0000913849-14-000385.txt : 20141205 0000913849-14-000385.hdr.sgml : 20141205 20141205172636 ACCESSION NUMBER: 0000913849-14-000385 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20141205 DATE AS OF CHANGE: 20141205 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: PETSMART INC CENTRAL INDEX KEY: 0000863157 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-RETAIL STORES, NEC [5990] IRS NUMBER: 943024325 STATE OF INCORPORATION: DE FISCAL YEAR END: 0201 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-43349 FILM NUMBER: 141270438 BUSINESS ADDRESS: STREET 1: 19601 N 27TH AVE CITY: PHOENIX STATE: AZ ZIP: 85027 BUSINESS PHONE: 6235806100 MAIL ADDRESS: STREET 1: 19601 N 27TH AVENUE CITY: PHOENIX STATE: AZ ZIP: 85027 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: LONGVIEW ASSET MANAGEMENT, LLC CENTRAL INDEX KEY: 0001086477 IRS NUMBER: 364245844 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 222 N LASALLE STREET STREET 2: SUITE 2000 CITY: CHICAGO STATE: IL ZIP: 60601 BUSINESS PHONE: 3122366300 MAIL ADDRESS: STREET 1: 222 N LASALLE STREET STREET 2: SUITE 2000 CITY: CHICAGO STATE: IL ZIP: 60601 FORMER COMPANY: FORMER CONFORMED NAME: LONGVIEW MANAGEMENT GROUP LLC DATE OF NAME CHANGE: 19990513 SC 13D/A 1 sc13da_120314.htm SCHEDULE 13D/A sc13da_120314.htm
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No.  4)*
 
PetSmart, Inc.
(Name of Issuer)
 
Common Stock, $0.0001 par value per share
(Title of Class of Securities)
 
716768106
(CUSIP Number)
 
Kent Lawson
Longview Asset Management, LLC
222 N. LaSalle St., Suite 2000
Chicago, Illinois 60601
(312) 236-6300

Michael A. Nemeroff, Esq.
Vedder Price P.C.
222 N. LaSalle Street
Chicago, Illinois 60601
(312) 609-7500
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
 
December 5, 2014
(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 §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o
 
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 person’s 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. 716768106
 
1.
Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only).
 
Longview Asset Management, LLC / 36-4245844
2.
Check the Appropriate Box if a Member of a Group (See Instructions)
(a)
  o
(b)
  o
3.
SEC Use Only
  
4.
Source of Funds (See Instructions):  OO
 
5.
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
 o
6.
Citizenship or Place of Organization
Delaware
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
7. Sole Voting Power
—
  
8. Shared Voting Power
8,967,016
  
9. Sole Dispositive Power
—
  
10. Shared Dispositive Power
8,967,016
  
11.
Aggregate Amount Beneficially Owned by Each Reporting Person
8,967,016
12.
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
 o
13.
Percent of Class Represented by Amount in Row (11)
9.0%
14.
Type of Reporting Person (See Instructions):  IA
 
 
Page 2
 
CUSIP No. 716768106
 
1.
Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only).
 
James A. Star
2.
Check the Appropriate Box if a Member of a Group (See Instructions)
(a)
  o
(b)
  o
3.
SEC Use Only
  
4.
Source of Funds (See Instructions):  OO
 
5.
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
 o
6.
Citizenship or Place of Organization
United States
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
7. Sole Voting Power
—
  
8. Shared Voting Power
**
  
9. Sole Dispositive Power
—
  
10. Shared Dispositive Power
**
  
11.
Aggregate Amount Beneficially Owned by Each Reporting Person
**
12.
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
 o
13.
Percent of Class Represented by Amount in Row (11)
**%
14.
Type of Reporting Person (See Instructions):  IN
 
**Reporting person owns less than 5%.
 
Page 3
 
CUSIP No. 716768106
 
1.
Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only).
 
