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Exhibit 10.3
EXECUTION COPY
GOLDMAN SACHS & CO. -- 85 BROAD STREET
-- NEW YORK, NEW YORK 10004 -- TEL: 212-902-1000
Opening
Transaction
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To:
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PG&E
Corporation
One Market Spear Tower
Suite 2400
San Francisco, CA 94105
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From:
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Goldman, Sachs & Co.
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Subject:
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Accelerated Share Repurchase Transaction—VWAP Pricing
(Non-Collared)
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Ref. No:
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EN41JA000000000
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Date:
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December 15, 2004
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This
master confirmation ("Master Confirmation") dated as of
December 15, 2004, is intended to supplement the terms and
provisions of certain Transactions (each, a "Transaction") entered
into from time to time between Goldman, Sachs & Co.
("GS&Co.") and PG&E Corporation ("Counterparty"). This
Master Confirmation, taken alone, is neither a commitment by either
party to enter into any Transaction nor evidence of a Transaction.
The terms of any particular Transaction shall be set forth in a
Supplemental Confirmation in the form of Annex A, which references
this Master Confirmation, in which event the terms and provisions
of this Master Confirmation shall be deemed to be incorporated into
and made a part of each such Supplemental Confirmation. This Master
Confirmation and each Supplemental Confirmation together shall
constitute a "Confirmation" as referred to in the Agreement
specified below.
The
definitions and provisions contained in the 2002 ISDA Equity
Derivatives Definitions (the "Equity Definitions"), as published by
the International Swaps and Derivatives Association, Inc., are
incorporated into this Master Confirmation. This Master
Confirmation and each Supplemental Confirmation evidences a
complete binding agreement between the Counterparty and GS&Co.
as to the terms of each Transaction to which this Master
Confirmation and the related Supplemental Confirmation
relates.
This
Master Confirmation and each Supplemental Confirmation, together
with all other documents referring to the 1992 ISDA Master
Agreement (Multicurrency-Cross Border) (the "ISDA Form" or the
"Agreement), confirming Transactions entered into between
GS&Co. and Counterparty, shall supplement, form a part of,
and be subject to the ISDA Form as if GS&Co. and Counterparty
had executed the Agreement (but without any Schedule) except that
the following elections and modifications shall be made:
(i) the election of Loss and Second Method, New York law
(without regard to conflicts of law principles) as the governing
law and US Dollars ("USD") as the Termination Currency,
(ii) the election that subparagraph (ii) of
Section 2(c) will not apply to Transactions, (iii) the
replacement of the word "third" in the last line of
Section 5(a)(i) with the word "first", (iv) the
election that the "Cross Default" provisions of
Section 5(a)(vi) shall apply to Counterparty, with a
"Threshold Amount" of USD 75 million) and (v) the
replacement of clause (1) in Section 6(d)(i) with
the clause "(1) showing in reasonable detail such calculations and
specifying any amount payable under Section 6(e) (including,
without limitation, providing all relevant quotations and
assumptions and specifying the methodologies used in sufficient
detail so as to enable the other party to replicate the
calculation)". Further, for purposes of determining whether an
Event of Default pursuant to Section 5(a)(vi) of the
Agreement has occurred, notwithstanding anything to the contrary
stated in that
provision, clause (1) of
Section 5(a)(vi) will apply only to Specified
Indebtedness that is actually declared to be due and payable before
it would otherwise be due and payable under the relevant agreement
or instrument, and not to Specified Indebtedness that is merely
"capable at such time of being declared" so due and
payable.
All
provisions contained in the Agreement shall govern this Master
Confirmation and the related Supplemental Confirmation relating to
a Transaction except as expressly modified herein or in the related
Supplemental Confirmation. With respect to any relevant
Transaction, the Agreement, this Master Confirmation and the
related Supplemental Confirmation shall represent the entire
agreement and understanding of the parties with respect to the
subject matter and terms of such Transaction and shall supersede
all prior or contemporaneous written or oral communications with
respect thereto.
