UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 5)
GENESEE & WYOMING INC.
(Name of Issuer)
Class A Common Stock, par value $0.01 per share
(Title of Class of Securities)
371559105
(CUSIP Number)
Mortimer B. Fuller III
Genesee & Wyoming Inc.
66 Field Point Road
Greenwich, CT 06830
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
September 19, 2012
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule 13d-1(g), check the following box. ¨
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.
* | The remainder of this cover page shall be filled out for a reporting persons initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. |
The information required on the remainder of this cover page shall not be deemed to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934 (Act) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
CUSIP NO. 371559105 |
1. |
NAME OF REPORTING PERSON
Mortimer B. Fuller III | |||||
2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ¨ (b) ¨
| |||||
3. | SEC USE ONLY
| |||||
4. | SOURCE OF FUNDS
Not Applicable | |||||
5. | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E): ¨
| |||||
6. | CITIZENSHIP OR PLACE OF ORGANIZATION
United States | |||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7. | SOLE VOTING POWER
1,284,989 shares | ||||
8. | SHARED VOTING POWER
11,704 shares | |||||
9. | SOLE DISPOSITIVE POWER
1,283,086 shares | |||||
10. | SHARED DISPOSITIVE POWER
11,704 shares | |||||
11. |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:
1,296,693 shares | |||||
12. |
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| |||||
13. |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.8% | |||||
14. |
TYPE OF REPORTING PERSON
IN |
This Amendment No. 5 (this Amendment No. 5) to Schedule 13D amends the statement of beneficial ownership on Schedule 13D filed on December 21, 2000 by and on behalf of Mortimer B. Fuller III (Mr. Fuller) with respect to the Class A Common Stock, par value $.01 per share (Class A Common Stock), of Genesee & Wyoming Inc., a Delaware corporation (the Company), beneficially owned by Mr. Fuller as subsequently amended by Amendment No. 1 filed on December 21, 2001, Amendment No. 2 filed on March 19, 2004, Amendment No. 3 filed on June 15, 2004 and Amendment No. 4 filed on March 5, 2009 (as so amended, the Schedule 13D). Capitalized terms used, but not defined, herein have the meanings ascribed thereto in the Schedule 13D.
Item 3. | Source and Amount of Funds or Other Consideration |
Item 3 of the Schedule 13D is hereby amended by adding the following thereof:
Mr. Fuller has acquired beneficial ownership of shares of Class A Common Stock through grants of deferred stock units by the Company.
Item 4. | Purpose of Transaction |
Item 4 of Schedule 13D is hereby amended by adding the following at the end thereof:
On November 28, 2011, Mr. Fuller entered into a variable prepaid forward agreement (the November 2011 VPF) relating to 50,000 shares of common stock of the Company, which contract expires on November 28, 2012, and for which Mr. Fuller received net proceeds of $2,387,407. Under the terms of the contract, Mr. Fuller has agreed to deliver shares of Class B Common Stock (which are immediately convertible into shares of Class A Common Stock on a one-for-one basis) or shares of Class A Common Stock on the expiration date of the contract (or on an earlier date if the contract is terminated early) as follows: (1) if the final price is less than or equal to the floor price ($55.85 per share) (the November Floor Price), 50,000 shares; (2) if the final price is less than or equal to the cap price ($72.60 per share) (the November Cap Price), but greater than the November Floor Price, then a number of shares equal to 50,000 times the November Floor Price divided by the final price; and (3) if the final price is greater than the November Cap Price, then a number of shares equal to 50,000 shares multiplied by a fraction, the numerator of which is the sum of the November Floor Price and the difference between the final price and the November Cap Price, and the denominator of which is the final price. In connection with the November 2011 VPF, Mr. Fuller has pledged 50,000 shares of Class B Common Stock to secure his obligations under the contract. Under the contract, in lieu of delivery of shares, Mr. Fuller may, at his option, settle the contract by delivery of cash.
