EXECUTION COPY
GOLDMAN SACHS & CO. 185 BROAD STREET
NEW YORK, NEW YORK
10004
TEL: 212-902-1000
Opening Transaction
To:
Techne Corporation
614 McKinley Place N.E.
Minneapolis. MN 55413
From: Goldman, Sachs
& Co.
Subject: Accelerated Share Repurchase
Transaction - VWAP Pricing
(Collared and Non-Collared)
Ref. No: EN50B4000000000
Date: March 1,
2005
This master confirmation ("Master
Confirmation") dated as of March 1, 2005, 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 Techne Corporation
("Counterparty"). This Master Confirmation,
taken alone, is neither a commitment by
either party 10 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 or Annex B hereto, as the case may
be, 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.
All provisions contained in or incorporated
by reference in the form of the 1992
ISDA Master Agreement (Multi-Currency Cross
Border) (the "ISDA Form" or the
"Agreement") will govern this Master
Confirmation and each Supplemental
Confirmation except as expressly modified
hereby or thereby. Subject to the
preceding sentence, this Master
Confirmation and each Supplemental Confirmation,
together with all other documents referring
to 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 for (i) the election
of Loss and Second Method, New York law
(without regard to the 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" and (iv) the election that the
"Cross Default" provisions of Section
5(a)(vi) shall apply to Counterparty, with
a "Threshold Amount" of USD 50
million).
All provisions contained in the Agreement
shall govern this Master Confirmation
and the related Supplemental Confirmation
relating to a Transaction except as
expressly modified below or in the related
Supplemental Confirmation. With
respect to any relevant Transaction, the
Agreement, this Master Confirmation and
the related Supplemental Confirmation,
together with an other documents
referring to the Agreement confirming
Transactions entered into between GS&Co.
and Counterparty, 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 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.
l. 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.
General Terms:
Trade Date:
For each Transaction, as set forth in the
Supplemental Confirmation.
Seller:
Counterparty
Buyer:
GS&Co.
Shares:
Common Stock (par value $0.01) of
Counterparty
(Ticker:TECH)
Number of Shares:
For each Transaction. as set forth in the
Supplemental Confirmation.
Forward Price:
For each Transaction, as set forth in the
Supplemental Confirmation.
Capped Settlement Amount:
For each
Collared Transaction, as set
forth in the Supplemental Confirmation.
Floor Settlement Amount:
For each
Collared Transaction, as set
forth in the Supplemental Confirmation.
Hedge Forward Differential:
For each
Collared Transaction, as set forth
in the Supplemental Confirmation.
Hedge Forward
Cash Settlement Amount:
For each Collared Transaction, as set forth
in the Supplemental Confirmation.
Collared Transaction:
A Transaction entered into pursuant to a
Supplemental Confirmation in the form of
Annex B hereto.
Prepayment:
Not Applicable
Variable Obligation:
Not Applicable
Exchange:
NASDAQ
Related Exchange(s):
All Exchanges
Market Disruption Event:
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.
Counterparty Additional
Payment Amount:
For each Transaction, as set forth in the
Supplemental Confirmation, Counterparty
shall pay the Counterparty Additional
Payment Amount to GS&Co. on the Cash
Settlement Payment Date.
Valuation:
Valuation Period:
Each Scheduled Trading Day during the
period commencing on and including the
first succeeding Scheduled Trading Day
following the Trade Date, or, for Collared
Transactions, the first succeeding
Scheduled Trading Day following the Hedge
Completion Date (as defined in the
Supplemental Confirmation), 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).
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
9th consecutive day or elect to further
extend the Valuation Period as it deems
necessary.
Valuation Date:
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).
Settlement Terms:
Settlement Currency:
USD (all amounts shall be converted to the
Settlement Currency in good faith and in a
commercially reasonable manner by the
Calculation Agent).
Settlement Method Election:
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 word "Cash".
Electing Party:
Counterparty
Settlement Method
Election Date:
20 Scheduled Trading Days prior to the
originally scheduled Valuation Date.