H. Debra Levin, as Trustee of the Edward Memorial Trust
2.
Check the Appropriate Box if a Member of a Group (See Instructions)
(a)
  o
(b)
  o
3.
SEC Use Only
  
4.
Source of Funds (See Instructions):  OO
 
5.
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
 o
6.
Citizenship or Place of Organization
United States
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
7. Sole Voting Power
—
  
8. Shared Voting Power
**
  
9. Sole Dispositive Power
—
  
10. Shared Dispositive Power
**
  
11.
Aggregate Amount Beneficially Owned by Each Reporting Person
**
12.
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
 o
13.
Percent of Class Represented by Amount in Row (11)
**%
14.
Type of Reporting Person (See Instructions):  OO
 
**Reporting person owns less than 5%.
 
Page 4
 

This Amendment No. 4 to Schedule 13D (the “Schedule 13D”) amends and supplements that certain Schedule 13D initially filed on May 29, 2009 (the “Original Schedule 13D”), as amended and supplemented by Amendment No. 1 to Schedule 13D filed on February 5, 2014, Amendment No. 2 to Schedule 13D filed on May 28, 2014, and Amendment No. 3 to Schedule 13D filed on July 7, 2014 (the Original Schedule 13D as amended by Amendment Nos. 1 through 3 is referred to herein as the “Schedule 13D”).

Unless otherwise defined herein, all capitalized terms used herein shall have the meanings given to them in the Schedule 13D.  Except as amended or supplemented below, the information set forth in the Schedule 13D remains unchanged.

ITEM 2.  IDENTITY AND BACKGROUND

Item 2 is hereby amended to read as follows:

This statement is being filed on behalf of (a) Longview Asset Management, LLC (“Longview”); (b) James A. Star (“Mr. Star”); and (c) H. Debra Levin, as Trustee of the Edward Memorial Trust (“Ms. Levin” and, together with Longview and Mr. Star, the “Reporting Persons”).

Longview’s principal business is managing investment portfolios for its clients (“Longview Clients”).  The principal place of business and principal offices of Longview are located at 222 N. LaSalle Street, Suite 2000, Chicago, Illinois 60601.  Certain Longview Clients hold shares of Common Stock of PetSmart, Inc. (the “Issuer”).  Pursuant to investment advisory agreements, Longview has voting and dispositive power over the Common Stock held in Longview Client accounts and, accordingly, is deemed to be the beneficial owner, for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of the Common Stock held in such accounts.  Except for such deemed beneficial ownership, Longview does not own any Common Stock or other securities of the Issuer.

The executive officers of Longview, in addition to Mr. Star, and their present occupations are as follows: (a) Dan L. Drexler, First Vice President; (b) Kent Lawson, Vice President and Chief Administrative Officer; (c) Kirk Rose, Vice President and Chief Finance Officer; and (d) Aaron Rappaport, Vice President and Chief Compliance Officer.

Mr. Star is the President and Chief Executive Officer of Longview.  His principal place of business and principal office is located at 222 N. LaSalle Street, Suite 2000, Chicago, Illinois 60601.

Ms. Levin serves as trustee of the Edward Memorial Trust and is a partner of Seyfarth Shaw LLP, a Chicago, Illinois-based law firm.  Her place of business and principal office is located at 131 South Dearborn Street, Suite 2400, Chicago, Illinois 60603. The Edward Memorial Trust is the sole Managing Member of Longview, which has delegated its authority to manage the business and affairs of Longview to the officers of Longview.

During the last five years, none of the Reporting Persons nor any executive officer or director of Longview has been convicted in a criminal proceeding (excluding traffic violations and similar misdemeanors). During the last five years, none of the Reporting Persons nor any executive officer or director of Longview has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction that resulted in a judgment, decree or final order (i) enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or (ii) finding a violation with respect to such laws.
 
ITEM 4.  PURPOSE OF TRANSACTION

Item 4 is hereby supplemented by the addition of the following disclosure:

On August 19, 2014, the Issuer announced that it would “explore strategic alternatives ... to maximize value for shareholders, including a possible sale of the Company” (a “Transaction”).  In light of recent press reports that an announcement of a Transaction may be imminent, Longview adopted a pre-arranged trading program on behalf of its charitable foundation clients (the “Plan”).  The Plan, designed to comply with Rule 10b5-1(c), provides for the sale of up to 1,542,425 shares of Common Stock held by such charitable entities in the event of an announcement of a Transaction at a price in excess of a specific target level.  A copy of the Plan is filed as Exhibit 99.2 to this Schedule 13D and is incorporated herein by reference.