Item 5. | Interest in Securities of the Issuer |
Item 5 of Schedule 13D is hereby amended and restated in its entirely as follows:
(a) (b) The beneficial ownership of the Companys Class A Common Stock by Mr. Fuller is as follows:
Mr. Fuller beneficially owns 1,296,693 shares of Class A Common Stock, (i) 1,903 of which are represented by restricted stock; (ii) 56,374 of which may be purchased by Mr. Fuller pursuant to options exercisable within 60 days; (iii) 3,175 of which may be received for deferred stock units; (iv) 1,124,862 of which are represented by shares of Class B Common Stock held by Mr. Fuller that are convertible into an equivalent number of shares of Class A Common Stock at any time; (v) 5,956 of which are represented by shares owned by Mr. Fullers wife, as to which shares Mr. Fuller disclaims beneficial ownership; (vi) 5,748 of which are represented by shares of Class B Common Stock held by Mr. Fullers wife that are convertible into an equivalent number of shares of Class A Common Stock at any time, as to which shares Mr. Fuller disclaims beneficial ownership; and (vii) 98,675 of which are represented by shares of Class B Common Stock held by a grantor retained annuity trust of which Mr. Fuller is the trustee and principal beneficiary, which shares are convertible into an equivalent number of shares of Class A Common Stock at any time. Such beneficial ownership represents 2.8% of the outstanding shares of Class A Common Stock (assuming the conversion of shares of Class B Common Stock beneficially owned by Mr. Fuller to Class A Common Stock and the exercise of Mr. Fullers options to purchase shares of Class A Common Stock).
Of such shares, Mr. Fuller has the sole power to vote or direct the voting of 1,284,989 shares and the sole power to dispose or direct the disposition of 1,283,086 shares. Mr. Fuller may be deemed to share the power to dispose or direct the disposition of, and the power to vote or direct the voting of, the 11,704 shares of Class A Common Stock beneficially owned by his wife, but any such statements in this Schedule 13D shall not be deemed an admission that he is the beneficial owner of such shares.
(c) On August 31, 2012, Mr. Fuller converted 220,000 shares of Class B Common Stock to an equivalent number of shares of Class A Common Stock. During the past 60 days, Mr. Fuller also effected the following transactions in the Companys Class A Common Stock:
On September 12, 2012, the Company filed a registration statement on Form S-3 (Registration No. 333-183862) with the SEC relating to the proposed underwritten public offering of 3,500,000 shares of Class A Common Stock, which amount included 233,996 shares of Class A Common Stock offered by Mr. Fuller (the Offering). Pursuant to the Offering, the underwriters were granted the option to purchase up to 525,000 additional shares of Class A Common Stock from the Company at the public offering price, less the underwriting discount, for 30 days thereafter. The underwriting agreement contains customary lock-up provisions.
On September 17, 2012, the Company filed a final prospectus pursuant to Rule 424(b)(4) with the SEC which was immediately declared effective. The Offering price was set at $64.75 and the underwriting discount at $2.9137. Subsequently, the underwriters fully exercised their option to purchase additional shares to cover over-allotments and the Offering, including the over-allotment, closed on September 19, 2012.
Mr. Fuller sold an aggregate of 233,996 shares of Class A Common Stock in the Offering, which consisted of: (i) 220,000 shares of Class A Common Stock acquired by him upon the conversion of 220,000 shares of Class B Common Stock as described above; (ii) 10,905 shares of Class A Common Stock owned by him individually; and (iii) 3,091 shares of Class A Common Stock acquired by him upon the exercise of options on May 24, 2012. The purpose of the sale made by Mr. Fuller was (1) to diversify Mr. Fullers portfolio, and (2) related to Mr. Fullers tax planning.
(d) Not applicable to this filing.
(e) Mr. Fuller ceased to be the beneficial owner of more than five percent of Class A Common Stock on September 19, 2012.
Item 6. | Contracts, Arrangements, Understanding or Relationships with Respect to Securities of the Issuer. |
Item 6 of the Schedule 13D is hereby amended by adding the following at the end thereof as follows:
The November 2011 VPF described in Item 4 herein is incorporated by reference in this Item 6.
