-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CsK181NLfZINGuKgyOvlJI9M9AJ+jlHXp9o3MimuIEM0QUGcaKm/4uC75YMbrsoG nuRq2AtfHLEGyCeTCbg6iQ== 0000950152-00-001144.txt : 20000216 0000950152-00-001144.hdr.sgml : 20000216 ACCESSION NUMBER: 0000950152-00-001144 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20000215 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: RF MICRO DEVICES INC CENTRAL INDEX KEY: 0000911160 STANDARD INDUSTRIAL CLASSIFICATION: SEMICONDUCTORS & RELATED DEVICES [3674] IRS NUMBER: 561733461 STATE OF INCORPORATION: NC FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-52447 FILM NUMBER: 546432 BUSINESS ADDRESS: STREET 1: 7625 THORNDIKE ROAD CITY: GREENSBORO STATE: NC ZIP: 27409-9421 BUSINESS PHONE: 9106641233 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: TRW INC CENTRAL INDEX KEY: 0000100030 STANDARD INDUSTRIAL CLASSIFICATION: MOTOR VEHICLE PARTS & ACCESSORIES [3714] IRS NUMBER: 340575430 STATE OF INCORPORATION: OH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 1900 RICHMOND RD CITY: CLEVELAND STATE: OH ZIP: 44124 BUSINESS PHONE: 2162917000 MAIL ADDRESS: STREET 1: 1900 RICHMOND ROAD CITY: CLEVELAND STATE: OH ZIP: 44124 SC 13D/A 1 TRW INC./RF MICRO DEVICES, INC. SC 13D/A 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 ---------- SCHEDULE 13D (RULE 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO 13d-2(a) (AMENDMENT NO. 13) RF Micro Devices, Inc. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock - -------------------------------------------------------------------------------- (Title of Class of Securities) 749941 10 0 - -------------------------------------------------------------------------------- (CUSIP Number) William B. Lawrence TRW Inc. 1900 Richmond Road, 3E Cleveland, Ohio 44124 (216) 291-7230 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) February 10, 2000 - -------------------------------------------------------------------------------- (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 which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box __. (Continued on following pages) (Page 1 of 8 Pages) 2 13D CUSIP NO. 749941 10 0 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) TRW Inc. ("TRW"), I.D. #34-0575430 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) --- (b) --- 3 SEC USE ONLY 4 SOURCE OF FUNDS WC, OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) --- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Ohio NUMBER OF 7 SOLE VOTING POWER 11,923,448 SHARES ---------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY ---------------------- EACH 9 SOLE DISPOSITIVE POWER 9,923,448 REPORTING ---------------------- PERSON WITH 10 SHARED DISPOSITIVE POWER 2,000,000* ---------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11,923,448 ---------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ---------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 14.9 percent 14 TYPE OF REPORTING PERSON CO *These shares are the subject of a series of agreements between TRW Inc. and Goldman, Sachs & Co. pursuant to which TRW has pledged 2,000,000 shares as collateral to secure its obligations under the agreements. The agreements are described at Item 6 of this Amendment No. 13 to Schedule 13D. (Page 2 of 8 Pages) 3 SCHEDULE 13D This Amendment No. 13 on Schedule 13D amends the beneficial ownership statement initially filed on February 12, 1998 on Schedule 13G, as amended by Amendment No. 1 on Schedule 13D filed on June 29, 1998, Amendment No. 2 on Schedule 13D filed on September 18, 1998, Amendment No. 3 on Schedule 13D filed on February 3, 1999, Amendment No. 4 on Schedule 13D filed on April 29, 1999, Amendment No. 5 on Schedule 13D filed on June 1, 1999, Amendment No. 6 on Schedule 13D filed on June 9, 1999, Amendment No. 7 on Schedule 13D filed on October 5, 1999, Amendment No. 8 on Schedule 13D filed on October 12, 1999, Amendment No. 9 on Schedule 13D filed on November 18, 1999, Amendment No. 10 on Schedule 13D filed on December 7, 1999, Amendment No. 11 on Schedule 13D filed on January 4, 2000 and Amendment No. 12 on Schedule 13D filed on January 25, 2000 (collectively, the "Schedule 13D"), pursuant to Rule 13d-1(d) under the Securities Exchange Act of 1934, as amended, by TRW Inc., an Ohio corporation ("TRW"). This statement is being filed to reflect (i) TRW's sale, in the aggregate, of 532,500 shares of common stock, no par value ("Common Stock"), of RF Micro Devices, Inc. ("RFMD"), executed in multiple trades between January 25, 2000 and February 4, 2000, in accordance with Rule 144 under the Securities Act of 1933, as amended, and (ii) the execution of a series of agreements on February 10, 2000, to sell up to 2,000,000 shares of Common Stock to Goldman, Sachs & Co. Unless otherwise defined herein, all capitalized terms used herein shall have the respective meanings given such terms in the Schedule 13D. Except as modified herein, there have been no other changes in the information previously reported in the Schedule 13D. Item 5. Interest in Securities of the Issuer. - ------ ------------------------------------ Paragraphs (a), (b), (c) and (d) of Item 5 of the Schedule 13D are amended by deleting them in their entirety and replacing them with the following: (a) TRW beneficially owns 11,923,448 shares of Common Stock. The number of shares of Common Stock beneficially owned by TRW represents 14.9 percent of the 79,809,699 shares of Common Stock outstanding as of February 1, 2000. The Directors and executive officers of TRW disclaim beneficial ownership of these shares. (b) TRW has sole voting power with respect to 11,923,448 shares. TRW has sole dispositive power with respect to 9,923,448 shares. The remaining 2,000,000 shares beneficially owned by TRW have been pledged as collateral to secure TRW's obligations under a series of agreements between TRW and Goldman, Sachs & Co. ("GS&Co."). See Item 6 of this Schedule 13D for a description of these agreements. (c) On January 25, 2000, TRW sold 32,500 shares of Common Stock of RFMD in four different trades as follows: - -------------------------------------------------------------------------------- NUMBER OF SHARES PRICE PER SHARE - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 10,000 $91.00 - -------------------------------------------------------------------------------- 10,000 91.00 - -------------------------------------------------------------------------------- 10,000 91.00 - -------------------------------------------------------------------------------- 2,500 91.00 - -------------------------------------------------------------------------------- The prices set forth above do not reflect selling commissions and/or fees of approximately .003 percent on each of these transactions. (Page 3 of 8 Pages) 4 On February 1, 2000, TRW sold an additional 105,000 shares of Common Stock of RFMD in eleven different trades as follows: - -------------------------------------------------------------------------------- NUMBER OF SHARES PRICE PER SHARE - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 15,000 $80.0000 - -------------------------------------------------------------------------------- 10,000 80.0000 - -------------------------------------------------------------------------------- 10,000 80.1250 - -------------------------------------------------------------------------------- 7,500 80.0000 - -------------------------------------------------------------------------------- 12,500 80.0000 - -------------------------------------------------------------------------------- 10,000 80.1250 - -------------------------------------------------------------------------------- 5,000 80.2500 - -------------------------------------------------------------------------------- 15,000 80.2500 - -------------------------------------------------------------------------------- 7,500 80.5000 - -------------------------------------------------------------------------------- 7,500 80.7500 - -------------------------------------------------------------------------------- 5,000 81.0000 - -------------------------------------------------------------------------------- The prices set forth above do not reflect selling commissions and/or fees of approximately .003 percent on each of these transactions. On February 2, 2000, TRW sold an additional 127,500 shares of Common Stock of RFMD in fifteen different trades as follows: - -------------------------------------------------------------------------------- NUMBER OF SHARES PRICE PER SHARE - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 15,000 $81.0000 - -------------------------------------------------------------------------------- 10,000 81.2500 - -------------------------------------------------------------------------------- 10,000 81.5000 - -------------------------------------------------------------------------------- 7,500 81.7500 - -------------------------------------------------------------------------------- 7,500 82.0000 - -------------------------------------------------------------------------------- 5,000 85.5000 - -------------------------------------------------------------------------------- 2,500 85.0000 - -------------------------------------------------------------------------------- 12,500 85.0000 - -------------------------------------------------------------------------------- 10,000 85.0000 - -------------------------------------------------------------------------------- 5,000 85.0000 - -------------------------------------------------------------------------------- 7,500 85.3750 - -------------------------------------------------------------------------------- 7,500 85.8750 - -------------------------------------------------------------------------------- 2,500 86.3750 - -------------------------------------------------------------------------------- 5,000 86.2500 - -------------------------------------------------------------------------------- 20,000 86.2500 - -------------------------------------------------------------------------------- The prices set forth above do not reflect selling commissions and/or fees of approximately .003 percent on each of these transactions. (Page 4 of 8 Pages) 5 On February 3, 2000, TRW sold an additional 250,000 shares of Common Stock of RFMD in twenty-two different trades as follows: - -------------------------------------------------------------------------------- NUMBER OF SHARES PRICE PER SHARE - -------------------------------------------------------------------------------- 10,000 $88.7500 - -------------------------------------------------------------------------------- 15,000 88.7500 - -------------------------------------------------------------------------------- 15,000 88.7500 - -------------------------------------------------------------------------------- 10,000 89.1250 - -------------------------------------------------------------------------------- 10,000 89.7500 - -------------------------------------------------------------------------------- 15,000 89.8750 - -------------------------------------------------------------------------------- 15,000 89.5000 - -------------------------------------------------------------------------------- 10,000 89.3750 - -------------------------------------------------------------------------------- 20,000 89.5000 - -------------------------------------------------------------------------------- 15,000 89.6875 - -------------------------------------------------------------------------------- 15,000 89.6250 - -------------------------------------------------------------------------------- 10,000 89.8750 - -------------------------------------------------------------------------------- 10,000 89.9375 - -------------------------------------------------------------------------------- 15,000 90.1250 - -------------------------------------------------------------------------------- 15,000 90.6250 - -------------------------------------------------------------------------------- 15,000 93.0000 - -------------------------------------------------------------------------------- 2,500 92.5000 - -------------------------------------------------------------------------------- 2,500 92.2500 - -------------------------------------------------------------------------------- 2,500 92.0000 - -------------------------------------------------------------------------------- 10,000 92.0000 - -------------------------------------------------------------------------------- 5,000 92.2500 - -------------------------------------------------------------------------------- 12,500 92.0000 - -------------------------------------------------------------------------------- The prices set forth above do not reflect selling commissions and/or fees of approximately .003 percent on each of these transactions. On February 4, 2000, TRW sold an additional 17,500 shares of Common Stock of RFMD in three different trades as follows: - -------------------------------------------------------------------------------- NUMBER OF SHARES PRICE PER SHARE - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2,500 $95.0000 - -------------------------------------------------------------------------------- 10,000 95.0000 - -------------------------------------------------------------------------------- 5,000 95.2500 - -------------------------------------------------------------------------------- The prices set forth above do not reflect selling commissions and/or fees of approximately .003 percent on each of these transactions. All of these shares were sold in accordance with Rule 144 under the Securities Act of 1933, as amended. Except for the foregoing, no transactions have been effected in the Common Stock of RFMD by TRW or, to the best knowledge of TRW, by its Directors and executive officers since the filing of Amendment No. 12 to this Schedule 13D on January 25, 2000. (d) With respect to the 2,000,000 shares of Common Stock that are pledged to GS&Co. as described in Item 6 of this Schedule 13D, upon any default by TRW, GS&Co. would have all of the rights with respect to the 2,000,000 pledged shares of Common Stock of a secured party (Page 5 of 8 Pages) 6 under the New York Uniform Commercial Code, including the right to receive dividends on the pledged shares and to sell or otherwise dispose of the shares. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect - ------- --------------------------------------------------------------------- to Securities of the Issuer. ---------------------------- Item 6 is amended by adding the following at the conclusion thereof: On February 10, 2000, TRW and GS&Co. entered into three agreements (the "Agreements"), pursuant to which TRW will sell, in the aggregate, up to 2,000,000 shares of Common Stock of RFMD to GS&Co. The precise maximum number of shares to be sold will be determined by the number of shares that GS&Co. is able to sell between February 10, 2000, and the 20th trading day thereafter (the "Last Sale Date"). Upon the earlier of the sale of 2,000,000 shares or the Last Sale Date, GS&Co. will notify TRW of the average price per share at which GS&Co. effected such sales (the "Agency Execution Price"). On the third business day after the Last Sale Date, GS&Co. will deliver to TRW: (a) in respect of the first contract (pursuant to which TRW will sell a maximum amount of 666,667 shares of Common Stock), 80.48 percent of the Agency Execution Price times the number of shares to be sold by TRW to GS&Co.; (b) in respect of the second contract (pursuant to which TRW will sell a maximum amount of 666,667 shares of Common Stock), 77.56 percent of the Agency Execution Price times the number of shares to be sold by TRW to GS&Co.; and (c) in respect of the third contract (pursuant to which TRW will sell a maximum amount of 666,666 shares of Common Stock), 74.72 percent of the Agency Execution Price times the number of shares to be sold by TRW to GS&Co.; in each case, as payment in full for all such shares to be sold by TRW to GS&Co. The termination date of each contract is as follows: (a) the first contract will terminate on February 10, 2003; (b) the second contract will terminate on August 11, 2003; and (c) the third contract will terminate on February 10, 2004. On the third business day following the termination date of each contract, respectively, TRW will deliver to GS&Co. a number of shares to be determined based on the following formula: (i) if the arithmetic mean of the closing prices of the RFMD shares on the Nasdaq National Market System on each of the five trading days commencing on and including (u) in the case of the first contract, February 4, 2003, (v) in the case of the second contract, August 5, 2003 and (w) in the case of the third contract, February 4, 2004, to and including the respective termination date of each contract (the "Final Price") is less than 100 percent of the Agency Execution Price (the "Floor Price"), the maximum number of shares covered by the applicable contract (with respect to each contract, the "Maximum Number"); (Page 6 of 8 Pages) 7 (ii) if the Final Price is less than or equal to (x) in the case of the first contract, 146.25 percent of the Agency Execution Price, (y) in the case of the second contract, 159.00 percent of the Agency Execution Price and (z) in the case of the third contract, 172.75 percent of the Agency Execution Price (with respect to each contract, the "Cap Price"), but greater than or equal to the Floor Price, a number of shares equal to: Floor Price/Final Price x the Maximum Number; or (iii) if the Final Price is greater than the Cap Price, a number of shares equal to: Final Price - (Cap Price - Floor Price) x the Maximum Number. -------------------------------------- Final Price The Agreements are each subject to adjustment or postponement in the event of certain market disruption events or other extraordinary events. To secure its obligations under the Agreements, TRW has pledged to GS&Co. 2,000,000 shares of Common Stock of RFMD. If the precise number of shares sold by GS&Co. on or before the Last Sale Date is less than 2,000,000 shares in the aggregate, the number of shares that are the subject of this pledge will be reduced to equal such number of shares actually sold by GS&Co. Item 7. Material to be Filed as Exhibits. - ------ -------------------------------- Item 7 is amended by adding the following exhibits thereto: Exhibit Number Document 3.12 Letter Agreement dated February 10, 2000, between TRW Inc. and Goldman, Sachs & Co., regarding the sale of 666,667 shares of Common Stock of RFMD 3.13 Letter Agreement dated February 10, 2000, between TRW Inc. and Goldman, Sachs & Co., regarding the sale of 666,667 shares of Common Stock of RFMD 3.14 Letter Agreement dated February 10, 2000, between TRW Inc. and Goldman, Sachs & Co., regarding the sale of 666,666 shares of Common Stock of RFMD (Page 7 of 8 Pages) 8 SIGNATURES 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. Dated: February 15, 2000 TRW INC. By: /s/ Kathleen A. Weigand --------------------------------- Kathleen A. Weigand Vice President, Assistant General Counsel and Assistant Secretary (Page 8 of 8 Pages) 9 Exhibit 3.12 Ref: Date: February 10, 2000 To: TRW Inc. ("Counterparty") Attention: Ronald P. Vargo, Vice President and Treasurer Tel: (216) 291-7500 Fax: (216) 291-7831 From: Goldman, Sachs & Co ("GS&Co.") Tel: (212) 902-1981 Fax: (212) 428-1980 - -------------------------------------------------------------------------------- Dear Sir/Madam: The purpose of this letter agreement (this "Confirmation") is to confirm the terms and conditions of the above referenced transaction entered into between Counterparty and GS&Co. on the Trade Date specified below (the "Transaction"). This Confirmation constitutes a "Confirmation" as referred to in the Master Agreement specified below. The definitions and provisions contained in the 1991 ISDA Definitions (as supplemented by the 1998 Supplement, the "Swap Definitions") and in the 1996 ISDA Equity Derivatives Definitions (the "Equity Definitions", and together with the Swap Definitions, the "Definitions"), in each case as published by the International Swaps and Derivatives Association, Inc., are incorporated into this Confirmation. In the event of any inconsistency between the Swap Definitions and the Equity Definitions, the Equity Definitions will govern. In the event of any inconsistency between this Confirmation and the Agreement (as defined below) or the Definitions, the terms of this Confirmation shall govern. For purposes of the Equity Definitions, this Transaction will be deemed to be a Physically-settled Share Option Transaction with an Exercise Date equal to the Valuation Date. For purposes of Section 4.4 of the Equity Definitions, the Settlement Date will be treated as if it were a Cash Settlement Payment Date. References to "Option Entitlement" in Section 9.3(b)(i)(A) of the Equity Definitions shall be deemed to be references to a "Number of Shares". References to an "option" in Section 9.7 of the Equity Definitions shall be deemed to be references to a "forward". 