The Plan does not cover the 7,424,591 shares of Common Stock held by other Longview Clients.  Consistent with the letter attached to its July 7th Schedule 13D/A filing and subsequent communications with the Issuer, Longview remains willing to roll all or part of these shares into a Transaction, dependending on the parties and terms involved.

 
ITEM 5.  INTEREST IN SECURITIES OF THE ISSUER

Items 5(a) and 5(b) are hereby amended to read as follows:

(a) - (b) (i) By virtue of its management of Longview Client accounts, Longview may be deemed to beneficially own 8,967,016 shares of Common Stock as of December 5, 2014, representing approximately 9.0% of the outstanding shares of Common Stock, calculated in accordance with Rule 13d-3 under the Exchange Act (based upon 99,411,312 shares of Common Stock issued and outstanding as of November 14, 2014 as reported by the Issuer in its Quarterly Report on Form 10-Q for the quarterly period ended November 2, 2014).  Longview shares the power to vote and dispose of the shares of Common Stock that it may be deemed to beneficially own.
 
(ii) Mr. Star and Ms. Levin, as sole trustee of the Edward Memorial Trust, each beneficially owns less than 5.0% of the outstanding shares of Common Stock, calculated in accordance with Rule 13d-3 under the Exchange Act.  See section 5(e) below.

Item 5(c) is hereby supplemented to include the following information:

(c)  The following are transactions in the Common Stock that were effected during the past sixty days by the Reporting Persons:
 
Date
Nature of Transaction
No. of Shares
Price (Per Share)
10/15/2014
Purchase
25,000
$64.86
10/16/2014
Purchase
13,154
$64.99
 
The shares of the Issuer were acquired by Longview on behalf of Longview Clients in open market transactions using cash on hand.
 
Item 5(e) is hereby amended as follows:

(e)  As a result of the formation by Longview of an investment committee (the “Committee”) with the power to direct the voting and disposition of the Common Stock held in the Longview Client accounts, Mr. Star, in his capacity as President of Longview, is no longer deemed to be a beneficial owner of more than five percent of the outstanding shares of Common Stock.  As a result of certain changes relating to the management of Longview, Ms. Levin, in her capacity as sole trustee of the Edward Memorial Trust, is no longer deemed to be a beneficial owner of more than five percent of the outstanding shares of Common Stock.

ITEM 6.  CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER

Item 6 is hereby supplemented to include the information set forth under Item 4 above with respect to the Plan.

ITEM 7.  MATERIAL TO BE FILED AS EXHIBITS

EXHIBIT NO.
 
DESCRIPTION
 
99.1
Power of Attorney by H. Debra Levin, individually and in her capacity as trustee of the Edward Memorial Trust.
99.2
Rule 10b5-1 Sales Plan between Longview and Morgan Stanley & Co. LLC.
99.3
 Joint Filing Agreement, dated as of February 4, 2014, by and among the Reporting Persons (incorporated by reference to Schedule 13D Amendment No. 1 filed February 5, 2014).
 
 
Page 5
 
 
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
 
December 5th, 2014

 
 
 LONGVIEW ASSET MANAGEMENT, LLC
 
        
 By:
/s/Aaron Rappaport
    
 
  
 
Aaron Rappaport, Vice President and Chief Compliance Officer
    
 
  
 
 
    
 
  
 
 
        
/s/James A. Star    
 
 
James A. Star  
 
 
 
 
   
 
 
 
       
/s/Aaron Rappaport    
 
 
Aaron Rappaport, as attorney-in-fact for
H. Debra Levin, as trustee of the Edward Memorial Trust
  
 
 
 
 
   
 
 
 
 
Page 6
 
 

 
 

 
 EX-99.1 2 ex99-1.htm POWER OF ATTORNEY ex99-1.htm
EXHIBIT 99.1
 
 
 
POWER OF ATTORNEY

Know all by these presents, that the undersigned hereby constitutes and appoints each of Kent Lawson, Aaron Rappaport and Angela Newhouse signing singly, the undersigned’s true and lawful attorney-in-fact to:
 