Item 7. | Material to be Filed as Exhibits |
Included as an exhibit to this Amendment No. 5 is the following:
1. | Variable Prepaid Forward Confirmation between the Reporting Person and Credit Suisse Capital LLC. |
2. | Variable Prepaid Forward Agreement between the Reporting Person and Credit Suisse Boston Capital, LLC (incorporated by reference to Exhibit 1 to the Reporting Persons Amendment No. 2 to Schedule 13D filed on March 19, 2004). |
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement with respect to such person is true, complete and correct.
/s/ Mortimer B. Fuller III | ||||
Mortimer B. Fuller III | ||||
Dated: September 24, 2012 |
INDEX TO EXHIBITS
1. | Variable Prepaid Forward Confirmation between the Reporting Person and Credit Suisse Capital LLC. |
2. | Variable Prepaid Forward Agreement between the Reporting Person and Credit Suisse Boston Capital LLC (incorporated by reference to Exhibit 1 to the Reporting Persons Amendment No. 2 to Schedule 13D filed on March 19, 2004). |
Exhibit 1
Credit Suisse Capital LLC
Credit Suisse Securities (USA) LLC
As Agent
11 Madison Avenue
New York, NY 10010
VARIABLE PREPAID FORWARD CONFIRMATION
Date: | 1 December 2011 | |
To: | Mr. Mortimer B. Fuller, III | |
66 Field Point Road | ||
Greenwich, Connecticut, 06830 | ||
From: | Credit Suisse Capital LLC | |
Re: | Variable Prepaid Forward |
Transaction ID: GWR#01E
External ID: 54768628
Dear Mr. Fuller:
The purpose of this letter agreement (this Confirmation) is to confirm the terms and conditions of the transaction (the Transaction) entered into between us on the Trade Date specified below. This Confirmation constitutes a Confirmation as referred to in the Variable Prepaid Forward Agreement (the Agreement) between you (Counterparty) and Credit Suisse Capital LLC, a Delaware limited liability company, (CS Capital) dated as of March 8, 2004, with respect to certain Transactions as defined therein.
This Confirmation supplements, forms part of, and is subject to the Agreement. All provisions contained in the Agreement govern this Confirmation except as expressly modified below.
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General Terms: | ||||||||||
Trade Date: | 28 November 2011 | |||||||||
Scheduled Valuation Date: | 28 November 2012 (unless such date is not an Exchange Business Day, in which case the Scheduled Valuation Date shall be the next succeeding Exchange Business Day). | |||||||||
Selling Shareholder: | Counterparty | |||||||||
Forward Purchaser: | CS Capital | |||||||||
Issuer: | Genesee & Wyoming Inc. | |||||||||
Shares: | Class B common stock, par value $0.01 per share, of the Issuer (the Class B Common Stock), which is convertible on a one-to-one basis into share of Class A common stock, par value $0.01 per share, of the Issuer (Ticker symbol: GWR) (the Class A Common Stock). | |||||||||
Exchange of the Class A Common Stock: | New York Stock Exchange. For the avoidance of doubt, all references herein to the Exchange shall be deemed to refer to the Exchange of the Class A Common Stock | |||||||||
Base Number of Shares: | Initially 50,000 shares of Class B Common Stock, subject to adjustment. | |||||||||
Floor: | Initially 100% of Initial Price = $55.8458, subject to adjustment. | |||||||||
Cap: | Initially 130% of Initial Price = $ 72.5995, subject to adjustment. | |||||||||
Participation above Cap: | 0% | |||||||||
Initial Price: | $55.8458 | |||||||||
Prepaid Percentage: | 85.50% | |||||||||
Purchase Price: | $2,387,407.95 (Initial Price x Base Number of Shares x Prepaid Percentage). |
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Payment Date: | Three (3) Business Days after the later of (i) the day on which the Counterparty delivers to CS Capital (A) Transaction Documents executed by Counterparty, (B) the Notice of Conversion executed by the Counterparty and the Issuer, (C) the Issuer Acknowledgement executed by the Issuer substantially in the form of Annex A hereto are received by CS Capital, and (D) the waiver of the Class B Stockholders Agreement dated as of November 23, 2011 among the Executive Officers of Company (as defined therein), the Counterparty and certain Class B Common Stock shareholders, as amended and supplemented from time to time, each of (A) (D) in a form satisfactory to CS Capital, and (ii) the day on which CS Capital receives from Counterparty a number of shares of Class B Common Stock as Collateral equal to the number of Shares specified in the Pledge of Collateral provision below. | |||||||||