1. (a) If GS&Co. and Counterparty are parties to an executed 1992 ISDA Master Agreement (Multicurrency-Cross Border) (the "Agreement"), this Confirmation supplements, forms part of, and is subject to, such executed Agreement. This Confirmation shall be read and construed as one with such Agreement and all other outstanding Confirmations between GS&Co. and Counterparty, so that all such Confirmations and such Agreement constitute a single agreement between GS&Co. and Counterparty. 10 (b) If GS&Co. and Counterparty are not yet parties to a Agreement, this Confirmation (and each Confirmation in respect of each previous and subsequent Transaction between us) shall be deemed to supplement, form a part of, and be subject to (a) a single, standard form Agreement, as if such an agreement had been executed by and between GS&Co. and Counterparty without elections, changes or modifications thereto (other than as made herein), governed by and construed in accordance with the law of the State of New York, without reference to choice of law doctrine, and (b) upon due execution by GS&Co. and Counterparty, and notwithstanding clause (a) above, the Agreement that sets forth the general terms and conditions applicable to Transactions between GS&Co. and Counterparty. In addition, if the Agreement has not been executed by GS&Co. and Counterparty, this Confirmation will itself evidence a complete and binding agreement between GS&Co. and Counterparty as to the terms of this Transaction. This Confirmation, all other Confirmations between GS&Co. and Counterparty, and the applicable Agreement shall constitute a single agreement between GS&Co. and Counterparty. All provisions contained or incorporated by reference in the Agreement between GS&Co. and Counterparty shall govern this Transaction except as expressly modified below. 2. The terms of the particular Transaction to which this Confirmation relates are as follows: GENERAL TERMS: Trade Date: February 10, 2000 Termination Date: February 10, 2003 (or if not an Exchange Business Day, the next succeeding Exchange Business Day). Seller: Counterparty Buyer: GS&Co. Shares: The common stock of RF Micro Devices, Inc. (Symbol: RFMD) Issuer: RF Micro Devices, Inc. Number of Shares: 666,667, subject to adjustment as provided in "Sale Period" below. Floor Price: 100.00% of the Agency Execution Price. Cap Price: 146.25% of the Agency Execution Price. 2 11 Final Price: The arithmetic mean of the Relevant Prices of the Shares on each Averaging Date. Prepayment Amount: 80.48% of the Agency Execution Price x the Number of Shares. Agency Execution Price: The average price per share at which GS&Co. effects sales of Shares as described under "Sale Period" below. Prepayment Date: The third Currency Business Day following the Last Sale Date (as defined in "Sale Period" below). Prepayment: On the Prepayment Date, GS&Co. shall pay Counterparty the Prepayment Amount in immediately available funds as payment in full for the Number of Shares to Be Delivered. GS&Co. shall have no payment or delivery obligations pursuant to this Confirmation other than the payment of the Prepayment Amount on the Prepayment Date. Settlement Currency: USD Exchange: NASDAQ Related Exchange: CBOE SALE PERIOD: - ------------ Between the Trade Date and the twentieth Exchange Business Day immediately following the Trade Date (the "Last Sale Date"), GS&Co. will make a good faith effort to sell the full Number of Shares. Upon the earlier of (i) the sale of the Number of Shares or (ii) the Last Sale Date, GS&Co. shall provide written notice to Counterparty of the Agency Execution Price resulting therefrom and the Prepayment Amount. GS&Co.'s calculations of the Agency Execution Price and the Prepayment Amount shall be conclusive absent manifest error. If GS&Co. does not sell the full Number of Shares by the close of the Exchange on the Last Sale Date, GS&Co. shall promptly give notice to Counterparty that the Number of Shares shall be reduced to such number as GS&Co. has sold pursuant to this paragraph. VALUATION: - ---------- Valuation Time: At the close of trading in respect of regular trading hours on the Exchange, without regard to extended trading hours on the Exchange, if any. Valuation Date: The Termination Date 3 12 Averaging Dates: Each of the five Exchange Business Days commencing on, and including, February 4, 2003 to and including the Valuation Date. Averaging Date Market Disruption: Modified Postponement SETTLEMENT TERMS: Settlement of this Transaction shall ----------------- be Physical Settlement. Physical Settlement: On the Settlement Date, Counterparty will deliver to GS&Co. the Number of Shares to be Delivered. Number of Shares to be Delivered: A number of Shares determined by the Calculation Agent on the Valuation Date based on the following formula: a) if the Final Price is less than the Floor Price, a number of Shares equal to: Number of Shares b) if the Final Price is less than or equal to the Cap Price but greater than or equal to the Floor Price, a number of Shares equal to: Floor Price x Number of ----------- Shares Final Price and c) if the Final Price is greater than the Cap Price, a number of Shares equal to: Final Price - (Cap Price-Floor Price) ------------------------------------ x Number of Shares Final Price
Settlement Date: Three (3) Exchange Business Days after the Valuation Date. Failure to Deliver: Inapplicable Delivery of Number of Shares to be Delivered: On the Settlement Date, Counterparty shall satisfy its delivery obligation by delivering to GS&Co. the number of Pledged Shares (or other Shares acceptable to GS&Co.) equal to the Number of the Shares to be Delivered. 4 13 ADJUSTMENTS: - ------------ Method of Adjustment: In the event of the occurrence of a Potential Adjustment Event, the Calculation Agent will determine whether such Potential Adjustment Event has a diluting or concentrative effect on the theoretical value of the Shares and, if so, will (i) make the corresponding adjustment(s), if any, to the Number of Shares, the Floor Price and the Cap Price and, in any case, any other variable relevant to the settlement or payment terms of this Transaction as the Calculation Agent determines appropriate to account for that diluting or concentrative effect and (ii) determine the effective date(s) of the adjustment(s). For the avoidance of doubt, in connection with the adjustments made pursuant to the preceding sentence, if as a result of a Potential Adjustment Event existing holders of Shares receive a distribution or dividend of securities (other than Shares) that are Marketable Securities (the "Additional Shares"), then the term "Shares" will mean a basket of Shares composed of the original Shares and the Additional Shares and this Transaction will become a Share Basket Transaction. "Marketable Securities" means equity securities that are publicly traded on a United States national securities exchange or quoted on the Nasdaq National Market. Dividend Adjustment: If the Shares are subject to a cash dividend in excess of the Regular Dividend, then on the ex-dividend date for the payment of each such dividend the Calculation Agent will reduce the Floor Price and the Cap Price by the amount per Share of each such dividend in excess of the Regular Dividend. For the avoidance of doubt, if as a result of any Merger Event or Potential Adjustment Event (or any combination thereof) the Shares are adjusted to include the Shares of an issuer other than the initial Issuer or of more than one issuer (whether or not including the initial Issuer), then such adjustment shall apply with respect to any cash dividends to which the successor or additional Shares of the applicable issuer(s) are subject. "Regular Dividend" means $0.00 per share per quarter. EXTRAORDINARY EVENTS: - --------------------- Consequences of Merger Event: 5 14 (a) Share-for-Share: Cancellation and Payment: provided, however, if the New Shares are Marketable Securities, Alternative Obligation shall apply. (b) Share-for-Other: Cancellation and Payment. (c) Share-for-Combined: Cancellation and Payment; provided, however, if any portion of the consideration for the relevant shares consists of Marketable Securities (the "Marketable Securities Consideration"), Alternative Obligation shall apply to that portion of the Transaction corresponding to the Marketable Securities Consideration. Notwithstanding anything to the contrary in the Equity Definitions, the amount payable under this Transaction upon the occurrence of a Merger Event, Nationalization or Insolvency shall be calculated by the Calculation Agent in good faith in accordance with Section 9.7 of the Equity Definitions using, among other things, the factors identified in subparagraphs (i), (ii) and (iii) therein, but without the requirement of soliciting dealer quotations therefor. Notwithstanding Section 9.2(b) of the Equity Definitions, "Merger Date" means the date of closing of the Merger Event. In connection with a Share-for-Share or Share-for-Combined Merger Event in (a) or (c) above, then to the extent the consequence of any Merger Event is Alternative Obligation, in addition to any other adjustments in respect of the Merger Event, the Calculation Agent will adjust the Floor Price and the Cap Price as follows (which adjustments, together with the other adjustments in respect of the Merger Event are intended to preserve the economic equivalent value of this Transaction to the parties): (i) as of the Exchange Business Day immediately prior to the Announcement Date, the Calculation Agent will determine an amount (in USD) equal to the change in market value in this Transaction resulting from the substitution of Marketable Securities for the Shares; and (ii) on the Merger Date, the Calculation Agent will adjust the Floor Price and the Cap Price by the amounts necessary, given the then remaining life of this Transaction, to achieve the change in market value determined under clause (i). The Calculation Agent will make its determination under clause (i) using a Transaction maturity from the Exchange Business Day immediately prior to the Announcement Date to the Termination Date and will base its determination on the difference (positive or negative) between 6 15 the Shares and the Marketable Securities with respect to Volatility, Dividend Paid and Stock Loan Rate. For this purpose,"Volatility" and "Stock Loan Rate" mean, respectively, the volatility and stock loan rebate rate agreed to by Counterparty and the Calculation Agent, and "Dividend Paid" means the amount determined by the Calculation Agent to have been the ordinary cash dividend amount paid per the relevant share in the calendar year ending on the Announcement Date (and, in the case of Marketable Securities, shall be zero if the Marketable Securities did not exist prior to the Merger Event). If the parties cannot agree on a Volatility or Stock Loan Rate for the Shares or Marketable Securities prior to the Merger Date, the Calculation Agent will determine the relevant amount by obtaining from each of three leading, independent broker-dealers who actively make markets in transactions similar to this Transaction a quotation for such amount and taking the arithmetic average of the three quotations. In obtaining volatility quotations, the Calculation Agent will ask the quoting dealer to provide the mid-market volatility that the dealer would have provided for this Transaction if the dealer had been asked to enter into the then remainder of this Transaction (in the case of a volatility quotation for Marketable Securities, on Marketable Securities and as otherwise adjusted for the Merger Event) on the Exchange Business Day immediately prior to the Announcement Date. NATIONALIZATION OR INSOLVENCY: Cancellation & Payment - ----------- 3. CALCULATION AGENT: GS&Co. 4. NON-RELIANCE: Each party represents to the other party that it is not relying on any communication (written or oral) of the other party as investment advice or as a recommendation to enter into this Transaction, it being understood that information and explanations related to the terms and conditions of this Transaction shall not be considered investment advice or a recommendation to enter into this Transaction. No communication (written or oral) received from the other party shall be deemed to be an assurance or guarantee as to the expected results of this Transaction. 5. GOVERNING LAW: The laws of the State of New York (without reference to choice of law doctrine) 6. COLLATERAL: On or prior to Trade Date, Counterparty will deposit and thereafter maintain with GS&Co. a number of Shares equal to the Number of Shares (such Shares or other collateral, any distributions thereon or proceeds thereof and any substitutions therefor, the "Pledged Shares" or the "Collateral"). Counterparty represents that (i) it is the legal, record and beneficial owner of all Collateral free of all liens, claims, 7 16 equities and encumbrances and (ii) it has the power and has obtained all of the necessary consents and approvals to grant a first priority security interest to GS&Co. in the Collateral. The Counterparty hereby grants GS&Co. a first priority security interest in, and a first priority lien on, the Collateral as collateral for its obligations under this Transaction and the Agreement. Upon any default by Counterparty (including the occurrence of an Event of Default or Termination Event under the Agreement), GS&Co. shall have all of the rights with respect to the Collateral of a secured party under the New York Uniform Commercial Code. GS&Co. shall not be liable for any loss or damages occasioned by any sale or disposal of the Collateral unless such liability results primarily from the negligence (as determined by a final and nonappealable judgment of a court of competent jurisdiction) or bad faith of GS&Co. In the absence of an Event of Default or a Termination Event or the occurrence of an event which with the passage of time could result in an Event of Default or a Termination Event, GS&Co. shall pay over, or cause to be paid over, to the Counterparty any cash dividends actually received by GS&Co. on the Shares (other than any such dividend which GS&Co. determines in its good faith discretion was not paid by the Issuer in the ordinary course of its business or otherwise constitutes an "extraordinary" dividend). Except in the case where the Collateral has been rehypothecated by GS&Co., the Counterparty shall be entitled to exercise any and all voting and other consensual rights pertaining to the Collateral or any part thereof for any purpose not inconsistent with the terms of this Transaction. Counterparty will faithfully preserve and protect GS&Co.'s security interest in the Collateral, will defend GS&Co.'s right, title, lien and security interest in and to the Collateral against the claims and demands of all persons whomsoever, and will do all such acts and things and deliver all such documents and instruments, including without limitation further pledges, assignments, financing statements and continuation statements, as GS&Co. in its sole discretion 8 17 may reasonably deem necessary or advisable from time to time in order to preserve, protect and perfect such security interest or to enable GS&Co. to exercise or enforce its rights with respect to any Collateral. Counterparty hereby irrevocably appoints GS&Co. as Counterparty's attorney-in-fact for the purpose of taking any action and executing any instrument which GS&Co. may deem necessary or advisable to preserve, protect and perfect such security interest or to enable GS&Co. to exercise or enforce its rights with respect to any Collateral. Counterparty will not permit any lien, security interest, adverse claim, restrictions on transfer or other encumbrance, other than the lien and security interest Counterparty created hereby in favor of GS&Co., to exist upon any of the Collateral. Counterparty will not take any action that could in any way limit or adversely affect the ability of GS&Co. to realize upon its rights in the Collateral. Notwithstanding any limitation otherwise imposed by Section 9-207(2)(e) of the New York Uniform Commercial Code, GS&Co. shall be entitled to pledge, repledge, hypothecate, rehypothecate or further assign (collectively, "rehypothecate") any Collateral delivered to GS&Co. by Counterparty pursuant to this Agreement, subject to the obligation to return such Collateral or equivalent Collateral to Counterparty' PROVIDED, HOWEVER, that no such rehypothecation may occur within 14 calendar days of the Last Sale Date; GS&Co. must use standard market documentation for the type of hypothecation involved; such documentation must provide that GS&Co. can reacquire the Collateral upon not less than three business days' notice; and GS&Co. will exercise that right upon written notice from the Counterparty. 