(1)
prepare and execute for and on behalf of the undersigned, in the undersigned’s individual capacity and as trustee of the Edward Memorial Trust (the “Trust”), any Schedule 13D or Schedule 13G, any and all amendments thereto and any joint filer agreements in connection therewith, with respect to the undersigned’s and the Trust’s beneficial ownership in equity securities (the “Subject Securities”) of a class specified in paragraph (i) of Rule 13d-1 under the Securities Exchange Act of 1934, as amended (the “1934 Act”);
 
(2)
prepare and execute for and on behalf of the undersigned, in the undersigned’s individual capacity and as trustee of the Trust, any reports or statements required by Section 16(a) of the 1934 Act and the rules thereunder (“Section 16 Reports”), and any amendments thereto, related to the Subject Securities, in accordance with Section 16(a) of the 1934 Act and the rules thereunder;
 
(3)
do and perform any and all acts for and on behalf of the undersigned that may be necessary or desirable to complete and execute any such Schedules 13D and 13G and Section 16 Reports, and any amendments thereto, and file or cause to be filed such forms with the United States Securities and Exchange Commission and any stock exchange or similar authority; and
 
(4)
take any other action of any type whatsoever in connection with the foregoing which, in the opinion of such attorney-in-fact, may be of benefit to, in the best interest of, or legally required by, the undersigned, including in the undersigned’s capacity as trustee of the Trust, it being understood that the documents executed by such attorney-in-fact on behalf of the undersigned pursuant to this Power of Attorney shall be in such form and shall contain such terms and conditions as such attorney-in-fact may approve in such attorney-in-fact’s discretion.
 
The undersigned hereby grants to each such attorney-in-fact full power and authority to do and perform any and every act and thing whatsoever requisite, necessary, or proper to be done in the exercise of any of the rights and powers herein granted, as fully to all intents and purposes as the undersigned might or could do if personally present, with full power of substitution or revocation, hereby ratifying and confirming all that such attorney-in-fact, or such attorney-in-fact’s substitute or substitutes, shall lawfully do or cause to be done by virtue of this power of attorney and the rights and powers herein granted.  The undersigned acknowledges that the foregoing attorneys-in-fact, in serving in such capacity at the request of the undersigned, in the undersigned’s capacity as trustee of the Trust, are not assuming any of the undersigned’s responsibilities to comply with Section 13(d) and Section 16 of the 1934 Act. This Power of Attorney shall remain in full force and effect until revoked by the undersigned, in the undersigned’s capacity as trustee of the Trust, in a signed writing delivered to the foregoing attorneys-in-fact.

IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney to be executed as of this 3rd day of December, 2014.

 
/s/H. Debra Levin                                                                                   
H. Debra Levin, individually and as trustee of the Edward Memorial Trust
EX-99.2 3 ex99-2.htm SALES PLAN ex99-2.htm
EXHIBIT 99.2
 
Sales Plan
 
This Sales Plan dated December 5, 2014 (this “Sales Plan”) is entered into between Longview Asset Management, LLC (“Seller”) and Morgan Stanley & Co. LLC (“Morgan Stanley”), acting as agent for Seller, for the purpose of establishing a trading plan that complies with the requirements of Rule 10b5-1(c)(1) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) for the disposition of Common Stock, $.0001 Par Value (the “Stock”), of PetSmart, Inc. (the “Issuer”).
 
A.           Seller’s Representations, Warranties and Covenants
 
1.           As of the date hereof, Seller is not aware of any material nonpublic information concerning the Issuer or its securities.  Seller is entering into this Sales Plan in good faith and not as part of a plan or scheme to evade compliance with the federal securities laws.
 
2.           The securities to be sold under this Sales Plan are owned free and clear by clients of Seller and are not subject to any agreement granting any pledge, lien, mortgage, hypothecation, security interest, charge, option or encumbrance or any other limitation on disposition, including any such limitation imposed by Rules 144 or 145 under the Securities Act of 1933, as amended (the “Securities Act”).
 
3.           While this Sales Plan is in effect, Seller agrees not to enter into or alter any corresponding or hedging transaction or position with respect to the Stock (including, without limitation, with respect to any securities convertible or exchangeable into the Stock) and agrees not to alter or deviate from the terms of this Sales Plan.
 