If,
in relation to any Transaction to which this Master Confirmation
and related Supplemental Confirmation relate, there is any
inconsistency between the Agreement, this Master Confirmation, any
Supplemental Confirmation and the Equity Definitions that are
incorporated into this Master Confirmation or any Supplemental
Confirmation, the following will prevail for purposes of such
Transaction in the order of precedence indicated: (i) such
Supplemental Confirmation; (ii) this Master Confirmation;
(iii) the Agreement; and (iv) the Equity
Definitions.
1. Each
Transaction constitutes a Share Forward Transaction for the
purposes of the Equity Definitions. Set forth below are the terms
and conditions which, together with the terms and conditions set
forth in each Supplemental Confirmation (in respect of each
relevant Transaction), shall govern each such
Transaction.
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General
Terms:
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Trade Date:
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For each Transaction, as set forth in the Supplemental
Confirmation.
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Seller:
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Counterparty
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Buyer:
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GS&Co.
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Shares:
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Common Stock of PG&E Corp. (Ticker: PCG)
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Number of Shares:
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For each Transaction, as set forth in the Supplemental
Confirmation.
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Forward Price:
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For each Transaction, as set forth in the Supplemental
Confirmation.
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Prepayment:
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Not Applicable
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Variable Obligation:
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Not Applicable
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Exchange:
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New York Stock Exchange
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Related Exchange(s):
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All Exchanges
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Market Disruption Event:
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The definition of "Market Disruption Event" in Section 6.3(a) of
the Equity Definitions is hereby amended by inserting the words "at
any time on any Scheduled Trading Day during the Valuation Period
or" after the word "material," in the third line
thereof.
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2
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Valuation:
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Valuation Period:
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Each Scheduled Trading Day during the period commencing on and
including the Valuation Period Start Date to and including the
Valuation Date (but excluding any day(s) on which the Valuation
Period is suspended in accordance with Section 5 herein and
including any day(s) by which the Valuation Period is extended
pursuant to the provision below).
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Notwithstanding anything to the contrary in the Equity Definitions,
to the extent that any Scheduled Trading Day in the Valuation
Period is a Disrupted Day, the Valuation Date shall be postponed
and the Calculation Agent in its sole discretion shall extend the
Valuation Period and make adjustments to the weighting of each
Relevant Price for purposes of determining the Settlement Price,
with such adjustments based on, among other factors, the duration
of any Market Disruption Event and the volume, historical trading
patterns and price of the Shares. To the extent that there are 9
consecutive Disrupted Days during the Valuation Period, then
notwithstanding the occurrence of a Disrupted Day, the Calculation
Agent shall have the option in its sole discretion to either
determine the Relevant Price using its good faith estimate of the
value for the Share on such 9 th consecutive day or
elect to further extend the Valuation Period as it deems
necessary.
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Valuation Period Start Date:
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For each Transaction, as set forth in the Supplemental
Confirmation.
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Valuation Date:
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For each Transaction, as set forth in the Supplemental Confirmation
(as the same may be postponed in accordance with the provisions of
"Valuation Period" and Section 5 herein).
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Settlement Terms:
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Settlement Currency:
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USD (all amounts shall be converted to the Settlement Currency in
good faith and in a commercially reasonable manner by the
Calculation Agent).
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Settlement Method Election:
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Applicable; provided that (a) Section 7.1 of the Equity Definitions
is hereby amended by deleting the word "Physical" in the sixth line
thereof and replacing it with the words "Net Share" and deleting
the word "Physical" in the last line thereof and replacing it with
word "Cash" and (b) in the event that GS&Co. would deliver to
the Counterparty an amount of Shares under Net Share Settlement,
Cash Settlement shall be applicable in lieu of Net Share
Settlement.
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Electing Party:
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Counterparty
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3
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Settlement Method Election Date:
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10 Scheduled Trading Days prior to the originally scheduled
Valuation Date.