7. REPRESENTATIONS AND Counterparty represents and warrants to, AGREEMENTS OF and agrees with, GS&Co. as follows: COUNTERPARTY: Counterparty (a) has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of entering into the Transaction; (b) is an "eligible swap participant" as defined in the Part 35 Regulations of the U.S. Commodity Futures Trading 9 18 Commission; (c) has consulted with its own legal, financial, accounting and tax advisors in connection with the Transaction; (d) is entering into the Transaction as principal (and not as agent or in any other capacity, fiduciary or otherwise) for a bona fide business purpose in conjunction with its line of business to hedge an existing position and not for purposes of speculation; and (e) has determined that this Transaction is prudent and appropriate in light of its organizational documentation, financial situation and investment objectives and guidelines and policies. As of the date of Counterparty's most recent Schedule 13D filing with the Securities and Exchange Commission, Counterparty was the beneficial owner (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of 15.7% of the outstanding shares of the Issuer. Counterparty is currently, and in the past has been, in compliance with its reporting obligations under Section 13(d) of the Exchange Act. A list of all such Schedule 13D filings is attached as Annex A and copies of all such filings have been provided to GS&Co. Counterparty will provide GS&Co. a draft of the amendment to its Schedule 13D which describes the Transaction and will give GS&Co. a reasonable opportunity to comment on the draft. An amendment to the Schedule 13D will be promptly filed by the Counterparty with the Securities and Exchange Commission. Counterparty will comply with its obligations in Section 14(i) of the Confirmation in connection with future filings under Section 13(d) of the Exchange Act made on or after the date of this Confirmation. Neither Counterparty nor any of its Affiliates is in possession of any non-public material information regarding the Issuer; and, during the period that GS&Co. effects sales of Shares pursuant to Section 2 hereof, Counterparty will notify by telephone Alexandra Antoniadis (Telephone: (212) 902-9509) promptly upon coming into possession of any such material non-public information (such telephonic notice to be promptly confirmed in writing). In the event that Counterparty so notifies such personnel of GS&Co. during the Sale Period, GS&Co. will as promptly as practicable discontinue the sale of the Shares, and the Number of Shares will be 10 19 reduced to such number as GS&Co. has sold prior to its discontinuing such sales and the date such sales are discontinued will be the Last Sale Date. Counterparty and its affiliates have not sold, or contracted to sell, any Shares (or any other security or instrument that will be subject to aggregation under Rule 144(e)) or any beneficial interest therein during the three-month period and have not sold or purchased, or contracted to sell or purchase, any Shares (or any other security or derivative security that would be subject to reporting under Section 16 of the Exchange Act) or any beneficial interest therein during the six-month period ending on the date of this Confirmation, except as reported on Counterparty's Form 144 and Form 4 and Form 5 filings with the SEC or as otherwise listed on Annex A. Counterparty shall comply with the reporting and other requirements of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder. The Pledged Shares are not subject to any restrictions on transfer other than those arising under federal or state securities laws. No Pledged Shares are entitled to the benefits of any registration rights agreement or similar agreement except pursuant to the agreement identified in Annex B hereto (the "Registration Rights Agreement"). Within the last month, Counterparty has not offered any Shares through any prospectus or other offering document. During the Sale Period, Counterparty will not exercise any of its rights under the Registration Rights Agreement in respect of any Shares or permit any Shares to be included in a registered offering without GS&Co.'s prior written consent. Assuming that the terms of the Transaction are consistent with the terms of a "Contract" as described in Section I.A. of the Goldman, Sachs & Co. (December 20, 1999) interpretive letter (the "Interpretive Letter"), and based on the representation of GS&Co. below, the Shares to be delivered on Physical Settlement shall be freely transferable to the public without any restrictions whatsoever. Counterparty will not take any action so as to cause the terms of the Transaction not to comply with Section I.A. of the Interpretive Letter. Counterparty has furnished GS&Co. with copies of all agreements, contracts or instruments that relate to the Pledged Shares. 11 20 The Pledged Shares are transferable by the Counterparty to the public pursuant to Rule 144 under the Securities Act. Counterparty acknowledges and agrees that (i) assuming that the terms of the Transaction are consistent with the terms of a "Contract" as described in Section I.A. of the Interpretive Letter, and based on the representation of GS&Co. below, the entering into of this Confirmation will constitute a "sale" of the Pledged Shares for purposes of Rule 144, (ii) Counterparty has not taken and will not take any action that would cause such sale to exceed the volume limitation of Rule 144(e), (iii) Counterparty has not taken and will not take any action that could cause the sale pursuant to this Confirmation not to comply with Rule 144, (iv) Counterparty will transmit a Form 144 for filing with the Securities and Exchange Commission simultaneously with the execution of this Confirmation and such Form 144 shall be in a form reasonably acceptable to GS&Co., (v) Counterparty will deliver a representation letter to GS&Co. in a form customarily used by GS&Co. simultaneous with the execution of this Confirmation and each representation, warranty and agreement in such representation letter shall be deemed to be incorporated into this Confirmation and (vi) upon the Last Sale Date, Counterparty agrees to transmit for filing with the Securities and Exchange Commission an amendment to the previously filed Form 144 in a form reasonably acceptable to GS&Co. Counterparty is not and has not been the subject of any civil proceeding of a judicial or administrative body of competent jurisdiction that could reasonably be expected to impair Counterparty's ability to perform its obligations hereunder. Within three Business Days after any financial officer of Counterparty obtains knowledge of an Event of Default or the occurrence of any event that with the giving of notice, the lapse of time or both would be such an Event of Default, Counterparty will immediately notify GS&Co. of the occurrence of such Event of Default. Counterparty has filed or caused to be filed all material tax returns that are required to be filed by Counterparty and has paid all material taxes shown to be due and payable on said returns or on any assessment made against Counterparty or any of Counterparty's property and all other material taxes, 12 21 assessments, fees, liabilities or other charges imposed on Counterparty or any of Counterparty's property by any governmental authority. Counterparty was not or will not be insolvent at the time this Transaction is consummated, and was not or will not be rendered insolvent or will not be insolvent as a result thereof. Counterparty has not engaged and will not engage in any business or transaction with GS&Co. after which the property remaining with Counterparty was or will be unreasonably small in relation to its business. At the time of any transfer to or for the benefit of GS&Co., Counterparty did not intend or will not intend to incur, and did not incur or will not incur, debts that were beyond the ability of Counterparty to pay as they mature. GS&Co. hereby represents and warrants to, and agrees with, Counterparty that the sale of Shares by GS&Co. during the Sale Period will comply with the manner of sale requirements of Rule 144(f) and (g). 8. ACKNOWLEDGMENTS: The parties hereto intend for: (i) This Transaction to be a "securities contract" as defined in Section 741(7) of the Bankruptcy Code (Title 11 of the United States Code) (the "Bankruptcy Code"), qualifying for protection under Section 555 of the Bankruptcy Code; (ii) A party's right to liquidate this Transaction and to exercise any other remedies upon the occurrence of any Event of Default under the Agreement with respect to the other party to constitute a "contractual right" as defined in the Bankruptcy Code. (iii) Any cash, securities or other property provided as performance assurance, credit support or collateral with respect to this Transaction to constitute "margin payments" as defined in the Bankruptcy Code. (iv) All payments for, under or in connection with this Transaction, all payments for the Shares and the transfer of such Shares to constitute "settlement payments" as defined in the Bankruptcy Code. 9. INDEMNIFICATION: Counterparty agrees to indemnify and hold harmless 13 22 GS&Co., its Affiliates and its assignees and their respective directors, officers, employees, agents and controlling persons (GS&Co. and each such person being an "Indemnified Party") from and against any and all losses, claims, damages and liabilities, joint or several, to which such Indemnified Party may become subject, and relating to or arising out of any of the transactions contemplated by this Confirmation, and will reimburse any Indemnified Party for all expenses (including reasonable counsel fees and expenses) as they are incurred in connection with the investigation of, preparation for or defense or settlement of any pending or threatened claim or any action, suit or proceeding arising therefrom, whether or not such Indemnified Party is a party and whether or not such claim, action, suit or proceeding is initiated or brought by or on behalf of Counterparty. Counterparty will not be liable under the foregoing indemnification provision to the extent that any loss, claim, damage, liability or expense results primarily from the negligence (as determined by a final and nonappealable judgment of a court of competent jurisdiction) or bad faith of GS&Co. If for any reason the foregoing indemnification is unavailable to any Indemnified Party or insufficient to hold harmless any Indemnified Party, then Counterparty shall contribute, to the maximum extent permitted by law, to the amount paid or payable by the Indemnified Party as a result of such loss, claim, damage or liability. Counterparty also agrees that no Indemnified Party shall have any liability to Counterparty or any person asserting claims on behalf of or in right of Counterparty in connection with or as a result of any matter referred to in this Confirmation or the Agreement except to the extent that any losses, claims, damages, liabilities or expenses incurred by Counterparty result primarily from the negligence (as determined by a final and nonappealable judgment of a court of competent jurisdiction) or bad faith of the Indemnified Party. The provisions of this Section 9 shall survive completion of the Transaction contemplated by this Confirmation and any assignment and delegation pursuant to Section 14(a) of this Confirmation. 10. TERMINATION PROVISIONS: (a) Sections 5(a)(v), 5(a)(vi), 5(a)(vii), 5(a)(viii), and 5(b)(iv) shall not apply to GS&Co. 14 23 (b) "SPECIFIED TRANSACTION" will have the meaning specified in Section 14 of the Agreement, except that it will also include any forward transactions in securities and any margin loan or extension of credit by GS&Co. to Counterparty. (c) (i) The "CROSS DEFAULT" provisions of Section 5(a)(vi) of the Agreement as amended will apply to Counterparty; and Section 5(a)(vi) of the Agreement is hereby amended by deleting in the seventh line thereof the words ", or becoming capable at such time of being declared,". (ii) "SPECIFIED INDEBTEDNESS" will have the meaning specified in Section 14 of the Agreement, except as excluded in the proviso to this definition, and shall include for the avoidance of doubt, all reimbursement obligations in respect of letters of credit or financial guaranty insurance or surety bonds issued for the account of that person; provided however, that obligations in respect of interbank deposits received by GS&Co. shall not constitute Specified Indebtedness for the purposes of clause (2) of Section 5(a)(vi) of the Agreement to the extent they are not paid when due only as the result of inadvertence or administrative error. (iii) "THRESHOLD AMOUNT" means U.S. $100,000,000 or its equivalent in another currency. (d) Each of Section 5(a)(vii)(4)(B) and Section 5(a)(vii)(7) of the Agreement is hereby amended by deleting the number "30" and replacing it with the number "90". (e) Section 5(a)(viii) of the Agreement is hereby amended by deleting the introductory paragraph in its entirety and replacing it with the following: "The party consolidates or amalgamates with, or merges with or into, or transfers all or substantially all its assets to, or reorganizes, incorporates, reincorporates, or reconstitutes into or as, another entity and, at the time of such consolidation, amalgamation, merger, transfer, reorganization, incorporation, reincorporation or reconstitution." 15 24 (f) Section 5(b)(iv) of the Agreement is hereby amended by: (i) deleting in the fourth line thereof the words "another entity" and replacing them with the words "or reorganizes, incorporates, reincorporates, reconstitutes, or reforms into or as, or receives all or substantially all of the assets and/or liabilities or obligations of, another entity or X, such Specified Entity effects a recapitalization, liquidating dividend, leveraged buy-out, other similar highly-leveraged transaction, redemption of indebtedness, or stock buy-back or similar call on equity"; (ii) deleting in the fifth line thereof the words "the resulting, surviving or transferee" and replacing them with the words "X, such Specified Entity or any resulting, surviving, transferee, reorganized, reconstituted, reformed, or recapitalized"; and (iii) deleting in the seventh line thereof the words "its successor or transferee" and replacing them with the words "any resulting, surviving, transferee, reorganized, reconstituted, reformed or recapitalized entity". (g) The "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(iv) as amended above will apply to Counterparty. Notwithstanding Section 5(b)(iv) of the Agreement, "Credit Event Upon Merger" means that a Designated Event (as defined below) occurs with respect to a party and such action does not constitute an event described in Section 5(a)(viii) of the Agreement but, after the occurrence of the Designated Event, the successor, surviving or transferee entity (which will be the Affected Party) has a credit rating of BB+ from Standard & Poor's Ratings Group or Ba1 from Moody's Investors Service Corporation or a lower rating from either such rating agency. For the purposes hereof, a "Designated Event" means, with respect to a party, that after the Trade Date of a Transaction: (i) the party consolidates or amalgamates with, or merges with or into, or transfers all or substantially all its assets (or any substantial part of the assets comprising the business conducted by that party as of the Trade Date of that Transaction) to, or receives all or substantially all the assets and obligations of, another entity; (ii) any person as defined for purposes of Section 13(d) under the Securities Exchange Act of 1934, as amended as of the Trade Date (the "Exchange Act"), or entity or group (as defined for purposes of Section 13(d) under the Exchange 16 25 Act) acquires directly or indirectly the beneficial ownership (as defined for purposes of Section 13(d) under the Exchange Act) of equity securities having the power to elect a majority of the board of directors of the party; or (iii) the party enters into any agreement providing for any of the foregoing. (h) The "AUTOMATIC EARLY TERMINATION" provision of Section 6(a) will not apply to GS&Co. and will apply to Counterparty. (i) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e): (i) Loss will apply. (ii) The Second Method will apply. (j) "TERMINATION CURRENCY" means United States Dollars. 11. TAX REPRESENTATIONS. (a) PAYER REPRESENTATIONS. For purposes of Section 3(e) of the Agreement, GS&Co. and Counterparty each make the following representation: It is not required by any applicable law, as modified by the practice of any relevant governmental revenue authority, of any Relevant Jurisdiction to make any deduction or withholding for or on account of any Tax from any payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) of the Agreement) to be made by it to the other party under the Agreement. In making this representation, it may rely on (i) the accuracy of any representations made by the other party pursuant to Section 3(f) of the Agreement, (ii) the satisfaction of the agreement contained in Section 4(a)(i) or 4(a)(iii) of the Agreement and the accuracy and effectiveness of any document provided by the other party pursuant to Section 4(a)(i) or 4(a)(iii) of the Agreement, and (iii) the satisfaction of the agreement of the other party contained in Section 4(d) of the Agreement, provided that it shall not be a breach of this representation where reliance is placed on Clause (ii) and the 17 26 other party does not deliver a form or document under Section 4(a)(iii) by reason of material prejudice to its legal or commercial position. (b) PAYEE REPRESENTATIONS. For the purpose of Section 3(f) of the Agreement; Counterparty represents that is a corporation organized under the laws of the State of Ohio and it is not a foreign person for United States federal income tax purposes. GS&Co. represents that it is a limited partnership organized under the laws of the State of New York and it is not a foreign person for United States federal income tax purposes. 12. AGREEMENT TO DELIVER DOCUMENTS. For the purpose of Section 4(a), each party agrees to deliver the following documents, as applicable: (a) Tax forms, documents, or certificates to be delivered are: None (b) Other documents to be delivered are:
COVERED BY PARTY REQUIRED TO DATE BY WHICH SECTION 3(D) DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE TO BE DELIVERED REPRESENTATION ---------------- ------------------------- --------------- -------------- Counterparty Certified incumbency certificate or At execution of this Yes other evidence of authority and Agreement specimen signatures with respect to Counterparty and its signatories Counterparty Annual Financial Statement of Within 90 days of the Yes Counterparty last day of each calendar year, with respect to financial statements relating to such calendar year. Counterparty Interim Financial Statement of Promptly following Counterparty demand by Party A
18 27
COVERED BY PARTY REQUIRED TO DATE BY WHICH SECTION 3(D) DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE TO BE DELIVERED REPRESENTATION ---------------- ------------------------- --------------- -------------- Counterparty Evidence reasonably satisfactory to At execution of this Yes and GS&Co. the other party of the signing Agreement and authority and specimen signature of thereafter on request any individual executing this Agreement, any Credit Support Document and any Confirmation on its behalf
13. MISCELLANEOUS. (a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a): Address for notices or communications to GS&Co.: Address: 85 Broad Street New York, New York 10004, U.S.A. Attention: Alexandra Antoniadis Telex No.: 12-5654 Answerback: GOLSAX Facsimile No.: 212-902-2065 Telephone No.: 212-902-9509 Electronic Messaging System Details: None. With a copy to: Address: 85 Broad Street New York, New York 10004, U.S.A. Attention: Treasury Administration Telex No.: 421344 Answerback: GOLSAX Facsimile No.: 212-902-3325 Telephone No.: 212-902-1000 Electronic Message System Details: None. 19 28 Address for notices or communications to Counterparty: Address: 1900 Richmond Road Lyndhurst, Ohio 44124, U.S.A. Attention: Ronald P. Vargo Cc: Secretary Telex No.: None Answerback: None Facsimile No.: (216) 291-7831 Telephone No.: (216) 291-7500 Electronic Message System Details: None. (b) OFFICES; MULTIBRANCH PARTIES. (i) The provisions of Section 10(a) will be applicable. (ii) For the purpose of Section 10(c): GS&Co. is not a Multibranch Party. Counterparty is not a Multibranch Party. (c) JURISDICTION. Section 13(b) of the Agreement is hereby amended by: (i) deleting in the second line of Subparagraph (i) thereof the word "non"; and (ii) deleting the final paragraph thereof. (d) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) of the Agreement will not apply to Transactions. (e) "WAIVER OF JURY TRIAL". To the extent permitted by applicable law, each party irrevocably waives any and all right to trial by jury in any legal proceeding in connection with the Agreement or any Transaction. (f) PROCESS AGENT. For the purpose of Section 13(c): GS&Co. appoints as its Process Agent: None Counterparty appoints as its Process Agent in the Borough of Manhattan in New York City: Name: CT Corporation System 20 29 Address: 111 Eighth Avenue Telex No.: None Answerback: None Facsimile No.: None Telephone No.: (212) 894-8440 (g) "Annual Financial Statements" means a certified balance sheet and income statement of such party's assets, liabilities and results of operations, certified by a public accountant of national recognition and reputation and prepared in accordance with accounting principles that are generally accepted in the United States of America, as of the end of the most recent fiscal year. (h) "Interim Financial Statements" means a balance sheet and income statement setting forth such party's assets, liabilities and results of operations in accordance with Regulation S-X. 21 30 14. OTHER PROVISIONS. (a) TRANSFER. Section 7 of the Agreement is replaced in its entirety by the following: GS&Co. may assign its rights and delegate its obligations under any Transaction, in whole or in part, to any affiliate (an "Assignee") of GS&Co. effective (the "Affiliate Effective Date") upon delivery to Counterparty of an executed acceptance and assumption by the Assignee (an "Assumption") of the transferred obligations of GS&Co. under the Transaction (the "Transferred GS&Co. Obligations") and GS&Co. may assign its rights and delegate its obligations under any Transaction, in whole or in part, to a third party that has a long- term, unsubordinated debt rating of A- as rated by Standard & Poor's Ratings Group and A3 as rated by Moody's Investor Services Corporation effective (the "Third Party Effective Date") upon delivery to Counterparty of an executed Assumption by the third party of the Transferred GS&Co. Obligations under the Transaction. On the Affiliate Party Effective Date or the Third Party Effective Date, GS&Co. shall be released from all obligations and liabilities arising under or with respect to the Transferred GS&Co. Obligations, except GS&Co. will retain its rights under Section 9 of this Confirmation. With the prior written consent of GS&Co., which shall not be unreasonably withheld, Counterparty may assign its rights and delegate its obligations under any Transaction, in whole or in multiples of not less than 100,000 Shares, to a third party effective upon delivery to GS&Co. of an Assumption of the transferred obligations of Counterparty under the Transaction ("the Transferred Counterparty Obligations"), provided that such third party (i) is not an "affiliate" (as used for purposes of Section 2(a)(11) of the Securities Act) of the Issuer and delivers to GS&Co. evidence reasonably satisfactory to it to evidence this fact, (ii) delivers to GS&Co. a number of Shares equal to the product of (a) a fraction, the numerator of which is the maximum number of Shares subject to the Transferred Counterparty Obligations and the denominator is the Number of Shares and (b) the Number of Shares, as Collateral for its obligations, which Shares shall be freely transferable to the public without any restrictions on transfer whatsoever, and grants to GS&Co. a first priority security interest in, and a first priority lien on, the Collateral and (iii) makes the same representations, warranties, covenants and agreements as Counterparty in this Confirmation, except those that relate to Rule 144 of the Securities Act, and those that relate to Sections 13 and 16 of the Exchange Act to the extent that such third party is (and remains) not subject to the reporting obligations under those Sections. Upon delivery to GS&Co. of an executed Assumption by the third party of the Transferred Counterparty Obligations under the Transaction, Counterparty shall be released from all obligations and liabilities arising under or with respect to the Transferred Counterparty Obligations, except Section 9 shall continue to apply as between Counterparty and GS&Co. (b) SEVERABILITY. If any term, provision, covenant, or condition of this Confirmation, or the application thereof to any party or circumstance, shall be held to be invalid or unenforceable (in whole or in part) for any reason, the remaining terms, provisions, covenants, and conditions hereof shall continue in full force and effect as if this Confirmation had been executed with the invalid or unenforceable portion eliminated, so long as this Confirmation as so modified continues to express, without material change, the original intentions of the parties as to the subject matter of this Confirmation and the deletion of such portion of this Confirmation will 22 31 not substantially impair the respective benefits or expectations of the parties to this Confirmation; provided, however, that this severability provision shall not be applicable if any provision of Section 2, 5, 6, or 13 of the Agreement (or any definition or provision in Section 14 to the extent it relates to, or is used in or in connection with any such Section) shall be so held to be invalid or unenforceable. (c) BINDING EFFECT. This Confirmation shall bind and inure to the benefit of GS&Co. and Counterparty and their respective heirs, distributees, executors, personal representatives and administrators and permitted successors and assigns." (d) DEFINITIONS. The definition of "law" in Section 14 of this Agreement is hereby amended by the insertion of the words "either generally or with respect to a party to this agreement" after the phrase "any relevant governmental revenue authority" and the addition of the words "Change in Tax Law," before the word "lawful" in the second line. For the purposes of this Agreement, "Contractual Currency" means United States Dollars. (e) DEALINGS IN THE SHARES. Counterparty hereby acknowledges and agrees that GS&Co. and its Affiliates may engage in proprietary trading for their accounts in the Shares (and related securities) and that such trading may affect the value of the Shares and the amounts payable hereunder. (f) DEFAULT UNDER SPECIFIED TRANSACTIONS. Section 5(a)(v)(2) of the Agreement is hereby amended by replacing the words "the last" with the word "any". (g) CONDITIONS PRECEDENT. The condition precedent set forth in clause (1) of Section 2(a)(iii) of the Agreement shall not apply to payments scheduled to be made by Counterparty to GS&Co. under this Confirmation. (h) CONFIDENTIALITY. Each party considers its participation in each and any Transaction and the details thereof (collectively, the "Information") to constitute confidential and valuable business information. Accordingly, each party agrees to keep the Information strictly confidential and not to disclose it (or any portion thereof) to any third party except (i) with the prior written consent of the other party or (ii) pursuant to the demand, request or requirement of any law, court, regulatory or self-regulatory agency having jurisdiction over a party or pursuant to Rule 144 under the Securities Act or Section 13(d) of the Exchange Act. In such a case, Counterparty will notify GS&Co. reasonably in advance of any requirement or pending request for the disclosure of any Information and prior to the disclosure shall take all such actions reasonably requested by GS&Co. to preserve the confidentiality of such Information. (i) GROSS UP. The third line of Section 2(d)(i) of the Agreement is hereby amended by the insertion before the phrase "of any relevant governmental revenue authority" of the words ", application or official interpretation" and the insertion of the words "(either generally or with respect to a party to this Agreement)" after such phrase. (j) MAINTAIN AUTHORIZATIONS. Section 4(b) of the Agreement is hereby amended by deleting the words "use all reasonable efforts to" from the first and third lines thereof. 23 32 (k) REPRESENTATIONS. (i) Section 3(a)(iii) of the Agreement is hereby amended by inserting the word "material" between the words "any" and "contractual" in the third line thereof. (ii) Section 3(c) of the Agreement is hereby amended by deleting the words "or any of its affiliates" from the first and second lines thereof. 24 33 Please confirm that the foregoing correctly sets forth the terms of our agreement by executing the copy of this Confirmation enclosed for the purpose and returning it to us by facsimile transmission to the Attention of: Equity Derivatives Documentation Department (Telecopier No. (212) 428-1980/1983). Very truly yours, GOLDMAN, SACHS & CO. By: -------------------- Name: Title: Confirmed as of the date first above written: - ---------------- By: -------------------- Name: Title: 25 34 Exhibit 3.13 Ref: Date: February 10, 2000 To: TRW Inc. ("Counterparty") Attention: Ronald P. Vargo, Vice President and Treasurer Tel: (216) 291-7500 Fax: (216) 291-7831 From: Goldman, Sachs & Co ("GS&Co.") Tel: (212) 902-1981 Fax: (212) 428-1980 - -------------------------------------------------------------------------------- Dear Sir/Madam: The purpose of this letter agreement (this "Confirmation") is to confirm the terms and conditions of the above referenced transaction entered into between Counterparty and GS&Co. on the Trade Date specified below (the "Transaction"). This Confirmation constitutes a "Confirmation" as referred to in the Master Agreement specified below. The definitions and provisions contained in the 1991 ISDA Definitions (as supplemented by the 1998 Supplement, the "Swap Definitions") and in the 1996 ISDA Equity Derivatives Definitions (the "Equity Definitions", and together with the Swap Definitions, the "Definitions"), in each case as published by the International Swaps and Derivatives Association, Inc., are incorporated into this Confirmation. In the event of any inconsistency between the Swap Definitions and the Equity Definitions, the Equity Definitions will govern. In the event of any inconsistency between this Confirmation and the Agreement (as defined below) or the Definitions, the terms of this Confirmation shall govern. For purposes of the Equity Definitions, this Transaction will be deemed to be a Physically-settled Share Option Transaction with an Exercise Date equal to the Valuation Date. For purposes of Section 4.4 of the Equity Definitions, the Settlement Date will be treated as if it were a Cash Settlement Payment Date. References to "Option Entitlement" in Section 9.3(b)(i)(A) of the Equity Definitions shall be deemed to be references to a "Number of Shares". References to an "option" in Section 9.7 of the Equity Definitions shall be deemed to be references to a "forward". 1. (a) If GS&Co. and Counterparty are parties to an executed 1992 ISDA Master Agreement (Multicurrency-Cross Border) (the "Agreement"), this Confirmation supplements, forms part of, and is subject to, such executed Agreement. This Confirmation shall be read and construed as one with such Agreement and all other outstanding Confirmations between GS&Co. and Counterparty, so that all such Confirmations and such Agreement constitute a single agreement between GS&Co. and Counterparty. 35 (b) If GS&Co. and Counterparty are not yet parties to a Agreement, this Confirmation (and each Confirmation in respect of each previous and subsequent Transaction between us) shall be deemed to supplement, form a part of, and be subject to (a) a single, standard form Agreement, as if such an agreement had been executed by and between GS&Co. and Counterparty without elections, changes or modifications thereto (other than as made herein), governed by and construed in accordance with the law of the State of New York, without reference to choice of law doctrine, and (b) upon due execution by GS&Co. and Counterparty, and notwithstanding clause (a) above, the Agreement that sets forth the general terms and conditions applicable to Transactions between GS&Co. and Counterparty. In addition, if the Agreement has not been executed by GS&Co. and Counterparty, this Confirmation will itself evidence a complete and binding agreement between GS&Co. and Counterparty as to the terms of this Transaction. This Confirmation, all other Confirmations between GS&Co. and Counterparty, and the applicable Agreement shall constitute a single agreement between GS&Co. and Counterparty. All provisions contained or incorporated by reference in the Agreement between GS&Co. and Counterparty shall govern this Transaction except as expressly modified below. 2. The terms of the particular Transaction to which this Confirmation relates are as follows: GENERAL TERMS: - -------------- Trade Date: February 10, 2000 Termination Date: August 11, 2003 (or if not an Exchange Business Day, the next succeeding Exchange Business Day). Seller: Counterparty Buyer: GS&Co. Shares: The common stock of RF Micro Devices, Inc. (Symbol: RFMD) Issuer: RF Micro Devices, Inc. Number of Shares: 666,667, subject to adjustment as provided in "Sale Period" below. Floor Price: 100.00% of the Agency Execution Price. Cap Price: 159.00% of the Agency Execution Price. 2 36 Final Price: The arithmetic mean of the Relevant Prices of the Shares on each Averaging Date. Prepayment Amount: 77.56% of the Agency Execution Price x the Number of Shares. Agency Execution Price: The average price per share at which GS&Co. effects sales of Shares as described under "Sale Period" below. Prepayment Date: The third Currency Business Day following the Last Sale Date (as defined in "Sale Period" below). Prepayment: On the Prepayment Date, GS&Co. shall pay Counterparty the Prepayment Amount in immediately available funds as payment in full for the Number of Shares to Be Delivered. GS&Co. shall have no payment or delivery obligations pursuant to this Confirmation other than the payment of the Prepayment Amount on the Prepayment Date. Settlement Currency: USD Exchange: NASDAQ Related Exchange: CBOE SALE PERIOD: - ------------ Between the Trade Date and the twentieth Exchange Business Day immediately following the Trade Date (the "Last Sale Date"), GS&Co. will make a good faith effort to sell the full Number of Shares. Upon the earlier of (i) the sale of the Number of Shares or (ii) the Last Sale Date, GS&Co. shall provide written notice to Counterparty of the Agency Execution Price resulting therefrom and the Prepayment Amount . GS&Co.'s calculations of the Agency Execution Price and the Prepayment Amount shall be conclusive absent manifest error. If GS&Co. does not sell the full Number of Shares by the close of the Exchange on the Last Sale Date, GS&Co. shall promptly give notice to Counterparty that the Number of Shares shall be reduced to such number as GS&Co. has sold pursuant to this paragraph. VALUATION: - ---------- Valuation Time: At the close of trading in respect of regular trading hours on the Exchange, without regard to extended trading hours on the Exchange, if any. Valuation Date: The Termination Date 3 37 Averaging Dates: Each of the five Exchange Business Days commencing on, and including, August 5, 2003 to and including the Valuation Date. Averaging Date Market Disruption: Modified Postponement SETTLEMENT TERMS: Settlement of this Transaction shall be ----------------- Physical Settlement. Physical Settlement: On the Settlement Date, Counterparty will deliver to GS&Co. the Number of Shares to be Delivered. Number of Shares to be Delivered: A number of Shares determined by the Calculation Agent on the Valuation Date based on the following formula: a) if the Final Price is less than the Floor Price, a number of Shares equal to: Number of Shares b) if the Final Price is less than or equal to the Cap Price but greater than or equal to the Floor Price, a number of Shares equal to: Floor Price x Number of Shares ----------- Final Price and c) if the Final Price is greater than the Cap Price, a number of Shares equal to: Final Price - (Cap Price-Floor Price) -------------------------------------X Number of Shares Final Price
Settlement Date: Three (3) Exchange Business Days after the Valuation Date. Failure to Deliver: Inapplicable Delivery of Number of Shares to be Delivered: On the Settlement Date, Counterparty shall satisfy its delivery obligation by delivering to GS&Co. the number of Pledged Shares (or other Shares acceptable to GS&Co.) equal to the Number of the Shares to be Delivered. 4 38 ADJUSTMENTS: - ------------ Method of Adjustment: In the event of the occurrence of a Potential Adjustment Event, the Calculation Agent will determine whether such Potential Adjustment Event has a diluting or concentrative effect on the theoretical value of the Shares and, if so, will (i) make the corresponding adjustment(s), if any, to the Number of Shares, the Floor Price and the Cap Price and, in any case, any other variable relevant to the settlement or payment terms of this Transaction as the Calculation Agent determines appropriate to account for that diluting or concentrative effect and (ii) determine the effective date(s) of the adjustment(s). For the avoidance of doubt, in connection with the adjustments made pursuant to the preceding sentence, if as a result of a Potential Adjustment Event existing holders of Shares receive a distribution or dividend of securities (other than Shares) that are Marketable Securities (the "Additional Shares"), then the term "Shares" will mean a basket of Shares composed of the original Shares and the Additional Shares and this Transaction will become a Share Basket Transaction. "Marketable Securities" means equity securities that are publicly traded on a United States national securities exchange or quoted on the Nasdaq National Market. Dividend Adjustment: If the Shares are subject to a cash dividend in excess of the Regular Dividend, then on the ex-dividend date for the payment of each such dividend the Calculation Agent will reduce the Floor Price and the Cap Price by the amount per Share of each such dividend in excess of the Regular Dividend. For the avoidance of doubt, if as a result of any Merger Event or Potential Adjustment Event (or any combination thereof) the Shares are adjusted to include the Shares of an issuer other than the initial Issuer or of more than one issuer (whether or not including the initial Issuer), then such adjustment shall apply with respect to any cash dividends to which the successor or additional Shares of the applicable issuer(s) are subject. "Regular Dividend" means $0.00 per share per quarter. EXTRAORDINARY EVENTS: - --------------------- Consequences of Merger Event: 5 39 (a) Share-for-Share: Cancellation and Payment: provided, however, if the New Shares are Marketable Securities, Alternative Obligation shall apply. (b) Share-for-Other: Cancellation and Payment. (c) Share-for-Combined: Cancellation and Payment; provided, however, if any portion of the consideration for the relevant shares consists of Marketable Securities (the "Marketable Securities Consideration"), Alternative Obligation shall apply to that portion of the Transaction corresponding to the Marketable Securities Consideration. Notwithstanding anything to the contrary in the Equity Definitions, the amount payable under this Transaction upon the occurrence of a Merger Event, Nationalization or Insolvency shall be calculated by the Calculation Agent in good faith in accordance with Section 9.7 of the Equity Definitions using, among other things, the factors identified in subparagraphs (i), (ii) and (iii) therein, but without the requirement of soliciting dealer quotations