Default Settlement Method:
Cash
Settlement
Additional Cash
Settlement
Procedures:
In addition to the payments payable
pursuant to Section 8.4(a) of the Equity
Definitions, the following additional
amounts will be payable on the Cash
Settlement Payment Date:
(a) If the Collared Forward Cash
Settlement
Amount is a positive number,
then Seller shall pay to Buyer the Collared
Forward Cash Settlement Amount (such amount,
the "Net Cash Amount"); or
(b) if the Collared Forward Cash Settlement
Amount is a negative number, then Buyer shall
pay to Seller the absolute value of the
Collared Forward Cash Settlement Amount.
Collared Forward
Cash Settlement Amount:
An amount in the Settlement Currency equal
to the sum of the Hedge Forward Differential
and:
(a) if the Hedge Forward Cash Settlement
Amount is a positive number, the lesser of
the Hedge Forward Cash Settlement Amount and
the Capped Settlement Amount; or
(b) if the Hedge Forward Cash Settlement
Amount is a negative number, the lesser of the
absolute value of the Hedge Forward Cash
Settlement Amount and the Floor Settlement
Amount.
Forward Cash
Settlement Amount:
An amount in the Settlement Currency equal to
the product of (a) the Number of Shares
multiplied by one minus the Applicable
Percentage, multiplied by (b) an amount equal
to (i) the Settlement Price minus (ii) the
Forward Price.
Applicable Percentage:
For each Transaction, as set forth in the
Supplemental Confirmation.
Settlement Price:
The arithmetic mean of the Relevant Prices of
the Shares for each Exchange Business Day in
the Valuation Period.
Relevant Price:
The NASDAQ 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. For
purposes of calculating Relevant Price, the
Calculation Agent will include only those
trades which are reported during the period of
time during which Counterparty could purchase
its own shares under Rule I Ob-18(b )(2), and
pursuant to the conditions of Rule I Ob-18
(b )(3) and (b)( 4) each under the Exchange
Act (as defined herein).
Cash Settlement Payment
Date: 3 Currency
Business Days after the Valuation
Date.
Counterparty's Contact
Details
for Purpose of Giving
Notice: Gregory
J. Melsen
Techne Corporation
Vice President Finance and Chief
Financial Officer
614 McKinley Place N.E.
Minneapolis, MN 55413
Telephone No.: (612) 656-4472
Facsimile No.:
(612) 379-6580
GS&Co.' s Contact
Details for
Purpose of Giving Notice:
Telephone No.: (212) 902-8996
Facsimile No.: (212) 902-0112
Attention: Equity Operations: Options
and Derivatives
With a copy to:
Kelly Coffey
Equity Capital Markets
One New York Plaza
New York, NY 10004 Telephone
No.: (212) 902-1037
Facsimile No.: (212) 902-5305
Net Share Settlement:
Net Share Settlement
Procedures: Net Share Settlement shall be made in
accordance with the procedures attached
hereto as Annex C.
Net Share Settlement Price:
(a)
in respect of any Share for which the
Exchange is an auction or "open outcry"
exchange that has a price as of the
Valuation Time at which any trade can be
submitted for execution, 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 such Exchange, (b) in respect
of any Share for which the Exchange is a
dealer exchange or dealer quotation
system, the Net Share Settlement Price shall
be the mid-point of the highest bid and
lowest ask prices quoted as of the Valuation
Time on the Net Share Valuation Date (or the
last such prices quoted immediately before
the Valuation Time) without regard to
quotations that "lock" or "cross" the dealer
exchange or dealer quotation system. In an
cases 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
agreement contemplated by the Net Share
Settlement Procedures and (c) notwith-
standing anything to the contrary in (b)
above, where NASDAQ is the Exchange, the
Net Share Settlement Price will be the
NASDAQ Official Closing Price (NOCP) as of
the Valuation Time on the Net Share
Valuation Date as reported in the official
price determination mechanism for the
Exchange.
Valuation Time:
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 Valuation
Date," before the words "Valuation Date" in
the first and third lines thereof.
Net Share Valuation Date:
The
Exchange Business Day immediately
following the Valuation Date.
Net Share Settlement Date:
The third
Exchange Business Day immediately
following the Valuation Date.
Reserved Shares:
For each Transaction) as set forth in the
Supplemental Confirmation.
Share Adjustments:
Method of Adjustment:
Calculation Agent Adjustment
Extraordinary Events:
Consequences of Merger Events:
(a) Share-for-Share:
Modified Calculation Agent Adjustment
(b) Share-for-Other:
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.