4.           Seller agrees that it shall not, directly or indirectly, communicate any information relating to the Stock or the Issuer to any employee of Morgan Stanley or its affiliates who is involved, directly or indirectly, in executing this Sales Plan at any time while this Sales Plan is in effect.  Any notice given to Morgan Stanley pursuant to this Sales Plan shall be given in accordance with paragraph D.5 below.
 
5.           The execution and delivery of this Sales Plan by Seller and the transactions contemplated by this Sales Plan will not contravene any provision of applicable law, the applicable constitutive documents of Seller, any agreement or other instrument binding on Seller or any of its affiliates or any judgment, order or decree of any governmental body, agency or court having jurisdiction over Seller or its affiliates.
 
 
 
 
 
 
6.           Seller has consulted with its own advisors as to the legal, tax, business, financial and related aspects of, and has not relied upon Morgan Stanley or any person affiliated with Morgan Stanley in connection with, Seller’s adoption and implementation of this Sales Plan.  Seller acknowledges that Morgan Stanley is not acting as a fiduciary or an advisor for Seller.
 
7.           Seller represents that it is not an “employee benefit plan” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, or a “plan” as defined under Section 4975(e) of the Internal Revenue Code of 1986, as amended, or an entity whose underlying assets include the assets of any such plan by reason of such a plan's investment in such entity.
 

 
B.           Implementation of the Plan
 
1.           Seller hereby appoints Morgan Stanley to sell shares of Stock pursuant to the terms and conditions set forth below and in Schedule I hereto.  Subject to such terms and conditions, Morgan Stanley hereby accepts such appointment.
 
2.           Subject to the terms set forth in Schedule I, Morgan Stanley is authorized to begin selling Stock pursuant to this Sales Plan on the first full trading day after an authorized public announcement by the Issuer that it has entered into a definitive agreement for the sale of the company or substantially all its assets (a “Transaction”), a copy of which announcement shall be forwarded to Morgan Stanley by Seller, and shall cease selling Stock on the earliest to occur of (i) the date on which Morgan Stanley is required to suspend or terminate sales pursuant to paragraph C.1 below, (ii) the date on which Morgan Stanley receives notice of the commencement or impending commencement of any proceedings in respect of or triggered by Seller’s bankruptcy or insolvency, (iii) the date of consummation of a Transaction and (iv) the date that the aggregate number of shares of Stock sold pursuant to this Sales Plan reaches 1,542,425 shares (the “Total Sale Amount”) (such period, the “Plan Period”).
 
4.           Morgan Stanley shall not sell Stock hereunder at any time when:
 
(i)           Morgan Stanley, in its sole discretion, has determined that it is prohibited from doing so by a legal, contractual or regulatory restriction applicable to it or its affiliates or to Seller, its clients or its affiliates (other than any such restriction relating to Seller’s possession or alleged possession of material nonpublic information about the Issuer or the Stock); or
 
(ii)           Morgan Stanley has received notice from Seller in accordance with paragraph C.1 below.
 
 
 
 
 
 
5.           (a)           Morgan Stanley shall in no event effect any sale under this Sales Plan if the Stock to be sold is not in an account at Morgan Stanley in the name of and for the benefit of Seller or its clients  (the “Plan Account”).
 
(b)           To the extent that any Stock remains in the Plan Account after the end of the Plan Period or upon termination of this Sales Plan, Morgan Stanley agrees to return such Stock, or any merger or similar consideration received in connection with the consummation of a Transaction promptly to Seller.
 
6.           Morgan Stanley may sell Stock on any national securities exchange, in the over-the-counter market, on an automated trading system or otherwise.
 
C.           Termination
 
1.  (a)           This Sales Plan may not be suspended or terminated prior to the end of the Plan Period, except that it may be suspended or terminated at any time by prior written notice from Seller sent to Morgan Stanley’s compliance office by overnight mail and by facsimile at the address and fax number set forth in paragraph D.5 below and received by Morgan Stanley’s compliance office at least one day prior to the date on which this Sales Plan is to be suspended or terminated; provided, however, that in the case of a suspension only, Seller must deliver to Morgan Stanley a certificate of Seller dated as of the date of the notice representing that, as of the date thereof, Seller is not aware of any material nonpublic information concerning the Issuer or its securities or that the suspension is due to a legal impediment on Seller’s ability to sell the Stock.
 