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Default Settlement Method:
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Cash Settlement
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Forward Cash Settlement Amount:
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An amount in the Settlement Currency equal to the product of (a)
the Number of Shares multiplied by (b) an amount equal to (i) the
Settlement Price minus (ii) the Forward Price.
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Settlement Price:
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The arithmetic mean of the Relevant Prices of the Shares for each
Exchange Business Day in the Valuation Period.
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Relevant Price:
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The New York 10b-18 Volume Weighted Average Price per share of the
Shares for the regular trading session (including any extensions
thereof) of the Exchange on the related Exchange Business Day
(without regard to pre-open or after hours trading outside of such
regular trading session) as published by Bloomberg at 4:15 p.m. New
York time on such date.
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Cash Settlement Payment Date:
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3 Currency Business Days after the Valuation Date.
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Counterparty's Contact Details for Purpose of Giving
Notice:
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To be provided by Counterparty
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GS&Co.'s Contact Details for Purpose of Giving
Notice:
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Telephone No.: (212) 902-8996
Facsimile No.: (212) 902-0112
Attention: Equity Operations: Options and Derivatives
With a copy to:
Jim Ziperski
Equity Capital Markets
One New York Plaza
New York, NY 10004
Telephone No.: (212) 902-8557
Facsimile No.: (212) 346-2126
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Net Share Settlement:
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Net Share Settlement Procedures:
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Net Share Settlement shall be made in accordance with the
procedures attached hereto as Annex B.
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Net Share Settlement Price:
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The Net Share Settlement Price shall be the price per Share as of
the Valuation Time on the Net Share Valuation Date as reported in
the official real-time price dissemination mechanism for the
Exchange. The Net Share Settlement Price shall be reduced by the
per Share amount of the underwriting discount and/or commissions
agreed to pursuant to the equity underwriting or agency agreement
contemplated by the Net Share Settlement Procedures.
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4
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Valuation Time:
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As provided in Section 6.1 of the Equity Definitions; provided that
Section 6.1 of the Equity Definitions is hereby amended by
inserting the words "Net Share," before the words "Valuation Date"
in the first and third lines thereof.
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Net Share Valuation Date:
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The Exchange Business Day immediately following the Valuation
Date.
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Net Share Settlement Date:
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The third Exchange Business Day immediately following the Valuation
Date.
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Reserved Shares:
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For each Transaction, as set forth in the Supplemental
Confirmation.
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Fixed and Floating Amounts Payable:
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Floating Amount Payable by GS&Co.:
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Floating Amount Payment Date:
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The Cash Settlement Payment Date
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Floating Amount:
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For each Transaction, an amount equal to the sum of the applicable
Federal Funds Rate multiplied by (i) the Daily Notional Amount
multiplied by (ii) 1/360 for each day from and including the
Floating Amount Accrual Date to and including the Valuation
Date.
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Floating Amount Accrual Date:
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Trade Date
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Federal Funds Rate:
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For any date of determination, the "Fed Funds Open Rate," which
shall be the interest rate reported on Bloomberg under the symbol
"FEDSOPEN <index>" on such date. For the avoidance of doubt,
for any day which is not a Currency Business Day the "Federal Funds
Open Rate" for the immediately preceding Currency Business Day
shall apply.
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Daily Notional Amount:
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Commencing with the Floating Amount Accrual Date, for any date of
determination, the Daily Notional Amount shall be an amount equal
to the product of the Initial Notional Amount (as set forth in the
Supplemental Confirmation) multiplied by a fraction with a
numerator equal to the number of Scheduled Trading Days in the
Valuation Period minus the number of Exchange Business Days in the
Valuation Period that have elapsed (other than any days during
which the Valuation Period is suspended pursuant to Section 5
herein) as of such date of determination and a denominator equal to
the number of Scheduled Trading Days in the Valuation Period (such
fraction, the "Remaining Percentage").
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5
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To the extent that the Valuation Period is extended pursuant to the
terms of this Master Confirmation, the Calculation Agent shall
adjust the Daily Notional Amount commencing with the first Exchange
Business Day after such extension (the "Valuation Period Extension
Date"). The notional amount deemed to be remaining at the end of
the Exchange Business Day before the Valuation Period Extension
Date (the "Remaining Notional Value") shall be the Initial Notional
Value multiplied by the Remaining Percentage at the end of such
day. Commencing with the Valuation Period Extension Date, for any
date of determination, the Daily Notional Amount shall be equal to
the product of the Remaining Notional Value multiplied by a
fraction with (a) a numerator equal to (i) the number of Scheduled
Trading Days remaining from and including the Valuation Period
Extension Date to the Valuation Date after extension (the
"Remaining Scheduled Trading Days") minus (ii) the number of
Exchange Business Days in the Valuation Period after extension from
and including the Valuation Period Extension Date that have elapsed
(other than any days during which the Valuation Period after
extension is suspended pursuant to Section 5 herein) as of such
date of determination and (b) a denominator equal to the Remaining
Scheduled Trading Days.
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Fixed Amount Payable by Counterparty:
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Fixed Amount Payment Date:
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The Cash Settlement Payment Date
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Fixed Amount:
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For each Transaction, an amount equal to the sum of (I) the
applicable Daily Additional Spread multiplied by (i) the Daily
Notional Amount multiplied by (ii) 1/360 for each day from and
including the Floating Amount Accrual Date to and including the
Valuation Date plus (II) an amount equal to the sum of the
applicable Fixed Rate multiplied by (i) the Notional Amount
multiplied by (ii) 1/360 for each day from and including the
Floating Amount Accrual Date to and including the Valuation
Date.
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Fixed Rate:
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For each Transaction, as set forth in the Supplemental
Confirmation.
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Daily Additional Spread:
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The Additional Spread shall be 25 basis points
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Notional Amount:
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For any date of determination, 105% of the Daily Notional
Amount.
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Settlement Terms for Fixed Amount:
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Settlement Currency:
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USD (all amounts shall be converted to the Settlement Currency in
good faith and in a commercially reasonable manner by the
Calculation Agent).
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6
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Settlement Method Election:
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Applicable; provided that Section 7.1 of the Equity Definitions is
hereby amended by deleting the word "Physical" in the sixth line
thereof and replacing it with the words "Net Share" and deleting
the word "Physical" in the last line thereof and replacing it with
the word "Cash".
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Electing Party:
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Counterparty
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Settlement Method Election Date:
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10 Scheduled Trading Days prior to the originally scheduled
Valuation Date.
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Default Settlement Method:
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Cash Settlement
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Share Adjustments:
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Method of Adjustment:
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Calculation Agent Adjustment
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Extraordinary Events:
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Consequences of Merger Events:
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Subject to Section 7(b) of the Master Confirmation:
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(a)
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Share-for-Share:
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Modified Calculation Agent Adjustment
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(b)
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Share-for-Other:
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Cancellation and Payment on that portion of the Other Consideration
that consists of cash; Modified Calculation Agent Adjustment on the
remainder of the Other Consideration.
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(c)
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Share-for-Combined:
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Component Adjustment
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Determining Party:
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GS&Co.
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Tender Offer:
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Applicable
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Consequences of Tender Offers:
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Subject to Section 7(b) of the Master Confirmation:
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(a)
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Share-for-Share:
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Modified Calculation Agent Adjustment
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(b)
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Share-for-Other:
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Cancellation and Payment on that portion of the Other Consideration
that consists of cash; Modified Calculation Agent Adjustment on the
remainder of the Other Consideration.
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(c)
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Share-for-Combined:
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Component Adjustment
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Determining Party:
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GS&Co.