Valuation: | ||||||||||
Averaging Date Final Price: | The arithmetic mean of the Volume Weighted Average Prices per share of Class A Common Stock, as displayed on Bloomberg Page AQR for the Issuer, on each Averaging Date in respect of the period from 9:30 a.m. to 4:00 p.m. (New York City time) on such Averaging Dates, or if such Volume Weighted Average Price is not available, the arithmetic mean of the market values of one (1) share of Class A Common Stock on each such date as determined by the Calculation Agent. | |||||||||
Valuation Date: | Scheduled Valuation Date, subject to extension upon the occurrence of an Averaging Date Market Disruption. | |||||||||
Averaging Period: | A period consisting of (the Averaging Dates) three (3) Exchange Business Days prior to and including the Scheduled Valuation Date. | |||||||||
Averaging Date Market Disruption: | If (i) a Market Disruption Event occurs on an Averaging Date during the Averaging Period, then, for each such Averaging Date on which such an impairment occurs, Calculation Agent shall extend the Averaging Period and the Valuation Date by one (1) Exchange Business Day or (ii) a Suspension Period commences on an Averaging Date during the Averaging Period, then the Averaging Period shall be tolled until the end of such Suspension Period, and the Valuation Date shall be extended accordingly. |
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Suspension Period: | Any period during which CS Capital 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 CS Capital), for it to refrain from purchasing or selling shares of Class A Common Stock or Class B Common Stock.
CS Capital shall notify the Counterparty upon designating a Suspension Period and shall subsequently notify the Counterparty on the day CS Capital believes that it may resume purchasing shares of Class A Common Stock or Class B Common Stock. CS Capital need not communicate to the Counterparty the reason for CS Capitals exercise of its rights pursuant to this provision. | |||||||||
Settlement Terms: | ||||||||||
Settlement: | ||||||||||
Total Deliverable Number of Shares: | A number of Shares or shares of Class A Common Stock equal to the lesser of (a) the Base Number of Shares and (b) the Base Number of Shares multiplied by (x) the sum, determined as of the Valuation Date, of (i) the Floor (expressed as an amount) and (ii) the product of (a) one minus the Participation Above Cap and (b) any amount by which the Final Price exceeds the Cap (expressed as an amount); divided by (y) the Averaging Date Final Price. | |||||||||
Notice of Settlement: | CS Capital will send written notice of expiration of the Transaction to the Counterparty on or before the 30th Business Day prior to the Scheduled Valuation Date. | |||||||||
Net Stock Settlement: | Counterparty will deliver the Total Deliverable Number of Shares to CS Capital on the Share Delivery Date, unless Counterparty elects the Cash Settlement Option, in which case, in lieu of delivering Shares or shares of Class A Common Stock, Counterparty will pay the Cash Settlement Amount on the Cash Settlement Payment Date. | |||||||||
Share Delivery Date: | The third Exchange Business Day following the Valuation Date. |
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Cash Settlement Option; Eligible Contract Participant: | Counterparty will have the right to cash settle the Transaction; on the third Business Day following the Valuation Date (the Cash Settlement Payment Date) Counterparty shall pay to CS Capital an amount equal to the applicable Cash Settlement Amount; provided that Counterparty shall not have the right to cash settle the Transaction unless CS Capital has received written notice of Counterpartys intention to cash settle the Transaction on or before the 30th Business Day prior to the Scheduled Valuation Date.