therefor. Notwithstanding Section 9.2(b) of the Equity Definitions, "Merger Date" means the date of closing of the Merger Event. In connection with a Share-for-Share or Share-for-Combined Merger Event in (a) or (c) above, then to the extent the consequence of any Merger Event is Alternative Obligation, in addition to any other adjustments in respect of the Merger Event, the Calculation Agent will adjust the Floor Price and the Cap Price as follows (which adjustments, together with the other adjustments in respect of the Merger Event are intended to preserve the economic equivalent value of this Transaction to the parties): (i) as of the Exchange Business Day immediately prior to the Announcement Date, the Calculation Agent will determine an amount (in USD) equal to the change in market value in this Transaction resulting from the substitution of Marketable Securities for the Shares; and (ii) on the Merger Date, the Calculation Agent will adjust the Floor Price and the Cap Price by the amounts necessary, given the then remaining life of this Transaction, to achieve the change in market value determined under clause (i). The Calculation Agent will make its determination under clause (i) using a Transaction maturity from the Exchange Business Day immediately prior to the Announcement Date to the Termination Date and will base its determination on the difference (positive or negative) between 6 40 the Shares and the Marketable Securities with respect to Volatility, Dividend Paid and Stock Loan Rate. For this purpose,"Volatility" and "Stock Loan Rate" mean, respectively, the volatility and stock loan rebate rate agreed to by Counterparty and the Calculation Agent, and "Dividend Paid" means the amount determined by the Calculation Agent to have been the ordinary cash dividend amount paid per the relevant share in the calendar year ending on the Announcement Date (and, in the case of Marketable Securities, shall be zero if the Marketable Securities did not exist prior to the Merger Event). If the parties cannot agree on a Volatility or Stock Loan Rate for the Shares or Marketable Securities prior to the Merger Date, the Calculation Agent will determine the relevant amount by obtaining from each of three leading, independent broker-dealers who actively make markets in transactions similar to this Transaction a quotation for such amount and taking the arithmetic average of the three quotations. In obtaining volatility quotations, the Calculation Agent will ask the quoting dealer to provide the mid-market volatility that the dealer would have provided for this Transaction if the dealer had been asked to enter into the then remainder of this Transaction (in the case of a volatility quotation for Marketable Securities, on Marketable Securities and as otherwise adjusted for the Merger Event) on the Exchange Business Day immediately prior to the Announcement Date. NATIONALIZATION OR INSOLVENCY: Cancellation & Payment - ----------- 3. CALCULATION AGENT: GS&Co. 4. NON-RELIANCE: Each party represents to the other party that it is not relying on any communication (written or oral) of the other party as investment advice or as a recommendation to enter into this Transaction, it being understood that information and explanations related to the terms and conditions of this Transaction shall not be considered investment advice or a recommendation to enter into this Transaction. No communication (written or oral) received from the other party shall be deemed to be an assurance or guarantee as to the expected results of this Transaction. 5. GOVERNING LAW: The laws of the State of New York (without reference to choice of law doctrine) 6. COLLATERAL: On or prior to Trade Date, Counterparty will deposit and thereafter maintain with GS&Co. a number of Shares equal to the Number of Shares (such Shares or other collateral, any distributions thereon or proceeds thereof and any substitutions therefor, the "Pledged Shares" or the "Collateral"). Counterparty represents that (i) it is the legal, record and beneficial owner of all Collateral free of all liens, claims, 7 41 equities and encumbrances and (ii) it has the power and has obtained all of the necessary consents and approvals to grant a first priority security interest to GS&Co. in the Collateral. The Counterparty hereby grants GS&Co. a first priority security interest in, and a first priority lien on, the Collateral as collateral for its obligations under this Transaction and the Agreement. Upon any default by Counterparty (including the occurrence of an Event of Default or Termination Event under the Agreement), GS&Co. shall have all of the rights with respect to the Collateral of a secured party under the New York Uniform Commercial Code. GS&Co. shall not be liable for any loss or damages occasioned by any sale or disposal of the Collateral unless such liability results primarily from the negligence (as determined by a final and nonappealable judgment of a court of competent jurisdiction) or bad faith of GS&Co. In the absence of an Event of Default or a Termination Event or the occurrence of an event which with the passage of time could result in an Event of Default or a Termination Event, GS&Co. shall pay over, or cause to be paid over, to the Counterparty any cash dividends actually received by GS&Co. on the Shares (other than any such dividend which GS&Co. determines in its good faith discretion was not paid by the Issuer in the ordinary course of its business or otherwise constitutes an "extraordinary" dividend). Except in the case where the Collateral has been rehypothecated by GS&Co., the Counterparty shall be entitled to exercise any and all voting and other consensual rights pertaining to the Collateral or any part thereof for any purpose not inconsistent with the terms of this Transaction. Counterparty will faithfully preserve and protect GS&Co.'s security interest in the Collateral, will defend GS&Co.'s right, title, lien and security interest in and to the Collateral against the claims and demands of all persons whomsoever, and will do all such acts and things and deliver all such documents and instruments, including without limitation further pledges, assignments, financing statements and continuation statements, as GS&Co. in its sole discretion 8 42 may reasonably deem necessary or advisable from time to time in order to preserve, protect and perfect such security interest or to enable GS&Co. to exercise or enforce its rights with respect to any Collateral. Counterparty hereby irrevocably appoints GS&Co. as Counterparty's attorney-in-fact for the purpose of taking any action and executing any instrument which GS&Co. may deem necessary or advisable to preserve, protect and perfect such security interest or to enable GS&Co. to exercise or enforce its rights with respect to any Collateral. Counterparty will not permit any lien, security interest, adverse claim, restrictions on transfer or other encumbrance, other than the lien and security interest Counterparty created hereby in favor of GS&Co., to exist upon any of the Collateral. Counterparty will not take any action that could in any way limit or adversely affect the ability of GS&Co. to realize upon its rights in the Collateral. Notwithstanding any limitation otherwise imposed by Section 9-207(2)(e) of the New York Uniform Commercial Code, GS&Co. shall be entitled to pledge, repledge, hypothecate, rehypothecate or further assign (collectively, "rehypothecate") any Collateral delivered to GS&Co. by Counterparty pursuant to this Agreement, subject to the obligation to return such Collateral or equivalent Collateral to Counterparty' PROVIDED, HOWEVER, that no such rehypothecation may occur within 14 calendar days of the Last Sale Date; GS&Co. must use standard market documentation for the type of hypothecation involved; such documentation must provide that GS&Co. can reacquire the Collateral upon not less than three business days' notice; and GS&Co. will exercise that right upon written notice from the Counterparty. 7. REPRESENTATIONS AND Counterparty represents and warrants to, AGREEMENTS OF and agrees with, GS&Co. as follows: COUNTERPARTY: Counterparty (a) has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of entering into the Transaction; (b) is an "eligible swap participant" as defined in the Part 35 Regulations of the U.S. Commodity Futures Trading 9 43 Commission; (c) has consulted with its own legal, financial, accounting and tax advisors in connection with the Transaction; (d) is entering into the Transaction as principal (and not as agent or in any other capacity, fiduciary or otherwise) for a bona fide business purpose in conjunction with its line of business to hedge an existing position and not for purposes of speculation; and (e) has determined that this Transaction is prudent and appropriate in light of its organizational documentation, financial situation and investment objectives and guidelines and policies. As of the date of Counterparty's most recent Schedule 13D filing with the Securities and Exchange Commission, Counterparty was the beneficial owner (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of 15.7% of the outstanding shares of the Issuer. Counterparty is currently, and in the past has been, in compliance with its reporting obligations under Section 13(d) of the Exchange Act. A list of all such Schedule 13D filings is attached as Annex A and copies of all such filings have been provided to GS&Co. Counterparty will provide GS&Co. a draft of the amendment to its Schedule 13D which describes the Transaction and will give GS&Co. a reasonable opportunity to comment on the draft. An amendment to the Schedule 13D will be promptly filed by the Counterparty with the Securities and Exchange Commission. Counterparty will comply with its obligations in Section 14(i) of the Confirmation in connection with future filings under Section 13(d) of the Exchange Act made on or after the date of this Confirmation. Neither Counterparty nor any of its Affiliates is in possession of any non-public material information regarding the Issuer; and, during the period that GS&Co. effects sales of Shares pursuant to Section 2 hereof, Counterparty will notify by telephone Alexandra Antoniadis (Telephone: (212) 902-9509) promptly upon coming into possession of any such material non-public information (such telephonic notice to be promptly confirmed in writing). In the event that Counterparty so notifies such personnel of GS&Co. during the Sale Period, GS&Co. will as promptly as practicable discontinue the sale of the Shares, and the Number of Shares will be 10 44 reduced to such number as GS&Co. has sold prior to its discontinuing such sales and the date such sales are discontinued will be the Last Sale Date. Counterparty and its affiliates have not sold, or contracted to sell, any Shares (or any other security or instrument that will be subject to aggregation under Rule 144(e)) or any beneficial interest therein during the three-month period and have not sold or purchased, or contracted to sell or purchase, any Shares (or any other security or derivative security that would be subject to reporting under Section 16 of the Exchange Act) or any beneficial interest therein during the six-month period ending on the date of this Confirmation, except as reported on Counterparty's Form 144 and Form 4 and Form 5 filings with the SEC or as otherwise listed on Annex A. Counterparty shall comply with the reporting and other requirements of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder. The Pledged Shares are not subject to any restrictions on transfer other than those arising under federal or state securities laws. No Pledged Shares are entitled to the benefits of any registration rights agreement or similar agreement except pursuant to the agreement identified in Annex B hereto (the "Registration Rights Agreement"). Within the last month, Counterparty has not offered any Shares through any prospectus or other offering document. During the Sale Period, Counterparty will not exercise any of its rights under the Registration Rights Agreement in respect of any Shares or permit any Shares to be included in a registered offering without GS&Co.'s prior written consent. Assuming that the terms of the Transaction are consistent with the terms of a "Contract" as described in Section I.A. of the Goldman, Sachs & Co. (December 20, 1999) interpretive letter (the "Interpretive Letter"), and based on the representation of GS&Co. below, the Shares to be delivered on Physical Settlement shall be freely transferable to the public without any restrictions whatsoever. Counterparty will not take any action so as to cause the terms of the Transaction not to comply with Section I.A. of the Interpretive Letter. Counterparty has furnished GS&Co. with copies of all agreements, contracts or instruments that relate to the Pledged Shares. 11 45 The Pledged Shares are transferable by the Counterparty to the public pursuant to Rule 144 under the Securities Act. Counterparty acknowledges and agrees that (i) assuming that the terms of the Transaction are consistent with the terms of a "Contract" as described in Section I.A. of the Interpretive Letter, and based on the representation of GS&Co. below, the entering into of this Confirmation will constitute a "sale" of the Pledged Shares for purposes of Rule 144, (ii) Counterparty has not taken and will not take any action that would cause such sale to exceed the volume limitation of Rule 144(e), (iii) Counterparty has not taken and will not take any action that could cause the sale pursuant to this Confirmation not to comply with Rule 144, (iv) Counterparty will transmit a Form 144 for filing with the Securities and Exchange Commission simultaneously with the execution of this Confirmation and such Form 144 shall be in a form reasonably acceptable to GS&Co., (v) Counterparty will deliver a representation letter to GS&Co. in a form customarily used by GS&Co. simultaneous with the execution of this Confirmation and each representation, warranty and agreement in such representation letter shall be deemed to be incorporated into this Confirmation and (vi) upon the Last Sale Date, Counterparty agrees to transmit for filing with the Securities and Exchange Commission an amendment to the previously filed Form 144 in a form reasonably acceptable to GS&Co. Counterparty is not and has not been the subject of any civil proceeding of a judicial or administrative body of competent jurisdiction that could reasonably be expected to impair Counterparty's ability to perform its obligations hereunder. Within three Business Days after any financial officer of Counterparty obtains knowledge of an Event of Default or the occurrence of any event that with the giving of notice, the lapse of time or both would be such an Event of Default, Counterparty will immediately notify GS&Co. of the occurrence of such Event of Default. Counterparty has filed or caused to be filed all material tax returns that are required to be filed by Counterparty and has paid all material taxes shown to be due and payable on said returns or on any assessment made against Counterparty or any of Counterparty's property and all other material taxes, 12 46 assessments, fees, liabilities or other charges imposed on Counterparty or any of Counterparty's property by any governmental authority. Counterparty was not or will not be insolvent at the time this Transaction is consummated, and was not or will not be rendered insolvent or will not be insolvent as a result thereof. Counterparty has not engaged and will not engage in any business or transaction with GS&Co. after which the property remaining with Counterparty was or will be unreasonably small in relation to its business. At the time of any transfer to or for the benefit of GS&Co., Counterparty did not intend or will not intend to incur, and did not incur or will not incur, debts that were beyond the ability of Counterparty to pay as they mature. GS&Co. hereby represents and warrants to, and agrees with, Counterparty that the sale of Shares by GS&Co. during the Sale Period will comply with the manner of sale requirements of Rule 144(f) and (g). 8. ACKNOWLEDGMENTS: The parties hereto intend for: (i) This Transaction to be a "securities contract" as defined in Section 741(7) of the Bankruptcy Code (Title 11 of the United States Code) (the "Bankruptcy Code"), qualifying for protection under Section 555 of the Bankruptcy Code; (ii) A party's right to liquidate this Transaction and to exercise any other remedies upon the occurrence of any Event of Default under the Agreement with respect to the other party to constitute a "contractual right" as defined in the Bankruptcy Code. (iii) Any cash, securities or other property provided as performance assurance, credit support or collateral with respect to this Transaction to constitute "margin payments" as defined in the Bankruptcy Code. (iv) All payments for, under or in connection with this Transaction, all payments for the Shares and the transfer of such Shares to constitute "settlement payments" as defined in the Bankruptcy Code. 9. INDEMNIFICATION: Counterparty agrees to indemnify and hold harmless 13 47 GS&Co., its Affiliates and its assignees and their respective directors, officers, employees, agents and controlling persons (GS&Co. and each such person being an "Indemnified Party") from and against any and all losses, claims, damages and liabilities, joint or several, to which such Indemnified Party may become subject, and relating to or arising out of any of the transactions contemplated by this Confirmation, and will reimburse any Indemnified Party for all expenses (including reasonable counsel fees and expenses) as they are incurred in connection with the investigation of, preparation for or defense or settlement of any pending or threatened claim or any action, suit or proceeding arising therefrom, whether or not such Indemnified Party is a party and whether or not such claim, action, suit or proceeding is initiated or brought by or on behalf of Counterparty. Counterparty will not be liable under the foregoing indemnification provision to the extent that any loss, claim, damage, liability or expense results primarily from the negligence (as determined by a final and nonappealable judgment of a court of competent jurisdiction) or bad faith of GS&Co. If for any reason the foregoing indemnification is unavailable to any Indemnified Party or insufficient to hold harmless any Indemnified Party, then Counterparty shall contribute, to the maximum extent permitted by law, to the amount paid or payable by the Indemnified Party as a result of such loss, claim, damage or liability. Counterparty also agrees that no Indemnified Party shall have any liability to Counterparty or any person asserting claims on behalf of or in right of Counterparty in connection with or as a result of any matter referred to in this Confirmation or the Agreement except to the extent that any losses, claims, damages, liabilities or expenses incurred by Counterparty result primarily from the negligence (as determined by a final and nonappealable judgment of a court of competent jurisdiction) or bad faith of the Indemnified Party. The provisions of this Section 9 shall survive completion of the Transaction contemplated by this Confirmation and any assignment and delegation pursuant to Section 14(a) of this Confirmation. 