(b)           If such notice is made with respect to a suspension, rather than a termination, it shall indicate the anticipated duration of the restriction, but shall not include any other information about the nature of the restriction or its applicability to Seller and shall not in any way communicate any material nonpublic information about the Issuer or its securities to Morgan Stanley.  Morgan Stanley shall resume sales under this Sales Plan promptly after receipt of notice from Seller that sales may resume.
 
2.           Seller agrees that Morgan Stanley will execute the Sales Plan in accordance with its terms and will not be required to suspend or terminate any sales of the Stock unless Seller notifies Morgan Stanley of its intention to suspend or terminate the Sales Plan in accordance with the provisions of paragraph C.1.
 
D.           General
 
1.           Proceeds from each sale of Stock effected under the Sales Plan will be delivered to the accounts to be specified by Seller on a normal three-day settlement basis less any commission, commission equivalent, mark-up or
 
 
 
 
 
 
differential and other expenses of sale to be paid to Morgan Stanley, provided that any commission hereunder shall be $0.05 per share of the Stock sold.
 
2.     [Reserved]
 
3.           Seller and Morgan Stanley acknowledge and agree that this Agreement is a “securities contract,” as such term is defined in Section 741(7) of Title 11 of the United States Code (the “Bankruptcy Code”), entitled to all the protections given to such contracts under the Bankruptcy Code.
 
4.           This Sales Plan may be amended by Seller only upon the written consent of Morgan Stanley and receipt by Morgan Stanley of a certificate signed by Seller dated as of the date of such amendment certifying that the representations and warranties of Seller contained in this Sales Plan are true at and as of the date of such certificate as if made at and as of such date.
 
5.           (a)           All notices to Morgan Stanley under this Agreement shall be given to Morgan Stanley’s compliance office by fax and certified mail as specified below:
 
     Gard Krause
     Morgan Stanley & Co. LLC
     Compliance Department
     1585 Broadway, 5th Floor
     New York, NY 10036
     Facsimile:  (212) 507-8135

     with a copy to:
 
     Joshua Birbach
     Morgan Stanley & Co. LLC
     Legal Department
     1221 Avenue of the Americas, 34th Floor
     New York, NY 10020
     Facsimile:  (212) 507-8943

(b)   Morgan Stanley will provide notification of all sales of Stock under this Sales Plan to Seller by e-mail at the addresses to be specified by Seller by 6:00 p.m. (ET) on the date of execution on a best efforts basis, but in any event, no later than 12:00 p.m. (ET) on the following business day. Seller agrees to notify Morgan Stanley in writing of any changes to the contact information provided.  In addition all other notices to Seller under this Sales Plan shall be given to the Seller by e-mail, facsimile or overnight mail as follows:
 
 
 
 
 
 
     Kent Lawson
     Longview Asset Management, LLC
     222 N. LaSalle St., Suite 2000
     Chicago, Illinois 60601
     Facsimile 312 395-7072
 
     With a copy to:

     Michael A. Nemeroff, Esq.
     Vedder Price P.C.
     222 N. LaSalle Street
     Chicago, Illinois 60601
     Facsimile:  312 609-5005

 
 

6.           Seller’s rights and obligations under this Sales Plan may not be assigned or delegated without the written permission of Morgan Stanley.
 
7.           This Sales Plan may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
 
8.           If any provision of this Sales Plan is or becomes inconsistent with any applicable present or future law, rule or regulation, that provision will be deemed modified or, if necessary, rescinded in order to comply with the relevant law, rule or regulation.  All other provisions of this Sales Plan will continue and remain in full force and effect.
 
9.           This Sales Plan shall be governed by and construed in accordance with the internal laws of the State of New York and may be modified or amended only by a writing signed by the parties hereto.
 

 
IN WITNESS WHEREOF, the undersigned have signed this Sales Plan as of the date first written above.
 
 
       LONGVIEW ASSET MANAGEMENT, LLC  
 
    
 
 
  
 
    
Name:
  
 
    
Title:
  
 
 
 
 
 
 
 
      Morgan Stanley & Co. LLC  
     
 
 
 
     
Name:
  
     
Title: