shall be deemed to be
incorporated into this Confirmation
and (vi) upon the Last Sale Date,
Counterparty agrees to transmit for
filing with the Securities and
Exchange Commission an amendment to
the previously filed Form 144 in a
form reasonably acceptable to GS&Co.
Counterparty is not and has not been
the subject of any civil proceeding
of a judicial or administrative body
of competent jurisdiction that could
reasonably be expected to impair
Counterparty's ability to perform
its obligations hereunder.
Within three Business Days after any
financial officer of Counterparty
obtains knowledge of an Event of
Default or the occurrence of any
event that with the giving of
notice, the lapse of time or both
would be such an Event of Default,
Counterparty will immediately notify
GS&Co. of the occurrence of such
Event of Default.
Counterparty has filed or caused to
be filed all material tax returns
that are required to be filed by
Counterparty and has paid all
material taxes shown to be due and
payable on said returns or on any
assessment made against Counterparty
or any of Counterparty's property
and all other material taxes,
12
<PAGE> 71
assessments, fees, liabilities or
other charges imposed on
Counterparty or any of
Counterparty's property by any
governmental authority.
Counterparty was not or will not be
insolvent at the time this
Transaction is consummated, and was
not or will not be rendered
insolvent or will not be insolvent
as a result thereof. Counterparty
has not engaged and will not engage
in any business or transaction with
GS&Co. after which the property
remaining with Counterparty was or
will be unreasonably small in
relation to its business. At the
time of any transfer to or for the
benefit of GS&Co., Counterparty did
not intend or will not intend to
incur, and did not incur or will not
incur, debts that were beyond the
ability of Counterparty to pay as
they mature.
GS&Co. hereby represents and
warrants to, and agrees with,
Counterparty that the sale of Shares
by GS&Co. during the Sale Period
will comply with the manner of sale
requirements of Rule 144(f) and (g).
8. ACKNOWLEDGMENTS: The parties hereto intend for:
(i) This Transaction to be a
"securities contract" as defined in
Section 741(7) of the Bankruptcy
Code (Title 11 of the United States
Code) (the "Bankruptcy Code"),
qualifying for protection under
Section 555 of the Bankruptcy Code;
(ii) A party's right to liquidate
this Transaction and to exercise any
other remedies upon the occurrence
of any Event of Default under the
Agreement with respect to the other
party to constitute a "contractual
right" as defined in the Bankruptcy
Code.
(iii) Any cash, securities or other
property provided as performance
assurance, credit support or
collateral with respect to this
Transaction to constitute "margin
payments" as defined in the
Bankruptcy Code.
(iv) All payments for, under or in
connection with this Transaction,
all payments for the Shares and the
transfer of such Shares to
constitute "settlement payments" as
defined in the Bankruptcy Code.
9. INDEMNIFICATION: Counterparty agrees to indemnify and
hold harmless
13
<PAGE> 72
GS&Co., its Affiliates and its
assignees and their respective
directors, officers, employees,
agents and controlling persons
(GS&Co. and each such person being
an "Indemnified Party") from and
against any and all losses, claims,
damages and liabilities, joint or
several, to which such Indemnified
Party may become subject, and
relating to or arising out of any of
the transactions contemplated by
this Confirmation, and will
reimburse any Indemnified Party for
all expenses (including reasonable
counsel fees and expenses) as they
are incurred in connection with the
investigation of, preparation for or
defense or settlement of any pending
or threatened claim or any action,
suit or proceeding arising
therefrom, whether or not such
Indemnified Party is a party and
whether or not such claim, action,
suit or proceeding is initiated or
brought by or on behalf of
Counterparty. Counterparty will not
be liable under the foregoing
indemnification provision to the
extent that any loss, claim, damage,
liability or expense results
primarily from the negligence (as
determined by a final and
nonappealable judgment of a court of
competent jurisdiction) or bad faith
of GS&Co. If for any reason the
foregoing indemnification is
unavailable to any Indemnified Party
or insufficient to hold harmless any
Indemnified Party, then Counterparty
shall contribute, to the maximum
extent permitted by law, to the
amount paid or payable by the
Indemnified Party as a result of
such loss, claim, damage or
liability. Counterparty also agrees
that no Indemnified Party shall have
any liability to Counterparty or any
person asserting claims on behalf of
or in right of Counterparty in
connection with or as a result of
any matter referred to in this
Confirmation or the Agreement except
to the extent that any losses,
claims, damages, liabilities or
expenses incurred by Counterparty
result primarily from the negligence
(as determined by a final and
nonappealable judgment of a court of
competent jurisdiction) or bad faith
of the Indemnified Party. The
provisions of this Section 9 shall
survive completion of the
Transaction contemplated by this
Confirmation and any assignment and
delegation pursuant to Section 14(a)
of this Confirmation.