(c) Share-for-Combined:
Component Adjustment
Determining Party:
GS&Co.
Tender Offer:
Applicable
Consequences of Tender Offers:
(a) Share-for-Share:
Modified Calculation Agent Adjustment
(b) Share-for-Other:
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.
(c) Share-for-Combined:
Component Adjustment
Determining Party:
GS&Co.
Nationalization, Insolvency
or Delisting:
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.
Additional Disruption Events:
(a) Change in Law:
Applicable
(b) Failure to Deliver:
Not Applicable
(c) Insolvency Filing:
Applicable
(d) Loss of Stock Borrow:
Applicable; furthermore Sections 12.9(a)(vii)
and 12.9(b)(iv) of the Equity Definitions are
amended by deleting the words "at a rate
equal to or less than the Maximum Stock Loan
Rate" and replacing them with "at a rate of
return equal to or greater than zero".
Hedging Party:
GS&Co.
Determining Party:
GS&Co.
Non-Reliance:
Applicable
Agreements and Acknowledgements
Regarding Hedging Activities:
Applicable
Additional Acknowledgements:
Applicable
Net Share Settlement following
Extraordinary Event:
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) a1l
references to the Forward Cash Settlement
Amount or the Net Cash Amount, as the case
may be, in Annex C hereto shall be deemed to
be references to the Cancellation Amount.
Net Share Settlement Upon
Early Termination:
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 and (c) all references to
Forward Cash Settlement Amount or the Net
Cash Amount, as the case may be, in Annex C
hereto shall be deemed references to the
Early Termination Amount.
Transfer:
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
guaranteed by The Goldman Sachs Group, Inc.
without the consent of Counterparty.
GS&Co. Payment Instructions:
Chase Manhattan Bank New York
For A/C Goldman, Sachs & Co.
A/C #__________
ABA: 021-000021
Counterparty Payment Instructions: To be
provided by Counterparty
2. Calculation
Agent: GS&Co.
3.
Representations. Warranties and Covenants of GS&Co. and
Counterparty.
(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 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 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"). 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 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
Transaction for investment and not with a
view to the distribution or resale
thereof, and (iv) the disposition of each
Transaction is restricted under this
Master Confirmation and each Supplemental
Confirmation, the Securities Act and
state securities laws.
(c) Each party acknowledges that, for the
avoidance of doubt, no collateral is
required to be posted by Counterparty with
respect to any Transaction.
4. Additional
Representations. Warranties and Covenants of Counterparty.
As of (i) the date hereof and (ii) the
period of time from and including the
time at which Counterparty places an order
with GS&Co. for a Transaction (the
"Time of the Order") to and including the
Hedge Completion Date, Counterparty
represents, warrants and covenants to
GS&Co. that:
(a) Counterparty will provide notice to
GS&Co. of any third-party tender offer
of which it is aware for purposes of Rule
13e-l 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 nonpublic 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 IO-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 Agreement and
the Master Confirmation (including the use
of derivatives) in substantially the
form of such documents executed and
delivered by the parties hereto 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 will not take any action or refrain
from taking any action that would
knowingly limit or in any way adversely
affect GS&Co.'s rights under the
Agreement, so long as GS&Co. is not in
breach of the Agreement or this Master
Confirmation, provided that the foregoing
shall not in any manner be construed
to limit Counterparty's ability to protect,
preserve and pursue any of its
rights under the Agreement or this Master
Confirmation in a commercially
reasonable manner;
(h) it has not, and during any Valuation
Period (as extended pursuant to the
provisions of Section 5 and "Valuation
Period" herein) or Hedge Period will not,
enter into agreements similar to the
Transactions described herein 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) or
Hedge Period under this Master
Confirmation. In the event that the
valuation period in any other similar
transaction overlaps with any Hedge Period
or any Valuation 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;
(i) during the Hedge Period and the
Valuation Period (as extended or
suspended pursuant to the provisions of
Section 5 and "Valuation Period" herein)
the Shares or securities that are
convertible into, or exchangeable or
exercisable for Shares are not subject to a
"restricted period" as such term is
defined in Regulation M promulgated under
the Exchange Act ("Regulation M");
(j) upon entering into each Transaction the
Counterparty covenants that it wi1l
immediately retire or hold in treasury the
Number of Shares purchased by it in
connection with the relevant Transaction
from an entity affiliated with GS&Co.;
and
(k) it shall report each Transaction as
required under Regulation S-K and/or
Regulation S-B under the Exchange Act, as
applicable.