10. TERMINATION PROVISIONS: (a) Sections 5(a)(v), 5(a)(vi), 5(a)(vii), 5(a)(viii), and 5(b)(iv) shall not apply to GS&Co. 14 48 (b) "SPECIFIED TRANSACTION" will have the meaning specified in Section 14 of the Agreement, except that it will also include any forward transactions in securities and any margin loan or extension of credit by GS&Co. to Counterparty. (c) (i) The "CROSS DEFAULT" provisions of Section 5(a)(vi) of the Agreement as amended will apply to Counterparty; and Section 5(a)(vi) of the Agreement is hereby amended by deleting in the seventh line thereof the words ", or becoming capable at such time of being declared,". (ii) "SPECIFIED INDEBTEDNESS" will have the meaning specified in Section 14 of the Agreement, except as excluded in the proviso to this definition, and shall include for the avoidance of doubt, all reimbursement obligations in respect of letters of credit or financial guaranty insurance or surety bonds issued for the account of that person; provided however, that obligations in respect of interbank deposits received by GS&Co. shall not constitute Specified Indebtedness for the purposes of clause (2) of Section 5(a)(vi) of the Agreement to the extent they are not paid when due only as the result of inadvertence or administrative error. (iii) "THRESHOLD AMOUNT" means U.S. $100,000,000 or its equivalent in another currency. (d) Each of Section 5(a)(vii)(4)(B) and Section 5(a)(vii)(7) of the Agreement is hereby amended by deleting the number "30" and replacing it with the number "90". (e) Section 5(a)(viii) of the Agreement is hereby amended by deleting the introductory paragraph in its entirety and replacing it with the following: "The party consolidates or amalgamates with, or merges with or into, or transfers all or substantially all its assets to, or reorganizes, incorporates, reincorporates, or reconstitutes into or as, another entity and, at the time of such consolidation, amalgamation, merger, transfer, reorganization, incorporation, reincorporation or reconstitution." 15 49 (f) Section 5(b)(iv) of the Agreement is hereby amended by: (i) deleting in the fourth line thereof the words "another entity" and replacing them with the words "or reorganizes, incorporates, reincorporates, reconstitutes, or reforms into or as, or receives all or substantially all of the assets and/or liabilities or obligations of, another entity or X, such Specified Entity effects a recapitalization, liquidating dividend, leveraged buy-out, other similar highly-leveraged transaction, redemption of indebtedness, or stock buy-back or similar call on equity"; (ii) deleting in the fifth line thereof the words "the resulting, surviving or transferee" and replacing them with the words "X, such Specified Entity or any resulting, surviving, transferee, reorganized, reconstituted, reformed, or recapitalized"; and (iii) deleting in the seventh line thereof the words "its successor or transferee" and replacing them with the words "any resulting, surviving, transferee, reorganized, reconstituted, reformed or recapitalized entity". (g) The "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(iv) as amended above will apply to Counterparty. Notwithstanding Section 5(b)(iv) of the Agreement, "Credit Event Upon Merger" means that a Designated Event (as defined below) occurs with respect to a party and such action does not constitute an event described in Section 5(a)(viii) of the Agreement but, after the occurrence of the Designated Event, the successor, surviving or transferee entity (which will be the Affected Party) has a credit rating of BB+ from Standard & Poor's Ratings Group or Ba1 from Moody's Investors Service Corporation or a lower rating from either such rating agency. For the purposes hereof, a "Designated Event" means, with respect to a party, that after the Trade Date of a Transaction: (i) the party consolidates or amalgamates with, or merges with or into, or transfers all or substantially all its assets (or any substantial part of the assets comprising the business conducted by that party as of the Trade Date of that Transaction) to, or receives all or substantially all the assets and obligations of, another entity; (ii) any person as defined for purposes of Section 13(d) under the Securities Exchange Act of 1934, as amended as of the Trade Date (the "Exchange Act"), or entity or group (as defined for purposes of Section 13(d) under the Exchange 16 50 Act) acquires directly or indirectly the beneficial ownership (as defined for purposes of Section 13(d) under the Exchange Act) of equity securities having the power to elect a majority of the board of directors of the party; or (iii) the party enters into any agreement providing for any of the foregoing. (h) The "AUTOMATIC EARLY TERMINATION" provision of Section 6(a) will not apply to GS&Co. and will apply to Counterparty. (i) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e): (i) Loss will apply. (ii) The Second Method will apply. (j) "TERMINATION CURRENCY" means United States Dollars. 11. TAX REPRESENTATIONS. (a) PAYER REPRESENTATIONS. For purposes of Section 3(e) of the Agreement, GS&Co. and Counterparty each make the following representation: It is not required by any applicable law, as modified by the practice of any relevant governmental revenue authority, of any Relevant Jurisdiction to make any deduction or withholding for or on account of any Tax from any payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) of the Agreement) to be made by it to the other party under the Agreement. In making this representation, it may rely on (i) the accuracy of any representations made by the other party pursuant to Section 3(f) of the Agreement, (ii) the satisfaction of the agreement contained in Section 4(a)(i) or 4(a)(iii) of the Agreement and the accuracy and effectiveness of any document provided by the other party pursuant to Section 4(a)(i) or 4(a)(iii) of the Agreement, and (iii) the satisfaction of the agreement of the other party contained in Section 4(d) of the Agreement, provided that it shall not be a breach of this representation where reliance is placed on Clause (ii) and the other party does not deliver a form or 17 51 document under Section 4(a)(iii) by reason of material prejudice to its legal or commercial position. (b) PAYEE REPRESENTATIONS. For the purpose of Section 3(f) of the Agreement; Counterparty represents that is a corporation organized under the laws of the State of Ohio and it is not a foreign person for United States federal income tax purposes. GS&Co. represents that it is a limited partnership organized under the laws of the State of New York and it is not a foreign person for United States federal income tax purposes. 12. AGREEMENT TO DELIVER DOCUMENTS. For the purpose of Section 4(a), each party agrees to deliver the following documents, as applicable: (a) Tax forms, documents, or certificates to be delivered are: None (b) Other documents to be delivered are:
COVERED BY PARTY REQUIRED TO DATE BY WHICH SECTION 3(D) DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE TO BE DELIVERED REPRESENTATION ---------------- ------------------------- --------------- -------------- Counterparty Certified incumbency certificate or At execution of this Yes other evidence of authority and Agreement specimen signatures with respect to Counterparty and its signatories Counterparty Annual Financial Statement of Within 90 days of the Yes Counterparty last day of each calendar year, with respect to financial statements relating to such calendar year. Counterparty Interim Financial Statement of Promptly following Counterparty demand by Party A
18 52
COVERED BY PARTY REQUIRED TO DATE BY WHICH SECTION 3(d) DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE TO BE DELIVERED REPRESENTATION ---------------- ------------------------- --------------- -------------- Counterparty Evidence reasonably satisfactory to At execution of this Yes and GS&Co. the other party of the signing Agreement and authority and specimen signature of thereafter on request any individual executing this Agreement, any Credit Support Document and any Confirmation on its behalf
13. MISCELLANEOUS. (a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a): Address for notices or communications to GS&Co.: Address: 85 Broad Street New York, New York 10004, U.S.A. Attention: Alexandra Antoniadis Telex No.: 12-5654 Answerback: GOLSAX Facsimile No.: 212-902-2065 Telephone No.: 212-902-9509 Electronic Messaging System Details: None. With a copy to: Address: 85 Broad Street New York, New York 10004, U.S.A. Attention: Treasury Administration Telex No.: 421344 Answerback: GOLSAX Facsimile No.: 212-902-3325 Telephone No.: 212-902-1000 Electronic Message System Details: None. 19 53 Address for notices or communications to Counterparty: Address: 1900 Richmond Road Lyndhurst, Ohio 44124, U.S.A. Attention: Ronald P. Vargo Cc: Secretary Telex No.: None Answerback: None Facsimile No.: (216) 291-7831 Telephone No.: (216) 291-7500 Electronic Message System Details: None. (b) OFFICES; MULTIBRANCH PARTIES. (i) The provisions of Section 10(a) will be applicable. (ii) For the purpose of Section 10(c): GS&Co. is not a Multibranch Party. Counterparty is not a Multibranch Party. (c) JURISDICTION. Section 13(b) of the Agreement is hereby amended by: (i) deleting in the second line of Subparagraph (i) thereof the word "non"; and (ii) deleting the final paragraph thereof. (d) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) of the Agreement will not apply to Transactions. (e) "WAIVER OF JURY TRIAL". To the extent permitted by applicable law, each party irrevocably waives any and all right to trial by jury in any legal proceeding in connection with the Agreement or any Transaction. (f) PROCESS AGENT. For the purpose of Section 13(c): GS&Co. appoints as its Process Agent: None Counterparty appoints as its Process Agent in the Borough of Manhattan in New York City: Name: CT Corporation System 20 54 Address: 111 Eighth Avenue Telex No.: None Answerback: None Facsimile No.: None Telephone No.: (212) 894-8440 (g) "Annual Financial Statements" means a certified balance sheet and income statement of such party's assets, liabilities and results of operations, certified by a public accountant of national recognition and reputation and prepared in accordance with accounting principles that are generally accepted in the United States of America, as of the end of the most recent fiscal year. (h) "Interim Financial Statements" means a balance sheet and income statement setting forth such party's assets, liabilities and results of operations in accordance with Regulation S-X. 21 55 14. OTHER PROVISIONS. (a) TRANSFER. Section 7 of the Agreement is replaced in its entirety by the following: GS&Co. may assign its rights and delegate its obligations under any Transaction, in whole or in part, to any affiliate (an "Assignee") of GS&Co. effective (the "Affiliate Effective Date") upon delivery to Counterparty of an executed acceptance and assumption by the Assignee (an "Assumption") of the transferred obligations of GS&Co. under the Transaction (the "Transferred GS&Co. Obligations") and GS&Co. may assign its rights and delegate its obligations under any Transaction, in whole or in part, to a third party that has a long- term, unsubordinated debt rating of A- as rated by Standard & Poor's Ratings Group and A3 as rated by Moody's Investor Services Corporation effective (the "Third Party Effective Date") upon delivery to Counterparty of an executed Assumption by the third party of the Transferred GS&Co. Obligations under the Transaction. On the Affiliate Party Effective Date or the Third Party Effective Date, GS&Co. shall be released from all obligations and liabilities arising under or with respect to the Transferred GS&Co. Obligations, except GS&Co. will retain its rights under Section 9 of this Confirmation. With the prior written consent of GS&Co., which shall not be unreasonably withheld, Counterparty may assign its rights and delegate its obligations under any Transaction, in whole or in multiples of not less than 100,000 Shares, to a third party effective upon delivery to GS&Co. of an Assumption of the transferred obligations of Counterparty under the Transaction ("the Transferred Counterparty Obligations"), provided that such third party (i) is not an "affiliate" (as used for purposes of Section 2(a)(11) of the Securities Act) of the Issuer and delivers to GS&Co. evidence reasonably satisfactory to it to evidence this fact, (ii) delivers to GS&Co. a number of Shares equal to the product of (a) a fraction, the numerator of which is the maximum number of Shares subject to the Transferred Counterparty Obligations and the denominator is the Number of Shares and (b) the Number of Shares, as Collateral for its obligations, which Shares shall be freely transferable to the public without any restrictions on transfer whatsoever, and grants to GS&Co. a first priority security interest in, and a first priority lien on, the Collateral and (iii) makes the same representations, warranties, covenants and agreements as Counterparty in this Confirmation, except those that relate to Rule 144 of the Securities Act, and those that relate to Sections 13 and 16 of the Exchange Act to the extent that such third party is (and remains) not subject to the reporting obligations under those Sections. Upon delivery to GS&Co. of an executed Assumption by the third party of the Transferred Counterparty Obligations under the Transaction, Counterparty shall be released from all obligations and liabilities arising under or with respect to the Transferred Counterparty Obligations, except Section 9 shall continue to apply as between Counterparty and GS&Co. (b) SEVERABILITY. If any term, provision, covenant, or condition of this Confirmation, or the application thereof to any party or circumstance, shall be held to be invalid or unenforceable (in whole or in part) for any reason, the remaining terms, provisions, covenants, and conditions hereof shall continue in full force and effect as if this Confirmation had been executed with the invalid or unenforceable portion eliminated, so long as this Confirmation as so modified continues to express, without material change, the original intentions of the parties as to the subject matter of this Confirmation and the deletion of such portion of this Confirmation will 22 56 not substantially impair the respective benefits or expectations of the parties to this Confirmation ; provided, however, that this severability provision shall not be applicable if any provision of Section 2, 5, 6, or 13 of the Agreement (or any definition or provision in Section 14 to the extent it relates to, or is used in or in connection with any such Section) shall be so held to be invalid or unenforceable. (c) BINDING EFFECT. This Confirmation shall bind and inure to the benefit of GS&Co. and Counterparty and their respective heirs, distributees, executors, personal representatives and administrators and permitted successors and assigns." (d) DEFINITIONS. The definition of "law" in Section 14 of this Agreement is hereby amended by the insertion of the words "either generally or with respect to a party to this agreement" after the phrase "any relevant governmental revenue authority" and the addition of the words "Change in Tax Law," before the word "lawful" in the second line. For the purposes of this Agreement, "Contractual Currency" means United States Dollars. (e) DEALINGS IN THE SHARES. Counterparty hereby acknowledges and agrees that GS&Co. and its Affiliates may engage in proprietary trading for their accounts in the Shares (and related securities) and that such trading may affect the value of the Shares and the amounts payable hereunder. (f) DEFAULT UNDER SPECIFIED TRANSACTIONS. Section 5(a)(v)(2) of the Agreement is hereby amended by replacing the words "the last" with the word "any". (g) CONDITIONS PRECEDENT. The condition precedent set forth in clause (1) of Section 2(a)(iii) of the Agreement shall not apply to payments scheduled to be made by Counterparty to GS&Co. under this Confirmation. (h) CONFIDENTIALITY. Each party considers its participation in each and any Transaction and the details thereof (collectively, the "Information") to constitute confidential and valuable business information. Accordingly, each party agrees to keep the Information strictly confidential and not to disclose it (or any portion thereof) to any third party except (i) with the prior written consent of the other party or (ii) pursuant to the demand, request or requirement of any law, court, regulatory or self-regulatory agency having jurisdiction over a party or pursuant to Rule 144 under the Securities Act or Section 13(d) of the Exchange Act. In such a case, Counterparty will notify GS&Co. reasonably in advance of any requirement or pending request for the disclosure of any Information and prior to the disclosure shall take all such actions reasonably requested by GS&Co. to preserve the confidentiality of such Information. (i) GROSS UP. The third line of Section 2(d)(i) of the Agreement is hereby amended by the insertion before the phrase "of any relevant governmental revenue authority" of the words ", application or official interpretation" and the insertion of the words "(either generally or with respect to a party to this Agreement)" after such phrase. (j) MAINTAIN AUTHORIZATIONS. Section 4(b) of the Agreement is hereby amended by deleting the words "use all reasonable efforts to" from the first and third lines thereof. 23 57 (k) REPRESENTATIONS. (i) Section 3(a)(iii) of the Agreement is hereby amended by inserting the word "material" between the words "any" and "contractual" in the third line thereof. (ii) Section 3(c) of the Agreement is hereby amended by deleting the words "or any of its affiliates" from the first and second lines thereof. 24 58 Please confirm that the foregoing correctly sets forth the terms of our agreement by executing the copy of this Confirmation enclosed for the purpose and returning it to us by facsimile transmission to the Attention of: Equity Derivatives Documentation Department (Telecopier No. (212) 428-1980/1983). Very truly yours, GOLDMAN, SACHS & CO. By: -------------------------- Name: Title: Confirmed as of the date first above written: - ---------------- By: -------------------------- Name: Title: 25 59 Exhibit 3.14 Ref: Date: February 10, 2000 To: TRW Inc. ("Counterparty") Attention: Ronald P. Vargo, Vice President and Treasurer Tel: (216) 291-7500 Fax: (216) 291-7831 From: Goldman, Sachs & Co ("GS&Co.") Tel: (212) 902-1981 Fax: (212) 428-1980 - -------------------------------------------------------------------------------- Dear Sir/Madam: The purpose of this letter agreement (this "Confirmation") is to confirm the terms and conditions of the above referenced transaction entered into between Counterparty and GS&Co. on the Trade Date specified below (the "Transaction"). This Confirmation constitutes a "Confirmation" as referred to in the Master Agreement specified below. The definitions and provisions contained in the 1991 ISDA Definitions (as supplemented by the 1998 Supplement, the "Swap Definitions") and in the 1996 ISDA Equity Derivatives Definitions (the "Equity Definitions", and together with the Swap Definitions, the "Definitions"), in each case as published by the International Swaps and Derivatives Association, Inc., are incorporated into this Confirmation. In the event of any inconsistency between the Swap Definitions and the Equity Definitions, the Equity Definitions will govern. In the event of any inconsistency between this Confirmation and the Agreement (as defined below) or the Definitions, the terms of this Confirmation shall govern. For purposes of the Equity Definitions, this Transaction will be deemed to be a Physically-settled Share Option Transaction with an Exercise Date equal to the Valuation Date. For purposes of Section 4.4 of the Equity Definitions, the Settlement Date will be treated as if it were a Cash Settlement Payment Date. References to "Option Entitlement" in Section 9.3(b)(i)(A) of the Equity Definitions shall be deemed to be references to a "Number of Shares". References to an "option" in Section 9.7 of the Equity Definitions shall be deemed to be references to a "forward". 