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Nationalization, Insolvency or Delisting:
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Subject to Section 7(a) of this Master Confirmation, Negotiated
Close-out; provided that in addition to the provisions of Section
12.6(a)(iii) of the Equity Definitions, it shall also constitute a
Delisting if the Exchange is located in the United States and the
Shares are not immediately re-listed, re-traded or re-quoted on any
of the New York Stock Exchange, the American Stock Exchange or The
NASDAQ National Market (or their respective successors); if the
Shares are immediately re-listed, re-traded or re-quoted on any
such exchange or quotation system, such exchange or quotation
system shall be deemed to be the Exchange.
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7
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Additional Disruption Events:
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(a)
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Change in Law:
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Applicable; provided that Section 12.9(a)(ii)(Y) of the Equity
Definitions is hereby deleted.
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(b)
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Failure to Deliver:
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Not Applicable
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(c)
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Insolvency Filing:
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Applicable
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(d)
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Loss of Stock Borrow:
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Applicable; provided that Loss of Stock Borrow shall not constitute
an Additional Disruption Event so long as Counterparty agrees to
pay the Hedging Party the amount by which the stock loan rate
necessary to maintain a borrowing of Shares by GS&Co. ("Hedge
Position") in connection with the Transaction exceeds the Maximum
Stock Loan Rate.
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Maximum Stock Loan Rate
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30 basis points
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(e)
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Hedging Disruption:
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Not Applicable.
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(f)
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Increased Cost of Hedging:
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Not Applicable.
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(g)
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Increased Cost of Stock Borrow:
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Not Applicable.
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Hedging Party:
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GS&Co.
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Determining Party:
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GS&Co.
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Non-Reliance:
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Applicable
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Agreements and Acknowledgements Regarding Hedging
Activities:
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Applicable
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Additional Acknowledgements:
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Applicable
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8
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Net Share Settlement following Extraordinary Event:
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Counterparty shall have the right, in its sole discretion, to make
any payment required to be made by it pursuant to Sections 12.7 or
12.9 of the Equity Definitions (except with respect to any portion
of the consideration for the Shares consisting of cash in the event
of a Merger Event or Tender Offer) following the occurrence of an
Extraordinary Event by electing to Net Share Settle the
Transactions under this Master Confirmation in accordance with the
terms, and subject to the conditions, for Net Share Settlement
herein by giving written notice to GS&Co. of such election on
the day that the notice fixing the date that the Transactions are
terminated or cancelled, as the case may be, (the "Cancellation
Date") pursuant to the applicable provisions of Section 12 of the
Equity Definitions is effective. If Counterparty elects Net Share
Settlement: (a) the Net Share Valuation Date shall be the date
specified in the notice fixing the date that the Transactions are
terminated or cancelled, as the case may be; provided that the Net
Share Valuation Date shall be either the Exchange Business Day that
such notice is effective or the first Exchange Business Day
immediately following the Exchange Business Day that such notice is
effective, (b) the Net Share Settlement Date shall be deemed to be
the Exchange Business Day immediately following the Cancellation
Date and (c) all references to the Forward Cash Settlement Amount
or the Fixed Amount, as the case may be, in Annex B hereto shall be
deemed to be references to the Cancellation Amount. The definition
of "Cancellation Amount" in Section 12.8 of the Equity Definitions
is hereby amended by inserting the following paragraph: "(h) The
Determining Party shall show the other party in reasonable detail
its calculation of the Cancellation Amount, including without
limitation providing all relevant quotations and assumptions and
specifying the methodologies used in sufficient detail so as to
enable the other party to replicate the calculation".