Counterparty represents and warrants as of the date hereof and as of the date of any amendment, election or modification (including without limitation Optional Termination by Counterparty) to or under this Transaction or the Agreement that (i) it is an eligible contract participant as defined in Commodity Exchange Act, as amended; (ii) it is not in possession of any material, non-public information relating to the Issuer, the Shares or the shares of Class A Common Stock; and (iii) Counterparty is entering into this Transaction in order to manage the risk associated with an asset owned or a liability incurred, or reasonably likely to be owned or incurred, by Counterparty. | |||||||||
Cash Settlement Amount: | In respect of the Cash Settlement Payment Date, an amount in U.S. dollars, determined as of the Valuation Date, equal to the product of (i) the Total Deliverable Number of Shares multiplied by (ii) the Averaging Date Final Price. | |||||||||
Net Stock Settlement and Supplemental Share Delivery Requirements: |
If Counterparty elects the Net Stock Settlement and/or Supplemental Share Delivery, Counterparty covenants, represents and warrants that [(i) ]it will deliver to CS Capital only shares of Class A Common Stock or Class B Common Stock that are eligible for immediate resale by Counterparty under Rule 144 or Rule 145[ and (ii) it (and each person whose sales of shares of Class A Common Stock or Class B Common Stock would be aggregated with Counterpartys sales under Rule 144(e)(3)) will not sell any shares of Class A Common Stock or Class B Common Stock during the three-month period ending on the third Exchange Business Day following the Scheduled Valuation Date]. | |||||||||
Adjustments: | ||||||||||
Total Return Option | Inapplicable | |||||||||
Fixed Dividend Level: | USD 0.00 (zero) per share of Class A Common Stock |
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Dividend Pass-Through: | If as of the earlier of (x) the last Exchange Business Day of any calendar quarter during the term of this Transaction and (y) the Scheduled Valuation Date, as determined by the Calculation Agent, there has been a dividend paid by the Issuer in respect of the Class A Common Stock consisting of cash in U.S. dollars per share or the value of any non-cash assets (other than additional shares of Class A Common Stock), as determined by the Calculation Agent (the Actual Dividend), and such Actual Dividend is greater than the Fixed Dividend Level, Seller agrees to pay to Buyer within two (2) Business Days an amount in U.S. Dollars in immediately available funds by wire transfer equal to the product of the Base Number of Shares multiplied by the difference between the Actual Dividend and the Fixed Dividend Level (the Excess Pass-Through Amount).
If the Actual Dividend is received from the Issuer by Seller, Seller shall pay the Excess Pass-Through Amount, if any, to Buyer within two (2) Business Days after receipt of the Actual Dividend.
If the Actual Dividend is received from the Issuer by the Buyer, (a) in the event that the Actual Dividend is greater than the Fixed Dividend, the Seller agrees that in fulfillment of Sellers obligation hereunder, Buyer may retain the Excess Pass-Through Amount from any dividend payment received by Buyer from the Issuer and shall pay to Seller the remainder of such dividend payment (if any), and (b) in the event that the Fixed Dividend is greater than the Actual Dividend, the Buyer agrees to pay the Actual Dividend to Seller within two Business Days after receipt of the Actual Dividend. | |||||||||
For the avoidance of doubt: | ||||||||||
(a) |
in making the determination for a period ending on the Scheduled Valuation Date, the Calculation Agent shall treat the ex dividend date of any cash dividend declared during such period but not yet paid as the payment date of such cash dividend; and | |||||||||
(b) |
Buyer shall have no payment obligation pursuant to this Dividend Pass-Through provision for a period ending on the Scheduled Valuation Date unless an ex dividend date occurred during such period for an Actual Dividend. |
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Method of Adjustment: | Calculation Agent Adjustment. | |||||||||
Extraordinary Events: | ||||||||||
Consequences of Merger Events
or Tender Offers: |
||||||||||
(a) | Share-for-Share | Additional Termination Event, Counterparty will be the Affected Party, provided that, upon mutual agreement between CS Capital and Counterparty, this Transaction may be amended or recalculated in terms of New Shares and shall otherwise continue in accordance with the terms hereof. | ||||||||
(b) | Share-for-Other | Additional Termination Event, Counterparty will be the Affected Party. | ||||||||
(c) | Share-for-Combined | Additional Termination Event, Counterparty will be the Affected Party. | ||||||||
In the event that the transaction is terminated as the result of a Tender Offer, payments in respect thereof shall be determined pursuant to Section 6 of the Agreement, with references therein to Merger Event applicable to the Tender Offer. Tender Offer means an a tender, takeover or exchange offer, or any solicitation or other proposal or event, that results in an entitys or a persons acquiring or having the right to obtain greater than 10% and less than 100% of the outstanding voting shares or the shares of Class A Common Stock, as determined by the Calculation Agent. | ||||||||||