1. (a) If GS&Co. and Counterparty are parties to an executed 1992 ISDA Master Agreement (Multicurrency-Cross Border) (the "Agreement"), this Confirmation supplements, forms part of, and is subject to, such executed Agreement. This Confirmation shall be read and construed as one with such Agreement and all other outstanding Confirmations between GS&Co. and Counterparty, so that all such Confirmations and such Agreement constitute a single agreement between GS&Co. and Counterparty. 60 (b) If GS&Co. and Counterparty are not yet parties to a Agreement, this Confirmation (and each Confirmation in respect of each previous and subsequent Transaction between us) shall be deemed to supplement, form a part of, and be subject to (a) a single, standard form Agreement, as if such an agreement had been executed by and between GS&Co. and Counterparty without elections, changes or modifications thereto (other than as made herein), governed by and construed in accordance with the law of the State of New York, without reference to choice of law doctrine, and (b) upon due execution by GS&Co. and Counterparty, and notwithstanding clause (a) above, the Agreement that sets forth the general terms and conditions applicable to Transactions between GS&Co. and Counterparty. In addition, if the Agreement has not been executed by GS&Co. and Counterparty, this Confirmation will itself evidence a complete and binding agreement between GS&Co. and Counterparty as to the terms of this Transaction. This Confirmation, all other Confirmations between GS&Co. and Counterparty, and the applicable Agreement shall constitute a single agreement between GS&Co. and Counterparty. All provisions contained or incorporated by reference in the Agreement between GS&Co. and Counterparty shall govern this Transaction except as expressly modified below. 2. The terms of the particular Transaction to which this Confirmation relates are as follows: GENERAL TERMS: - -------------- Trade Date: February 10, 2000 Termination Date: February 10, 2004 (or if not an Exchange Business Day, the next succeeding Exchange Business Day). Seller: Counterparty Buyer: GS&Co. Shares: The common stock of RF Micro Devices, Inc. (Symbol: RFMD) Issuer: RF Micro Devices, Inc. Number of Shares: 666,666, subject to adjustment as provided in "Sale Period" below. Floor Price: 100.00% of the Agency Execution Price. Cap Price: 172.75% of the Agency Execution Price. 2 61 Final Price: The arithmetic mean of the Relevant Prices of the Shares on each Averaging Date. Prepayment Amount: 74.72% of the Agency Execution Price x the Number of Shares. Agency Execution Price: The average price per share at which GS&Co. effects sales of Shares as described under "Sale Period" below. Prepayment Date: The third Currency Business Day following the Last Sale Date (as defined in "Sale Period" below). Prepayment: On the Prepayment Date, GS&Co. shall pay Counterparty the Prepayment Amount in immediately available funds as payment in full for the Number of Shares to Be Delivered. GS&Co. shall have no payment or delivery obligations pursuant to this Confirmation other than the payment of the Prepayment Amount on the Prepayment Date. Settlement Currency: USD Exchange: NASDAQ Related Exchange: CBOE SALE PERIOD: - ------------ Between the Trade Date and the twentieth Exchange Business Day immediately following the Trade Date (the "Last Sale Date"), GS&Co. will make a good faith effort to sell the full Number of Shares. Upon the earlier of (i) the sale of the Number of Shares or (ii) the Last Sale Date, GS&Co. shall provide written notice to Counterparty of the Agency Execution Price resulting therefrom and the Prepayment Amount . GS&Co.'s calculations of the Agency Execution Price and the Prepayment Amount shall be conclusive absent manifest error. If GS&Co. does not sell the full Number of Shares by the close of the Exchange on the Last Sale Date, GS&Co. shall promptly give notice to Counterparty that the Number of Shares shall be reduced to such number as GS&Co. has sold pursuant to this paragraph. VALUATION: - ---------- Valuation Time: At the close of trading in respect of regular trading hours on the Exchange, without regard to extended trading hours on the Exchange, if any. Valuation Date: The Termination Date 3 62 Averaging Dates: Each of the five Exchange Business Days commencing on, and including, February 4, 2004 to and including the Valuation Date. Averaging Date Market Disruption: Modified Postponement SETTLEMENT TERMS: Settlement of this Transaction shall be ----------------- Physical Settlement. Physical Settlement: On the Settlement Date, Counterparty will deliver to GS&Co. the Number of Shares to be Delivered. Number of Shares to be Delivered: A number of Shares determined by the Calculation Agent on the Valuation Date based on the following formula: a) if the Final Price is less than the Floor Price, a number of Shares equal to: Number of Shares b) if the Final Price is less than or equal to the Cap Price but greater than or equal to the Floor Price, a number of Shares equal to: Floor Price x Number of Shares ----------- Final Price and c) if the Final Price is greater than the Cap Price, a number of Shares equal to: Final Price-(Cap Price-Floor Price) -----------------------------------X Number of Shares Final Price
Settlement Date: Three (3) Exchange Business Days after the Valuation Date. Failure to Deliver: Inapplicable Delivery of Number of Shares to be Delivered: On the Settlement Date, Counterparty shall satisfy its delivery obligation by delivering to GS&Co. the number of Pledged Shares (or other Shares acceptable to GS&Co.) equal to the Number of the Shares to be Delivered. 4 63 ADJUSTMENTS: - ------------ Method of Adjustment: In the event of the occurrence of a Potential Adjustment Event, the Calculation Agent will determine whether such Potential Adjustment Event has a diluting or concentrative effect on the theoretical value of the Shares and, if so, will (i) make the corresponding adjustment(s), if any, to the Number of Shares, the Floor Price and the Cap Price and, in any case, any other variable relevant to the settlement or payment terms of this Transaction as the Calculation Agent determines appropriate to account for that diluting or concentrative effect and (ii) determine the effective date(s) of the adjustment(s). For the avoidance of doubt, in connection with the adjustments made pursuant to the preceding sentence, if as a result of a Potential Adjustment Event existing holders of Shares receive a distribution or dividend of securities (other than Shares) that are Marketable Securities (the "Additional Shares"), then the term "Shares" will mean a basket of Shares composed of the original Shares and the Additional Shares and this Transaction will become a Share Basket Transaction. "Marketable Securities" means equity securities that are publicly traded on a United States national securities exchange or quoted on the Nasdaq National Market. Dividend Adjustment: If the Shares are subject to a cash dividend in excess of the Regular Dividend, then on the ex-dividend date for the payment of each such dividend the Calculation Agent will reduce the Floor Price and the Cap Price by the amount per Share of each such dividend in excess of the Regular Dividend. For the avoidance of doubt, if as a result of any Merger Event or Potential Adjustment Event (or any combination thereof) the Shares are adjusted to include the Shares of an issuer other than the initial Issuer or of more than one issuer (whether or not including the initial Issuer), then such adjustment shall apply with respect to any cash dividends to which the successor or additional Shares of the applicable issuer(s) are subject. "Regular Dividend" means $0.00 per share per quarter. EXTRAORDINARY EVENTS: - --------------------- Consequences of Merger Event: 5 64 (a) Share-for-Share: Cancellation and Payment: provided, however, if the New Shares are Marketable Securities, Alternative Obligation shall apply. (b) Share-for-Other: Cancellation and Payment. (c) Share-for-Combined: Cancellation and Payment; provided, however, if any portion of the consideration for the relevant shares consists of Marketable Securities (the "Marketable Securities Consideration"), Alternative Obligation shall apply to that portion of the Transaction corresponding to the Marketable Securities Consideration. Notwithstanding anything to the contrary in the Equity Definitions, the amount payable under this Transaction upon the occurrence of a Merger Event, Nationalization or Insolvency shall be calculated by the Calculation Agent in good faith in accordance with Section 9.7 of the Equity Definitions using, among other things, the factors identified in subparagraphs (i), (ii) and (iii) therein, but without the requirement of soliciting dealer quotations therefor. Notwithstanding Section 9.2(b) of the Equity Definitions, "Merger Date" means the date of closing of the Merger Event. In connection with a Share-for-Share or Share-for-Combined Merger Event in (a) or (c) above, then to the extent the consequence of any Merger Event is Alternative Obligation, in addition to any other adjustments in respect of the Merger Event, the Calculation Agent will adjust the Floor Price and the Cap Price as follows (which adjustments, together with the other adjustments in respect of the Merger Event are intended to preserve the economic equivalent value of this Transaction to the parties): (i) as of the Exchange Business Day immediately prior to the Announcement Date, the Calculation Agent will determine an amount (in USD) equal to the change in market value in this Transaction resulting from the substitution of Marketable Securities for the Shares; and (ii) on the Merger Date, the Calculation Agent will adjust the Floor Price and the Cap Price by the amounts necessary, given the then remaining life of this Transaction, to achieve the change in market value determined under clause (i). The Calculation Agent will make its determination under clause (i) using a Transaction maturity from the Exchange Business Day immediately prior to the Announcement Date to the Termination Date and will base its determination on the difference (positive or negative) between 6 65 the Shares and the Marketable Securities with respect to Volatility, Dividend Paid and Stock Loan Rate. For this purpose,"Volatility" and "Stock Loan Rate" mean, respectively, the volatility and stock loan rebate rate agreed to by Counterparty and the Calculation Agent, and "Dividend Paid" means the amount determined by the Calculation Agent to have been the ordinary cash dividend amount paid per the relevant share in the calendar year ending on the Announcement Date (and, in the case of Marketable Securities, shall be zero if the Marketable Securities did not exist prior to the Merger Event). If the parties cannot agree on a Volatility or Stock Loan Rate for the Shares or Marketable Securities prior to the Merger Date, the Calculation Agent will determine the relevant amount by obtaining from each of three leading, independent broker-dealers who actively make markets in transactions similar to this Transaction a quotation for such amount and taking the arithmetic average of the three quotations. In obtaining volatility quotations, the Calculation Agent will ask the quoting dealer to provide the mid-market volatility that the dealer would have provided for this Transaction if the dealer had been asked to enter into the then remainder of this Transaction (in the case of a volatility quotation for Marketable Securities, on Marketable Securities and as otherwise adjusted for the Merger Event) on the Exchange Business Day immediately prior to the Announcement Date. NATIONALIZATION OR INSOLVENCY: Cancellation & Payment - ----------- 3. CALCULATION AGENT: GS&Co. 4. NON-RELIANCE: Each party represents to the other party that it is not relying on any communication (written or oral) of the other party as investment advice or as a recommendation to enter into this Transaction, it being understood that information and explanations related to the terms and conditions of this Transaction shall not be considered investment advice or a recommendation to enter into this Transaction. No communication (written or oral) received from the other party shall be deemed to be an assurance or guarantee as to the expected results of this Transaction. 5. GOVERNING LAW: The laws of the State of New York (without reference to choice of law doctrine) 6. COLLATERAL: On or prior to Trade Date, Counterparty will deposit and thereafter maintain with GS&Co. a number of Shares equal to the Number of Shares (such Shares or other collateral, any distributions thereon or proceeds thereof and any substitutions therefor, the "Pledged Shares" or the "Collateral"). Counterparty represents that (i) it is the legal, record and beneficial owner of all Collateral free of all liens, claims, 7 66 equities and encumbrances and (ii) it has the power and has obtained all of the necessary consents and approvals to grant a first priority security interest to GS&Co. in the Collateral. The Counterparty hereby grants GS&Co. a first priority security interest in, and a first priority lien on, the Collateral as collateral for its obligations under this Transaction and the Agreement. Upon any default by Counterparty (including the occurrence of an Event of Default or Termination Event under the Agreement), GS&Co. shall have all of the rights with respect to the Collateral of a secured party under the New York Uniform Commercial Code. GS&Co. shall not be liable for any loss or damages occasioned by any sale or disposal of the Collateral unless such liability results primarily from the negligence (as determined by a final and nonappealable judgment of a court of competent jurisdiction) or bad faith of GS&Co. In the absence of an Event of Default or a Termination Event or the occurrence of an event which with the passage of time could result in an Event of Default or a Termination Event, GS&Co. shall pay over, or cause to be paid over, to the Counterparty any cash dividends actually received by GS&Co. on the Shares (other than any such dividend which GS&Co. determines in its good faith discretion was not paid by the Issuer in the ordinary course of its business or otherwise constitutes an "extraordinary" dividend). Except in the case where the Collateral has been rehypothecated by GS&Co., the Counterparty shall be entitled to exercise any and all voting and other consensual rights pertaining to the Collateral or any part thereof for any purpose not inconsistent with the terms of this Transaction. Counterparty will faithfully preserve and protect GS&Co.'s security interest in the Collateral, will defend GS&Co.'s right, title, lien and security interest in and to the Collateral against the claims and demands of all persons whomsoever, and will do all such acts and things and deliver all such documents and instruments, including without limitation further pledges, assignments, financing statements and continuation statements, as GS&Co. in its sole discretion 8 67 may reasonably deem necessary or advisable from time to time in order to preserve, protect and perfect such security interest or to enable GS&Co. to exercise or enforce its rights with respect to any Collateral. Counterparty hereby irrevocably appoints GS&Co. as Counterparty's attorney-in-fact for the purpose of taking any action and executing any instrument which GS&Co. may deem necessary or advisable to preserve, protect and perfect such security interest or to enable GS&Co. to exercise or enforce its rights with respect to any Collateral. Counterparty will not permit any lien, security interest, adverse claim, restrictions on transfer or other encumbrance, other than the lien and security interest Counterparty created hereby in favor of GS&Co., to exist upon any of the Collateral. Counterparty will not take any action that could in any way limit or adversely affect the ability of GS&Co. to realize upon its rights in the Collateral. Notwithstanding any limitation otherwise imposed by Section 9-207(2)(e) of the New York Uniform Commercial Code, GS&Co. shall be entitled to pledge, repledge, hypothecate, rehypothecate or further assign (collectively, "rehypothecate") any Collateral delivered to GS&Co. by Counterparty pursuant to this Agreement, subject to the obligation to return such Collateral or equivalent Collateral to Counterparty' PROVIDED, HOWEVER, that no such rehypothecation may occur within 14 calendar days of the Last Sale Date; GS&Co. must use standard market documentation for the type of hypothecation involved; such documentation must provide that GS&Co. can reacquire the Collateral upon not less than three business days' notice; and GS&Co. will exercise that right upon written notice from the Counterparty. 