10. TERMINATION PROVISIONS:
(a) Sections 5(a)(v), 5(a)(vi),
5(a)(vii), 5(a)(viii), and 5(b)(iv)
shall not apply to GS&Co.
14
<PAGE> 73
(b) "SPECIFIED TRANSACTION" will
have the meaning specified in
Section 14 of the Agreement, except
that it will also include any
forward transactions in securities
and any margin loan or extension of
credit by GS&Co. to Counterparty.
(c) (i) The "CROSS DEFAULT"
provisions of Section 5(a)(vi) of
the Agreement as amended will apply
to Counterparty; and Section
5(a)(vi) of the Agreement is hereby
amended by deleting in the seventh
line thereof the words ", or
becoming capable at such time of
being declared,".
(ii) "SPECIFIED INDEBTEDNESS"
will have the meaning specified in
Section 14 of the Agreement, except
as excluded in the proviso to this
definition, and shall include for
the avoidance of doubt, all
reimbursement obligations in respect
of letters of credit or financial
guaranty insurance or surety bonds
issued for the account of that
person; provided however, that
obligations in respect of interbank
deposits received by GS&Co. shall
not constitute Specified
Indebtedness for the purposes of
clause (2) of Section 5(a)(vi) of
the Agreement to the extent they are
not paid when due only as the result
of inadvertence or administrative
error.
(iii) "THRESHOLD AMOUNT" means
U.S. $100,000,000 or its equivalent
in another currency.
(d) Each of Section 5(a)(vii)(4)(B)
and Section 5(a)(vii)(7) of the
Agreement is hereby amended by
deleting the number "30" and
replacing it with the number "90".
(e) Section 5(a)(viii) of the
Agreement is hereby amended by
deleting the introductory paragraph
in its entirety and replacing it
with the following:
"The party consolidates or
amalgamates with, or merges with or
into, or transfers all or
substantially all its assets to, or
reorganizes, incorporates,
reincorporates, or reconstitutes
into or as, another entity and, at
the time of such consolidation,
amalgamation, merger, transfer,
reorganization, incorporation,
reincorporation or reconstitution."
15
<PAGE> 74
(f) Section 5(b)(iv) of the
Agreement is hereby amended by: (i)
deleting in the fourth line thereof
the words "another entity" and
replacing them with the words "or
reorganizes, incorporates,
reincorporates, reconstitutes, or
reforms into or as, or receives all
or substantially all of the assets
and/or liabilities or obligations
of, another entity or X, such
Specified Entity effects a
recapitalization, liquidating
dividend, leveraged buy-out, other
similar highly-leveraged
transaction, redemption of
indebtedness, or stock buy-back or
similar call on equity"; (ii)
deleting in the fifth line thereof
the words "the resulting, surviving
or transferee" and replacing them
with the words "X, such Specified
Entity or any resulting, surviving,
transferee, reorganized,
reconstituted, reformed, or
recapitalized"; and (iii) deleting
in the seventh line thereof the
words "its successor or transferee"
and replacing them with the words
"any resulting, surviving,
transferee, reorganized,
reconstituted, reformed or
recapitalized entity".
(g) The "CREDIT EVENT UPON MERGER"
provisions of Section 5(b)(iv) as
amended above will apply to
Counterparty. Notwithstanding
Section 5(b)(iv) of the Agreement,
"Credit Event Upon Merger" means
that a Designated Event (as defined
below) occurs with respect to a
party and such action does not
constitute an event described in
Section 5(a)(viii) of the Agreement
but, after the occurrence of the
Designated Event, the successor,
surviving or transferee entity
(which will be the Affected Party)
has a credit rating of BB+ from
Standard & Poor's Ratings Group or
Ba1 from Moody's Investors Service
Corporation or a lower rating from
either such rating agency. For the
purposes hereof, a "Designated
Event" means, with respect to a
party, that after the Trade Date of
a Transaction:
(i) the party consolidates or
amalgamates with, or merges with or
into, or transfers all or
substantially all its assets (or any
substantial part of the assets
comprising the business conducted by
that party as of the Trade Date of
that Transaction) to, or receives
all or substantially all the assets
and obligations of, another entity;
(ii) any person as defined for
purposes of Section 13(d) under the
Securities Exchange Act of 1934, as
amended as of the Trade Date (the
"Exchange Act"), or entity or group
(as defined for purposes of Section
13(d) under the Exchange
16
<PAGE> 75
Act) acquires directly or indirectly
the beneficial ownership (as defined
for purposes of Section 13(d) under
the Exchange Act) of equity
securities having the power to elect
a majority of the board of directors
of the party; or
(iii) the party enters into any
agreement providing for any of the
foregoing.