Additional Termination Events: | ||||||||||
Loss of Economic Stock-Borrow: | Additional Termination Event, Counterparty will be the Affected Party; provided that economic stock-borrow shall mean the availability of sufficient shares of Class A Common Stock in the stock-borrow market at a cost of 40 basis points per annum; provided, further, that if Counterparty reimburses (on a current basis) CS Capital for any cost of stock-borrow in excess of 40 basis points per annum, such event shall not be an Additional Termination Event. | |||||||||
Hedging Impairment: | An Additional Termination Event will occur if, in connection with CS Capitals hedge, CS Capitals ability to purchase or sell shares of Class A Common Stock is significantly impaired; Counterparty will be the Affected Party. | |||||||||
Optional Termination by Counterparty: | At any time, Counterparty may terminate the Transaction in whole upon 30 Business Days prior written notice to CS Capital specifying the date of the Optional Termination. |
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Collateral: | ||||||||
Pledge of Collateral: | On the Trade Date, Counterparty will pledge a quantity of Shares or shares of Class A Common Stock to CS Capital in accordance with Section 10 of the Agreement. Throughout the term of the Transaction the Counterparty shall maintain a number of Shares or shares of Class A Common Stock in the Collateral Account equal to the Base Number of Shares, as adjusted. | |||||||
Release of Pledged Collateral: | On the Share Delivery Date, CS Capital will release the Collateral to Counterparty against receipt from Counterparty of the Total Deliverable Number of Shares; provided that, if Counterparty elects the Cash Settlement Option, the Pledged Securities will be released to Counterparty against payment to CS Capital of the Cash Settlement Amount. | |||||||
Additional Representations, Warranties and Covenants: | ||||||||
Insider: | Because Counterparty is an affiliate (as defined in Rule 144 of the Securities Act of 1933, as amended) of the Issuer, the Pledged Securities are restricted stock that can only be offered and sold pursuant to an effective registration statement, Rule 144 or other applicable exemption. |
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Holding Period; Restrictions on Transfer: |
Counterparty represents and warrants to CS Capital that (i) Counterpartys holding period for the Shares pledged hereunder, determined in accordance with Rule 144, commenced more than six months prior to the date hereof, and the Issuer is in compliance with Rule 144(c)(1) and (ii) other than the restrictions on transfer imposed by the provisions of the Issuers Restated Certificate of Incorporation, such Shares are, or will, at the time of delivery to CS Capital pursuant to the terms of this Transaction, be free of any Transfer Restrictions. Counterparty represents and warrants that the restrictions on transfer imposed by the Class B Stockholders Agreement dated as of May 20, 1996 among the Executive Officers of Company (as defined therein), the Counterparty and certain Class B Common Stock shareholders, as amended and supplemented from time to time, and the Letter Agreement dated as of December 12, 2000 among the Company, the Counterparty and The 1818 Fund III, L.P., as amended and supplemented from time to time, have been waived (each a Waiver) by the parties to such agreements. | |||||||||
Manner of Hedging: | CS Capital represents that it will execute any initial hedging in shares of Class A Common Stock in a manner consistent with paragraph (f) of Rule 144. Consistent with the foregoing, Counterparty agrees and covenants with CS Capital that it (x) will not sell any shares of Class A Common Stock or Class B Common Stock pursuant to Rule 144 and (y) will cause each person whose sales of shares of Class A Common Stock or Class B Common Stock would be aggregated with Counterpartys sales under Rule 144(e)(3) not to sell any shares of Class A Common Stock or Class B Common Stock, in each case, without the prior written consent of CS Capital. | |||||||||
Other Provisions: | ||||||||||
Calculation Agent: | CS Capital, whose determinations and calculations shall be binding absent manifest error. | |||||||||
Default Rate: | Cost of funding plus 2.00%. | |||||||||
Additional Provisions | ||||||||||
The date and time of this Transaction will be furnished by CS Capital to Counterparty upon written request |
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CS Capital will furnish to Counterparty upon written request a statement as to the source and amount of any remuneration received or to be received by CS Capital in connection with any transaction | ||||||||||
CS Capital is not a member of SIPC (Securities Investor Protection Corporation). | ||||||||||
Matters Relating to CS Securities (USA) LLC: | ||||||||||
CS Securities (USA) LLC shall act as agent for CS and Counterparty in connection with the Transaction.