5. Suspension of
Valuation Period and/or Hedge Period.
(a) If Counterparty concludes that it will
be engaged in a distribution of the
Shares for purposes of Regulation M,
Counterparty agrees that it wi1t, 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 or the Hedge Period, as
the case may be, 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 or
the Hedge Period, as the case may be, 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 sole 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 or
the Hedge Period, GS&Co. may by
written notice to Counterparty elect to
suspend the Valuation Period or the
Hedge Period, as the case may be, 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 or the Hedge
Period. The Valuation Period shall be
suspended and the Valuation Date extended
for each Scheduled Trading Day
occurring during any such suspension.
(c) On one occasion and upon written notice
to GS&Co. prior to 8:30 a.m. New
York time on any Scheduled Trading Day
during the Valuation Period and the Hedge
Period, Counterparty may elect to suspend
the Valuation Period or the Hedge
Period, as the case may be, for such number
of Scheduled Trading Days as is
specified in the notice up to a maximum of
30 calendar days. The notice shall
not specify, and Counterparty shall not
otherwise communicate to GS&Co., the
reason for Counterparty's election to
suspend the Valuation Period or the Hedge
Period. The Valuation Period shall be
suspended and the Valuation Date extended
for each Scheduled Trading Day occurring
during any such suspension.
(d) In the event Counterparty is subject to
a third-party tender offer, and for
purposes of Counterparty's compliance with
Rule Be-I, Counterparty may elect,
upon written notice to GS&Co. prior to
8:30 a.m. New York time on any Scheduled
Trading Day during the Valuation Period and
the Hedge Period, to suspend the
Valuation Period or the Hedge Period, as
the case may be, for such number of
Scheduled Trading Days as is specified in
the notice up to a maximum of 30
calendar days. The Valuation Period shall
be suspended and the Valuation Date
extended for each Scheduled Trading Day
occurring during any such suspension.
(e) In the event that the Valuation Period
is suspended pursuant to Sections
5(a),(b), (c) or (d) 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
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 such suspension and the
volume, historical trading patterns and
price of the Shares.
6.
Counterparty Purchases. Counterparty represents, warrants and
covenants
to GS&Co. that for each
Transaction:
(a) Counterparty (or any "affiliated
purchaser" as defined in Rule 1 Ob-18 under
the Exchange Act ("Rule 10b-18") shall not,
without the prior written consent
of GS&Co., purchase any Shares, listed
contracts on the Shares or securities
that are convertible into, or exchangeable
or exercisable for Shares (including,
without limitation, any Rule IOb-18
purchases of blocks (as defined in Rule I
Ob-18)) during any Valuation Period or
Hedge Period (as extended pursuant to the
provisions of Section 5 and "Valuation
Period" herein). During this time, any
such purchases by Counterparty shall be
made through GS&Co., or if not through
GS&Co., with the prior written consent
of GS&Co., and in compliance with Rule
lOb-18 or otherwise in a manner that
Counterparty and GS&Co. believe is in
compliance with applicable requirements.
Any such purchase by Counterparty shall
be disregarded for purposes of determining
the Forward Cash Settlement Amount.
To the extent that Counterparty makes any
such purchase other than through
GS&Co., or other than in connection
with any Transaction, Counterparty hereby
represents and warrants to GS&Co. that
(a) it will not take other action that
would or could cause GS&Co.'s purchases
of the Shares during the Valuation
Period and the Hedge Period not to comply
with Rule 1Ob-18 and (b) any such
purchases will not otherwise constitute a
violation of Section 9(a) or Rule
10(b) of the Exchange Act. This
subparagraph (a) shall not restrict any
purchases by Counterparty of Shares
effected during any suspension of any
Valuation Period or any Hedge Period in
accordance with Section 5 herein and any
purchases during such suspension shall be
disregarded in calculating the Forward
Cash Settlement Amount; and
(b) Counterparty is entering into this
Master Confirmation and each Transaction
hereunder in good faith and not as part of
a plan or scheme to evade the
prohib