(h) The "AUTOMATIC EARLY
TERMINATION" provision of Section
6(a) will not apply to GS&Co. and
will apply to Counterparty.
(i) PAYMENTS ON EARLY TERMINATION.
For the purpose of Section 6(e):
(i) Loss will apply.
(ii) The Second Method will apply.
(j) "TERMINATION CURRENCY" means
United States Dollars.
11. TAX REPRESENTATIONS.
(a) PAYER REPRESENTATIONS. For
purposes of Section 3(e) of the
Agreement, GS&Co. and Counterparty
each make the following
representation:
It is not required by any applicable
law, as modified by the practice of
any relevant governmental revenue
authority, of any Relevant
Jurisdiction to make any deduction
or withholding for or on account of
any Tax from any payment (other than
interest under Section 2(e),
6(d)(ii) or 6(e) of the Agreement)
to be made by it to the other party
under the Agreement. In making this
representation, it may rely on (i)
the accuracy of any representations
made by the other party pursuant to
Section 3(f) of the Agreement, (ii)
the satisfaction of the agreement
contained in Section 4(a)(i) or
4(a)(iii) of the Agreement and the
accuracy and effectiveness of any
document provided by the other party
pursuant to Section 4(a)(i) or
4(a)(iii) of the Agreement, and
(iii) the satisfaction of the
agreement of the other party
contained in Section 4(d) of the
Agreement, provided that it shall
not be a breach of this
representation where reliance is
placed on Clause (ii) and the other
party does not deliver a form or
17
<PAGE> 76
document under Section 4(a)(iii) by
reason of material prejudice to its
legal or commercial position.
(b) PAYEE REPRESENTATIONS. For the
purpose of Section 3(f) of the
Agreement;
Counterparty represents that is a
corporation organized under the laws
of the State of Ohio and it is not a
foreign person for United States
federal income tax purposes.
GS&Co. represents that it is a
limited partnership organized under
the laws of the State of New York
and it is not a foreign person for
United States federal income tax
purposes.
12. AGREEMENT TO DELIVER DOCUMENTS.
For the purpose of Section 4(a), each party agrees to deliver the following
documents, as applicable:
(a) Tax forms, documents, or certificates to be delivered are:
None
(b) Other documents to be delivered are:
<TABLE>
<CAPTION>
COVERED BY
PARTY REQUIRED TO DATE BY WHICH SECTION 3(d)
DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE TO BE DELIVERED REPRESENTATION
---------------- ------------------------- --------------- --------------
<S> <C> <C> <C>
Counterparty Certified incumbency certificate or At execution of this Yes
other evidence of authority and Agreement
specimen signatures with respect to
Counterparty and its signatories
Counterparty Annual Financial Statement of Within 90 days of the Yes
Counterparty last day of each
calendar
year, with
respect to
financial
statements
relating to
such
calendar
year.
Counterparty Interim Financial Statement of Promptly following
Counterparty demand by Party A
</TABLE>
18
<PAGE> 77
<TABLE>
<CAPTION>
COVERED BY
PARTY REQUIRED TO DATE BY WHICH SECTION 3(d)
DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE TO BE DELIVERED REPRESENTATION
---------------- ------------------------- --------------- --------------
<S> <C> <C> <C>
Counterparty Evidence reasonably satisfactory to At execution of this Yes
and GS&Co. the other party of the signing Agreement and
authority and specimen signature of thereafter on request
any individual executing this
Agreement, any Credit Support
Document and any Confirmation on
its behalf
</TABLE>
13. MISCELLANEOUS.
(a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a):
Address for notices or communications to GS&Co.:
Address: 85 Broad Street
New York, New York 10004, U.S.A.
Attention: Alexandra Antoniadis
Telex No.: 12-5654
Answerback: GOLSAX
Facsimile No.: 212-902-2065
Telephone No.: 212-902-9509
Electronic Messaging
System Details: None.
With a copy to:
Address: 85 Broad Street
New York, New York 10004, U.S.A.
Attention: Treasury Administration
Telex No.: 421344
Answerback: GOLSAX
Facsimile No.: 212-902-3325
Telephone No.: 212-902-1000
Electronic Message
System Details: None.
19
<PAGE> 78
Address for notices or communications to Counterparty:
Address: 1900 Richmond Road
Lyndhurst, Ohio 44124, U.S.A.
Attention: Ronald P. Vargo
Cc: Secretary
Telex No.: None
Answerback: None
Facsimile No.: (216) 291-7831
Telephone No.: (216) 291-7500
Electronic Message
System Details: None.
(b) OFFICES; MULTIBRANCH PARTIES.
(i) The provisions of Section 10(a) will be applicable.
(ii) For the purpose of Section 10(c):
GS&Co. is not a Multibranch Party.
Counterparty is not a Multibranch Party.
(c) JURISDICTION. Section 13(b) of the Agreement is hereby amended by:
(i) deleting in the second line of Subparagraph (i) thereof the word "non"; and
(ii) deleting the final paragraph thereof.
(d) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) of the
Agreement will not apply to Transactions.
(e) "WAIVER OF JURY TRIAL". To the extent permitted by applicable law,
each party irrevocably waives any and all right to trial by jury in any legal
proceeding in connection with the Agreement or any Transaction.
(f) PROCESS AGENT. For the purpose of Section 13(c):
GS&Co. appoints as its Process Agent: None
Counterparty appoints as its Process Agent in the Borough of Manhattan in New
York City:
Name: CT Corporation System
20
<PAGE> 79
Address: 111 Eighth Avenue
Telex No.: None Answerback: None
Facsimile No.: None
Telephone No.: (212) 894-8440
(g) "Annual Financial Statements" means a certified balance sheet and
income statement of such party's assets, liabilities and results of operations,
certified by a public accountant of national recognition and reputation and
prepared in accordance with accounting principles that are generally accepted in
the United States of America, as of the end of the most recent fiscal year.
(h) "Interim Financial Statements" means a balance sheet and income
statement setting forth such party's assets, liabilities and results of
operations in accordance with Regulation S-X.
21
<PAGE> 80
14. OTHER PROVISIONS.
(a) TRANSFER. Section 7 of the Agreement is replaced in its entirety by
the following:
GS&Co. may assign its rights and delegate its obligations under any Transaction,
in whole or in part, to any affiliate (an "Assignee") of GS&Co. effective (the
"Affiliate Effective Date") upon delivery to Counterparty of an executed
acceptance and assumption by the Assignee (an "Assumption") of the transferred
obligations of GS&Co. under the Transaction (the "Transferred GS&Co.
Obligations") and GS&Co. may assign its rights and delegate its obligations
under any Transaction, in whole or in part, to a third party that has a long-
term, unsubordinated debt rating of A- as rated by Standard & Poor's Ratings
Group and A3 as rated by Moody's Investor Services Corporation effective (the
"Third Party Effective Date") upon delivery to Counterparty of an executed
Assumption by the third party of the Transferred GS&Co. Obligations under the
Transaction. On the Affiliate Party Effective Date or the Third Party Effective
Date, GS&Co. shall be released from all obligations and liabilities arising
under or with respect to the Transferred GS&Co. Obligations, except GS&Co. will
retain its rights under Section 9 of this Confirmation.
With the prior written consent of GS&Co., which shall not be unreasonably
withheld, Counterparty may assign its rights and delegate its obligations under
any Transaction, in whole or in multiples of not less than 100,000 Shares, to a
third party effective upon delivery to GS&Co. of an Assumption of the
transferred obligations of Counterparty under the Transaction ("the Transferred
Counterparty Obligations"), provided that such third party (i) is not an
"affiliate" (as used for purposes of Section 2(a)(11) of the Securities Act) of
the Issuer and delivers to GS&Co. evidence reasonably satisfactory to it to
evidence this fact, (ii) delivers to GS&Co. a number of Shares equal to the
product of (a) a fraction, the numerator of which is the maximum number of
Shares subject to the Transferred Counterparty Obligations and the denominator
is the Number of Shares and (b) the Number of Shares, as Collateral for its
obligations, which Shares shall be freely transferable to the public without any
restrictions on transfer whatsoever, and grants to GS&Co. a first priority
security interest in, and a first priority lien on, the Collateral and (iii)
makes the same representations, warranties, covenants and agreements as
Counterparty in this Confirmation, except those that relate to Rule 144 of the
Securities Act, and those that relate to Sections 13 and 16 of the Exchange Act
to the extent that such third party is (and remains) not subject to the
reporting obligations under those Sections. Upon delivery to GS&Co. of an
executed Assumption by the third party of the Transferred Counterparty
Obligations under the Transaction, Counterparty shall be released from all
obligations and liabilities arising under or with respect to the Transferred
Counterparty Obligations, except Section 9 shall continue to apply as between
Counterparty and GS&Co.