(a) CS Securities (USA) LLC has no obligation, by guaranty, endorsement or otherwise, with respect to performance of CS Capitals and Counterpartys obligations. | ||||||||||
(b) CS Capital represents that it is an OTC derivatives dealer as such term is defined in the Securities Exchange Act and is an affiliate of a broker-dealer, CS LLC, that is registered with and fully-regulated by the Securities and Exchange Commission (SEC). CS Securities (USA) LLC acted as CS Capitals agent in effecting this Transaction. | ||||||||||
Account Details: | ||||||||||
Payments to Counterparty: | To be advised in writing | |||||||||
Payments to CS Capital: | Pay to:
ABA Number:
For A/C of: |
|||||||||
Account #: | ||||||||||
Deliveries to CS Capital: | Credit Suisse Securities (USA) LLC DTC: Ref a/c: |
10
Securities Contract: | The parties hereto agree and acknowledge that each of CS and the Custodian (as defined in Section 4 below) is a financial institution, swap participant and financial participant within the meaning of Sections 101(22), 101(53C) and 101(22A) of Title 11 of the United States Code (the Bankruptcy Code), that the Custodian is acting as agent and custodian for CS in connection with the Transaction and that CS is a customer of the Custodian within the meaning of Section 741(2) of the Bankruptcy Code. The parties hereto further agree and acknowledge (A) that this Confirmation is (i) a securities contract, as such term is defined in Section 741(7) of the Bankruptcy Code, with respect to which each payment and delivery hereunder is a settlement payment, as such term is defined in Section 741(8) of the Bankruptcy Code, and (ii) a swap agreement, as such term is defined in Section 101(53B) of the Bankruptcy Code, with respect to which each payment and delivery hereunder is a transfer, as such term is defined in Section 101(54) of the Bankruptcy Code, and (B) that CS is entitled to the protections afforded by, among other sections, Sections 362(b)(6), 362(b)(17), 546(e), 546(g), 555 and 560 of the Bankruptcy Code. | |||||||||
Regulatory Disclosure Representation: | The Counterparty represents that it has received from CS Capital the Risk Disclosure Statement regarding OTC Derivative Products and Notice of Regulatory Treatment and has reviewed, signed and returned a copy of such document to CS Capital. |
11
Please confirm that the foregoing correctly sets forth the terms of our agreement by signing and returning this Confirmation.
Yours faithfully, | ||
Credit Suisse International | ||
By: | /s/ Anthony Fisher |
Name: | Anthony Fisher | |
Title: | Director | |
Credit Suisse Securities (USA) LLC, acting solely in its capacity as agent |
By: | /s/ Jacqueline Bonilla |
Name: | Jacqueline Bonilla | |
Title: Vice President |
Confirmed as of the date first written above: | ||
MORTIMER B. FULLER, III | ||
By: | /s/ Mortimer B. Fuller, III |
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