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9
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Net Share Settlement Upon Early Termination:
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Counterparty shall have the right, in its sole discretion, to make
any payment required to be made by it (the "Early Termination
Amount") pursuant to Sections 6(d) and 6(e) of the Agreement
following the occurrence of an Early Termination Date in respect of
the Agreement by electing to Net Share Settle all the Transactions
under this Master Confirmation in accordance with the terms, and
subject to the conditions, for Net Share Settlement herein by
giving written notice to GS&Co. of such election on the day
that the notice fixing an Early Termination Date is effective. If
Counterparty elects Net Share Settlement: (a) the Net Share
Valuation Date shall be the date specified in the notice fixing an
Early Termination Date; provided that the Net Share Valuation Date
shall be either the Exchange Business Day that such notice is
effective or the first Exchange Business Day immediately following
the Exchange Business Day that such notice is effective, (b) the
Net Share Settlement Date shall be deemed to be the Exchange
Business Day immediately following the Early Termination Date
(except for an Early Termination as a result of Section 7(d), in
which event the Net Share Settlement Date shall be deemed to be the
tenth Exchange Business Day following the Early Termination Date)
and (c) all references to Forward Cash Settlement Amount or the
Fixed Amount, as the case may be, in Annex B hereto shall be deemed
references to the Early Termination Amount.
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Transfer:
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Notwithstanding anything to the contrary in the Agreement,
GS&Co. may assign, transfer and set over all rights, title and
interest, powers, privileges and remedies of GS&Co. under any
Transaction, in whole or in part, to an affiliate of GS&Co.
that is fully and unconditionally guaranteed by The Goldman Sachs
Group, Inc. without the consent of Counterparty, provided that
Counterparty is not required to make a payment to GS&Co. in
respect of an Indemnifiable Tax as a result of such
transfer.
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GS&Co. Payment Instructions:
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Chase Manhattan Bank New York
For A/C Goldman, Sachs & Co.
A/C # 930-1-011483
ABA: 021-000021
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Counterparty Payment Instructions:
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PG&E Corporation Master Account No. 099023
Mellon Trust of New England, N.A.
Boston, MA
ABA Routing No: 011001234
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2.
Calculation Agent :
GS&Co.
3.
Representations, Warranties and
Covenants of GS&Co. and Counterparty
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(a) Each
party represents and warrants that it (i) is an "eligible
contract participant", as defined in the U.S. Commodity Exchange
Act, as amended and (ii) is entering into each
10
Transaction hereunder as principal
(and not as agent or in any other capacity, fiduciary or otherwise)
and not for the benefit of any third party.
(b) Each
party acknowledges that the offer and sale of each Share Forward
Transaction to it is intended to be exempt from registration under
the Securities Act of 1933, as amended (the "Securities Act"), by
virtue of Section 4(2) thereof and the provisions of
Regulation D promulgated thereunder ("Regulation D"); and this
acknowledgement shall not be deemed to extend to Settlement Shares
or Early Settlement Shares. Accordingly, each party represents and
warrants to the other that (i) it has the financial ability to
bear the economic risk of its investment in each Share Forward
Transaction and is able to bear a total loss of its investment,
(ii) it is an "accredited investor" as that term is defined
under Regulation D, (iii) it will purchase each Share
Forward Transaction for investment and not with a view to the
distribution or resale thereof, and (iv) the disposition of
each Share Forward Transaction is restricted under this Master
Confirmation and each Supplemental Confirmation, the Securities Act
and state securities laws.
4.
Additional Representations, Warranties
and Covenants of Counterparty
.
As
of the date hereof and the date of each Supplemental Confirmation,
Counterparty represents, warrants and covenants to GS&Co.