(b) SEVERABILITY. If any term, provision, covenant, or condition of
this Confirmation, or the application thereof to any party or circumstance,
shall be held to be invalid or unenforceable (in whole or in part) for any
reason, the remaining terms, provisions, covenants, and conditions hereof shall
continue in full force and effect as if this Confirmation had been executed with
the invalid or unenforceable portion eliminated, so long as this Confirmation as
so modified continues to express, without material change, the original
intentions of the parties as to the subject matter of this Confirmation and the
deletion of such portion of this Confirmation will
22
<PAGE> 81
not substantially impair the respective benefits or expectations of the parties
to this Confirmation ; provided, however, that this severability provision shall
not be applicable if any provision of Section 2, 5, 6, or 13 of the Agreement
(or any definition or provision in Section 14 to the extent it relates to, or is
used in or in connection with any such Section) shall be so held to be invalid
or unenforceable.
(c) BINDING EFFECT. This Confirmation shall bind and inure to the
benefit of GS&Co. and Counterparty and their respective heirs, distributees,
executors, personal representatives and administrators and permitted successors
and assigns."
(d) DEFINITIONS. The definition of "law" in Section 14 of this
Agreement is hereby amended by the insertion of the words "either generally or
with respect to a party to this agreement" after the phrase "any relevant
governmental revenue authority" and the addition of the words "Change in Tax
Law," before the word "lawful" in the second line. For the purposes of this
Agreement, "Contractual Currency" means United States Dollars.
(e) DEALINGS IN THE SHARES. Counterparty hereby acknowledges and agrees
that GS&Co. and its Affiliates may engage in proprietary trading for their
accounts in the Shares (and related securities) and that such trading may affect
the value of the Shares and the amounts payable hereunder.
(f) DEFAULT UNDER SPECIFIED TRANSACTIONS. Section 5(a)(v)(2) of the
Agreement is hereby amended by replacing the words "the last" with the word
"any".
(g) CONDITIONS PRECEDENT. The condition precedent set forth in clause
(1) of Section 2(a)(iii) of the Agreement shall not apply to payments scheduled
to be made by Counterparty to GS&Co. under this Confirmation.
(h) CONFIDENTIALITY. Each party considers its participation in each and
any Transaction and the details thereof (collectively, the "Information") to
constitute confidential and valuable business information. Accordingly, each
party agrees to keep the Information strictly confidential and not to disclose
it (or any portion thereof) to any third party except (i) with the prior written
consent of the other party or (ii) pursuant to the demand, request or
requirement of any law, court, regulatory or self-regulatory agency having
jurisdiction over a party or pursuant to Rule 144 under the Securities Act or
Section 13(d) of the Exchange Act. In such a case, Counterparty will notify
GS&Co. reasonably in advance of any requirement or pending request for the
disclosure of any Information and prior to the disclosure shall take all such
actions reasonably requested by GS&Co. to preserve the confidentiality of such
Information.
(i) GROSS UP. The third line of Section 2(d)(i) of the Agreement is
hereby amended by the insertion before the phrase "of any relevant governmental
revenue authority" of the words ", application or official interpretation" and
the insertion of the words "(either generally or with respect to a party to this
Agreement)" after such phrase.
(j) MAINTAIN AUTHORIZATIONS. Section 4(b) of the Agreement is hereby
amended by deleting the words "use all reasonable efforts to" from the first and
third lines thereof.
23
<PAGE> 82
(k) REPRESENTATIONS.
(i) Section 3(a)(iii) of the Agreement is hereby amended by
inserting the word "material" between the words "any" and "contractual" in the
third line thereof.
(ii) Section 3(c) of the Agreement is hereby amended by
deleting the words "or any of its affiliates" from the first and second lines
thereof.
24
<PAGE> 83
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing the copy of this Confirmation enclosed for the purpose
and returning it to us by facsimile transmission to the Attention of: Equity
Derivatives Documentation Department (Telecopier No. (212) 428-1980/1983).
Very truly yours,
GOLDMAN, SACHS & CO.
By:
------------------------
Name:
Title:
Confirmed as of the date first above written:
- ----------------
By:
------------------------
Name:
Title:
25
