Exhibit 10.1
EXECUTION COPY
GOLDMAN SACHS & CO. | 85
BROAD STREET | NEW YORK, NEW YORK 10004 | TEL:
212-902-1000
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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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EN50BJ000000000
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Date:
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March 4, 2005
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This
master confirmation ("Master Confirmation") dated as of March 4,
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 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.
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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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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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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Nicholas Bijur
Assistant Treasurer
PG&E Corporation
One Market Street, Spear Tower
Suite 2400
San Francisco, CA 94105
Telephone No.: (415) 817-8199
Facsimile No.: (415) 267-7265
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With a copy to:
Gary Encinas
Chief Counsel-Corporate
PG&E Corporation
One Market Street, Spear Tower
Suite 2400
San Francisco, CA 94105
Telephone No.: (415) 817-8201
Facsimile No.: (415) 817-8225
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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
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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) 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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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, Floating and
Counterparty
Additional Payment Amounts Payable:
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 Originally Scheduled 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 Originally Scheduled Number of Scheduled Trading Days in the
Valuation Period (such fraction, the "Remaining
Percentage").
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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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Counterparty Additional
Amount
Payable by Company:
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Counterparty Additional Payment
Amount:
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For each Transaction, as set
forth in the Supplemental
Confirmation.
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Counterparty Additional Payment
Date:
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The Cash Settlement Payment
Date.
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Settlement Terms for Fixed Amount
and
Counterparty Additional Payment 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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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:
Consequences of Merger
Events: Subject
to Section 7(b) of the Master Confirmation:
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(a) Share-for-Share:
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Modified Calculation Agent
Adjustment
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(b) 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) 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: Applicable
Consequences of Tender
Offers: Subject
to Section 7(b) of the Master Confirmation:
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(a) Share-for-Share:
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Modified Calculation Agent
Adjustment
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(b) 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) 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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Additional Disruption
Events:
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(a) 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) Failure to
Deliver:
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Not
Applicable
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(c) Insolvency
Filing:
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Applicable
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(d) 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) Hedging
Disruption:
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Not
Applicable.
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(f) Increased Cost
of Hedging:
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Not
Applicable.
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(g) 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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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
, the Fixed Amount and the Counterparty
Additional Payment 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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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 , the Fixed
Amount and the Counterparty Additional
Payment 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 .
(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 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 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 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.
(d) On
the first Exchange Business Day of each calendar week during the
Valuation Period, to the extent that the Number of Daily Reference
Shares exceeds 25% of the ADTV (as defined in Rule 10b-18 under the
Exchange Act ("Rule 10b-18")) for the Shares on such day, the
Calculation Agent will (i) adjust the Number of Daily Reference
Shares to equal an amount equal to 15% of ADTV for the
Share