that:
(a) the
purchase or writing of each Transaction will not violate
Rule 13e-1 or Rule 13e-4 under the Securities Exchange
Act of 1934, as amended (the "Exchange Act");
(b) is
not entering into any Transaction on the basis of, and is not aware
of, any material non-public information with respect to the Shares
or in anticipation of, in connection with, or to facilitate, a
distribution of its securities, a self tender offer or a
third-party tender offer;
(c) it
is not entering into any Transaction to create, and will not engage
in any other securities or derivative transaction to create, a
false or misleading appearance of active trading or market activity
in the Shares (or any security convertible into or exchangeable for
the Shares), or which would otherwise violate the Exchange
Act;
(d) Counterparty
is in compliance with its reporting obligations under the Exchange
Act and its most recent Annual Report on Form 10-K, together
with all reports subsequently filed by it pursuant to the Exchange
Act, taken together and as amended and supplemented to the date of
this representation, do not, as of their respective filing dates,
contain any untrue statement of a material fact or omit any
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances in which
they were made, not misleading;
(e) each
Transaction is being entered into pursuant to a publicly disclosed
Share buy-back program and its Board of Directors has approved the
use of the Transaction to effect the Share buy-back
program;
(f) notwithstanding
the generality of Section 13.1 of the Equity Definitions,
GS&Co. is not making any representations or warranties with
respect to the treatment of any Transaction under FASB Statements
149 or 150, EITF 00-19 (or any successor issue statements) or under
FASB's Liabilities & Equity Project;
(g) it
has not, and during any Valuation Period (as extended pursuant to
the provisions of Section 5 and "Valuation Period" herein)
will not, enter into agreements similar to the Transactions
described herein except with GS&Co. or an entity affiliated
with GS&Co. where the valuation period in such other
transaction will overlap at any time (including as a result of
extensions in such valuation period as provided in the relevant
agreements) with any Valuation Period (as extended pursuant to the
provisions of Section 5 and "Valuation Period" herein) under
this Master Confirmation. In the event that the valuation period in
any other similar transaction with an entity other than GS&Co.
or an entity affiliated with GS&Co. overlaps with any
Valuation
11
Period under this Master
Confirmation as a result of any extension made pursuant to the
provisions of Section 5 and "Valuation Period" herein,
Counterparty shall promptly amend such transaction to avoid any
such overlap; and
(h) it
shall report each Transaction as required under the Exchange Act
and the regulations promulgated thereunder.
5.
Suspension of Valuation Period;
Extension of Valuation Period
.
(a) If
Counterparty concludes that it will be engaged in a distribution of
the Shares for purposes of Regulation M promulgated under the
Exchange Act ("Regulation M"), Counterparty agrees that it will, on
one Scheduled Trading Day's written notice, direct GS&Co. not
to purchase Shares in connection with hedging any Transaction
during the "restricted period" (as defined in Regulation M).
If on any Scheduled Trading Day Counterparty delivers written
notice (and confirms by telephone) by 8:30 a.m. New York Time
(the "Notification Time"), then such notice shall be effective to
suspend the Valuation Period as of such Notification Time. In the
event that Counterparty delivers notice and/or confirms by
telephone after the Notification Time, then the Valuation Period
shall be suspended effective as of 8:30 a.m. New York Time on
the following Scheduled Trading Day or as otherwise required by law
or agreed between Counterparty and GS&Co. The Valuation Period
shall be suspended and the Valuation Date extended for each
Scheduled Trading Day in such restricted period.
(b) In
the event that GS&Co. concludes, in its reasonable discretion,
that it is appropriate with respect to any legal, regulatory or
self-regulatory requirements or related policies and procedures
(whether or not such requirements, policies or procedures are
imposed by law or have been voluntarily adopted by GS&Co.), for
it to refrain from purchasing Shares on any Scheduled Trading Day
during the Valuation Period, GS&Co. may by written notice to
Counterparty elect to suspend the Valuation Period for such number
of Scheduled Trading Days as is specified in the notice. The notice
shall not specify, and GS&Co. shall not otherwise communicate
to Counterparty, the reason for GS&Co.'s election to suspend
the Valuation Period. The Valuation Period shall be suspended and
the Valuation Date extended for each Scheduled Trading Day
occurring during any such suspension.
(c) In
the event that the Valuation Period is suspended pursuant to
Sections 5(a) or (b) above during the regular trading session
on the Exchange, then the Calculation Agent in its sole discretion
shall, in calculating the Forward Cash Settlement Amount, extend
the Valuatio