7. REPRESENTATIONS AND Counterparty represents and warrants AGREEMENTS OF to, and agrees with, GS&Co. as COUNTERPARTY: follows: Counterparty (a) has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of entering into the Transaction; (b) is an "eligible swap participant" as defined in the Part 35 Regulations of the U.S. Commodity Futures Trading 9 68 Commission; (c) has consulted with its own legal, financial, accounting and tax advisors in connection with the Transaction; (d) is entering into the Transaction as principal (and not as agent or in any other capacity, fiduciary or otherwise) for a bona fide business purpose in conjunction with its line of business to hedge an existing position and not for purposes of speculation; and (e) has determined that this Transaction is prudent and appropriate in light of its organizational documentation, financial situation and investment objectives and guidelines and policies. As of the date of Counterparty's most recent Schedule 13D filing with the Securities and Exchange Commission, Counterparty was the beneficial owner (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of 15.7% of the outstanding shares of the Issuer. Counterparty is currently, and in the past has been, in compliance with its reporting obligations under Section 13(d) of the Exchange Act. A list of all such Schedule 13D filings is attached as Annex A and copies of all such filings have been provided to GS&Co. Counterparty will provide GS&Co. a draft of the amendment to its Schedule 13D which describes the Transaction and will give GS&Co. a reasonable opportunity to comment on the draft. An amendment to the Schedule 13D will be promptly filed by the Counterparty with the Securities and Exchange Commission. Counterparty will comply with its obligations in Section 14(i) of the Confirmation in connection with future filings under Section 13(d) of the Exchange Act made on or after the date of this Confirmation. Neither Counterparty nor any of its Affiliates is in possession of any non-public material information regarding the Issuer; and, during the period that GS&Co. effects sales of Shares pursuant to Section 2 hereof, Counterparty will notify by telephone Alexandra Antoniadis (Telephone: (212) 902-9509) promptly upon coming into possession of any such material non-public information (such telephonic notice to be promptly confirmed in writing). In the event that Counterparty so notifies such personnel of GS&Co. during the Sale Period, GS&Co. will as promptly as practicable discontinue the sale of the Shares, and the Number of Shares will be 10 69 reduced to such number as GS&Co. has sold prior to its discontinuing such sales and the date such sales are discontinued will be the Last Sale Date. Counterparty and its affiliates have not sold, or contracted to sell, any Shares (or any other security or instrument that will be subject to aggregation under Rule 144(e)) or any beneficial interest therein during the three-month period and have not sold or purchased, or contracted to sell or purchase, any Shares (or any other security or derivative security that would be subject to reporting under Section 16 of the Exchange Act) or any beneficial interest therein during the six-month period ending on the date of this Confirmation, except as reported on Counterparty's Form 144 and Form 4 and Form 5 filings with the SEC or as otherwise listed on Annex A. Counterparty shall comply with the reporting and other requirements of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder. The Pledged Shares are not subject to any restrictions on transfer other than those arising under federal or state securities laws. No Pledged Shares are entitled to the benefits of any registration rights agreement or similar agreement except pursuant to the agreement identified in Annex B hereto (the "Registration Rights Agreement"). Within the last month, Counterparty has not offered any Shares through any prospectus or other offering document. During the Sale Period, Counterparty will not exercise any of its rights under the Registration Rights Agreement in respect of any Shares or permit any Shares to be included in a registered offering without GS&Co.'s prior written consent. Assuming that the terms of the Transaction are consistent with the terms of a "Contract" as described in Section I.A. of the Goldman, Sachs & Co. (December 20, 1999) interpretive letter (the "Interpretive Letter"), and based on the representation of GS&Co. below, the Shares to be delivered on Physical Settlement shall be freely transferable to the public without any restrictions whatsoever. Counterparty will not take any action so as to cause the terms of the Transaction not to comply with Section I.A. of the Interpretive Letter. Counterparty has furnished GS&Co. with copies of all agreements, contracts or instruments that relate to the Pledged Shares. 11 70 The Pledged Shares are transferable by the Counterparty to the public pursuant to Rule 144 under the Securities Act. Counterparty acknowledges and agrees that (i) assuming that the terms of the Transaction are consistent with the terms of a "Contract" as described in Section I.A. of the Interpretive Letter, and based on the representation of GS&Co. below, the entering into of this Confirmation will constitute a "sale" of the Pledged Shares for purposes of Rule 144, (ii) Counterparty has not taken and will not take any action that would cause such sale to exceed the volume limitation of Rule 144(e), (iii) Counterparty has not taken and will not take any action that could cause the sale pursuant to this Confirmation not to comply with Rule 144, (iv) Counterparty will transmit a Form 144 for filing with the Securities and Exchange Commission simultaneously with the execution of this Confirmation and such Form 144 shall be in a form reasonably acceptable to GS&Co., (v) Counterparty will deliver a representation letter to GS&Co. in a form customarily used by GS&Co. simultaneous with the execution of this Confirmation and each representation, warranty and agreement in such representation letter shall be deemed to be incorporated into this Confirmation and (vi) upon the Last Sale Date, Counterparty agrees to transmit for filing with the Securities and Exchange Commission an amendment to the previously filed Form 144 in a form reasonably acceptable to GS&Co. Counterparty is not and has not been the subject of any civil proceeding of a judicial or administrative body of competent jurisdiction that could reasonably be expected to impair Counterparty's ability to perform its obligations hereunder. Within three Business Days after any financial officer of Counterparty obtains knowledge of an Event of Default or the occurrence of any event that with the giving of notice, the lapse of time or both would be such an Event of Default, Counterparty will immediately notify GS&Co. of the occurrence of such Event of Default. Counterparty has filed or caused to be filed all material tax returns that are required to be filed by Counterparty and has paid all material taxes shown to be due and payable on said returns or on any assessment made against Counterparty or any of Counterparty's property and all other material taxes, 12 71 assessments, fees, liabilities or other charges imposed on Counterparty or any of Counterparty's property by any governmental authority. Counterparty was not or will not be insolvent at the time this Transaction is consummated, and was not or will not be rendered insolvent or will not be insolvent as a result thereof. Counterparty has not engaged and will not engage in any business or transaction with GS&Co. after which the property remaining with Counterparty was or will be unreasonably small in relation to its business. At the time of any transfer to or for the benefit of GS&Co., Counterparty did not intend or will not intend to incur, and did not incur or will not incur, debts that were beyond the ability of Counterparty to pay as they mature. GS&Co. hereby represents and warrants to, and agrees with, Counterparty that the sale of Shares by GS&Co. during the Sale Period will comply with the manner of sale requirements of Rule 144(f) and (g). 8. ACKNOWLEDGMENTS: The parties hereto intend for: (i) This Transaction to be a "securities contract" as defined in Section 741(7) of the Bankruptcy Code (Title 11 of the United States Code) (the "Bankruptcy Code"), qualifying for protection under Section 555 of the Bankruptcy Code; (ii) A party's right to liquidate this Transaction and to exercise any other remedies upon the occurrence of any Event of Default under the Agreement with respect to the other party to constitute a "contractual right" as defined in the Bankruptcy Code. (iii) Any cash, securities or other property provided as performance assurance, credit support or collateral with respect to this Transaction to constitute "margin payments" as defined in the Bankruptcy Code. (iv) All payments for, under or in connection with this Transaction, all payments for the Shares and the transfer of such Shares to constitute "settlement payments" as defined in the Bankruptcy Code. 9. INDEMNIFICATION: Counterparty agrees to indemnify and hold harmless 13 72 GS&Co., its Affiliates and its assignees and their respective directors, officers, employees, agents and controlling persons (GS&Co. and each such person being an "Indemnified Party") from and against any and all losses, claims, damages and liabilities, joint or several, to which such Indemnified Party may become subject, and relating to or arising out of any of the transactions contemplated by this Confirmation, and will reimburse any Indemnified Party for all expenses (including reasonable counsel fees and expenses) as they are incurred in connection with the investigation of, preparation for or defense or settlement of any pending or threatened claim or any action, suit or proceeding arising therefrom, whether or not such Indemnified Party is a party and whether or not such claim, action, suit or proceeding is initiated or brought by or on behalf of Counterparty. Counterparty will not be liable under the foregoing indemnification provision to the extent that any loss, claim, damage, liability or expense results primarily from the negligence (as determined by a final and nonappealable judgment of a court of competent jurisdiction) or bad faith of GS&Co. If for any reason the foregoing indemnification is unavailable to any Indemnified Party or insufficient to hold harmless any Indemnified Party, then Counterparty shall contribute, to the maximum extent permitted by law, to the amount paid or payable by the Indemnified Party as a result of such loss, claim, damage or liability. Counterparty also agrees that no Indemnified Party shall have any liability to Counterparty or any person asserting claims on behalf of or in right of Counterparty in connection with or as a result of any matter referred to in this Confirmation or the Agreement except to the extent that any losses, claims, damages, liabilities or expenses incurred by Counterparty result primarily from the negligence (as determined by a final and nonappealable judgment of a court of competent jurisdiction) or bad faith of the Indemnified Party. The provisions of this Section 9 shall survive completion of the Transaction contemplated by this Confirmation and any assignment and delegation pursuant to Section 14(a) of this Confirmation. 10. TERMINATION PROVISIONS: (a) Sections 5(a)(v), 5(a)(vi), 5(a)(vii), 5(a)(viii), and 5(b)(iv) shall not apply to GS&Co. 14 73 (b) "SPECIFIED TRANSACTION" will have the meaning specified in Section 14 of the Agreement, except that it will also include any forward transactions in securities and any margin loan or extension of credit by GS&Co. to Counterparty. (c) (i) The "CROSS DEFAULT" provisions of Section 5(a)(vi) of the Agreement as amended will apply to Counterparty; and Section 5(a)(vi) of the Agreement is hereby amended by deleting in the seventh line thereof the words ", or becoming capable at such time of being declared,". (ii) "SPECIFIED INDEBTEDNESS" will have the meaning specified in Section 14 of the Agreement, except as excluded in the proviso to this definition, and shall include for the avoidance of doubt, all reimbursement obligations in respect of letters of credit or financial guaranty insurance or surety bonds issued for the account of that person; provided however, that obligations in respect of interbank deposits received by GS&Co. shall not constitute Specified Indebtedness for the purposes of clause (2) of Section 5(a)(vi) of the Agreement to the extent they are not paid when due only as the result of inadvertence or administrative error. (iii) "THRESHOLD AMOUNT" means U.S. $100,000,000 or its equivalent in another currency. (d) Each of Section 5(a)(vii)(4)(B) and Section 5(a)(vii)(7) of the Agreement is hereby amended by deleting the number "30" and replacing it with the number "90". (e) Section 5(a)(viii) of the Agreement is hereby amended by deleting the introductory paragraph in its entirety and replacing it with the following: "The party consolidates or amalgamates with, or merges with or into, or transfers all or substantially all its assets to, or reorganizes, incorporates, reincorporates, or reconstitutes into or as, another entity and, at the time of such consolidation, amalgamation, merger, transfer, reorganization, incorporation, reincorporation or reconstitution." 15 74 (f) Section 5(b)(iv) of the Agreement is hereby amended by: (i) deleting in the fourth line thereof the words "another entity" and replacing them with the words "or reorganizes, incorporates, reincorporates, reconstitutes, or reforms into or as, or receives all or substantially all of the assets and/or liabilities or obligations of, another entity or X, such Specified Entity effects a recapitalization, liquidating dividend, leveraged buy-out, other similar highly-leveraged transaction, redemption of indebtedness, or stock buy-back or similar call on equity"; (ii) deleting in the fifth line thereof the words "the resulting, surviving or transferee" and replacing them with the words "X, such Specified Entity or any resulting, surviving, transferee, reorganized, reconstituted, reformed, or recapitalized"; and (iii) deleting in the seventh line thereof the words "its successor or transferee" and replacing them with the words "any resulting, surviving, transferee, reorganized, reconstituted, reformed or recapitalized entity". (g) The "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(iv) as amended above will apply to Counterparty. Notwithstanding Section 5(b)(iv) of the Agreement, "Credit Event Upon Merger" means that a Designated Event (as defined below) occurs with respect to a party and such action does not constitute an event described in Section 5(a)(viii) of the Agreement but, after the occurrence of the Designated Event, the successor, surviving or transferee entity (which will be the Affected Party) has a credit rating of BB+ from Standard & Poor's Ratings Group or Ba1 from Moody's Investors Service Corporation or a lower rating from either such rating agency. For the purposes hereof, a "Designated Event" means, with respect to a party, that after the Trade Date of a Transaction: (i) the party consolidates or amalgamates with, or merges with or into, or transfers all or substantially all its assets (or any substantial part of the assets comprising the business conducted by that party as of the Trade Date of that Transaction) to, or receives all or substantially all the assets and obligations of, another entity; (ii) any person as defined for purposes of Section 13(d) under the Securities Exchange Act of 1934, as amended as of the Trade Date (the "Exchange Act"), or entity or group (as defined for purposes of Section 13(d) under the Exchange 16 75 Act) acquires directly or indirectly the beneficial ownership (as defined for purposes of Section 13(d) under the Exchange Act) of equity securities having the power to elect a majority of the board of directors of the party; or (iii) the party enters into any agreement providing for any of the foregoing. (h) The "AUTOMATIC EARLY TERMINATION" provision of Section 6(a) will not apply to GS&Co. and will apply to Counterparty. (i) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e): (i) Loss will apply. (ii) The Second Method will apply. (j) "TERMINATION CURRENCY" means United States Dollars. 11. TAX REPRESENTATIONS. (a) PAYER REPRESENTATIONS. For purposes of Section 3(e) of the Agreement, GS&Co. and Counterparty each make the following representation: It is not required by any applicable law, as modified by the practice of any relevant governmental revenue authority, of any Relevant Jurisdiction to make any deduction or withholding for or on account of any Tax from any payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) of the Agreement) to be made by it to the other party under the Agreement. In making this representation, it may rely on (i) the accuracy of any representations made by the other party pursuant to Section 3(f) of the Agreement, (ii) the satisfaction of the agreement contained in Section 4(a)(i) or 4(a)(iii) of the Agreement and the accuracy and effectiveness of any document provided by the other party pursuant to Section 4(a)(i) or 4(a)(iii) of the Agreement, and (iii) the satisfaction of the agreement of the other party contained in Section 4(d) of the Agreement, provided that it shall not be a breach of this representation where reliance is placed on Clause (ii) and the other party does not deliver a form or 17 76 document under Section 4(a)(iii) by reason of material prejudice to its legal or commercial position. (b) PAYEE REPRESENTATIONS. For the purpose of Section 3(f) of the Agreement; Counterparty represents that is a corporation organized under the laws of the State of Ohio and it is not a foreign person for United States federal income tax purposes. GS&Co. represents that it is a limited partnership organized under the laws of the State of New York and it is not a foreign person for United States federal income tax purposes. 12. AGREEMENT TO DELIVER DOCUMENTS. For the purpose of Section 4(a), each party agrees to deliver the following documents, as applicable: (a) Tax forms, documents, or certificates to be delivered are: None (b) Other documents to be delivered are:
COVERED BY PARTY REQUIRED TO DATE BY WHICH SECTION 3(d) DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE TO BE DELIVERED REPRESENTATION ---------------- ------------------------- --------------- -------------- Counterparty Certified incumbency certificate or At execution of this Yes other evidence of authority and Agreement specimen signatures with respect to Counterparty and its signatories Counterparty Annual Financial Statement of Within 90 days of the Yes Counterparty last day of each calendar year, with respect to financial statements relating to such calendar year. Counterparty Interim Financial Statement of Promptly following Counterparty demand by Party A
18 77
COVERED BY PARTY REQUIRED TO DATE BY WHICH SECTION 3(d) DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE TO BE DELIVERED REPRESENTATION ---------------- ------------------------- --------------- -------------- Counterparty Evidence reasonably satisfactory to At execution of this Yes and GS&Co. the other party of the signing Agreement and authority and specimen signature of thereafter on request any individual executing this Agreement, any Credit Support Document and any Confirmation on its behalf
13. MISCELLANEOUS. (a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a): Address for notices or communications to GS&Co.: Address: 85 Broad Street New York, New York 10004, U.S.A. Attention: Alexandra Antoniadis Telex No.: 12-5654 Answerback: GOLSAX Facsimile No.: 212-902-2065 Telephone No.: 212-902-9509 Electronic Messaging System Details: None. With a copy to: Address: 85 Broad Street New York, New York 10004, U.S.A. Attention: Treasury Administration Telex No.: 421344 Answerback: GOLSAX Facsimile No.: 212-902-3325 Telephone No.: 212-902-1000 Electronic Message System Details: None. 19 78 Address for notices or communications to Counterparty: Address: 1900 Richmond Road Lyndhurst, Ohio 44124, U.S.A. Attention: Ronald P. Vargo Cc: Secretary Telex No.: None Answerback: None Facsimile No.: (216) 291-7831 Telephone No.: (216) 291-7500 Electronic Message System Details: None. (b) OFFICES; MULTIBRANCH PARTIES. (i) The provisions of Section 10(a) will be applicable. (ii) For the purpose of Section 10(c): GS&Co. is not a Multibranch Party. Counterparty is not a Multibranch Party. (c) JURISDICTION. Section 13(b) of the Agreement is hereby amended by: (i) deleting in the second line of Subparagraph (i) thereof the word "non"; and (ii) deleting the final paragraph thereof. (d) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) of the Agreement will not apply to Transactions. (e) "WAIVER OF JURY TRIAL". To the extent permitted by applicable law, each party irrevocably waives any and all right to trial by jury in any legal proceeding in connection with the Agreement or any Transaction. (f) PROCESS AGENT. For the purpose of Section 13(c): GS&Co. appoints as its Process Agent: None Counterparty appoints as its Process Agent in the Borough of Manhattan in New York City: Name: CT Corporation System 20 79 Address: 111 Eighth Avenue Telex No.: None Answerback: None Facsimile No.: None Telephone No.: (212) 894-8440 (g) "Annual Financial Statements" means a certified balance sheet and income statement of such party's assets, liabilities and results of operations, certified by a public accountant of national recognition and reputation and prepared in accordance with accounting principles that are generally accepted in the United States of America, as of the end of the most recent fiscal year. (h) "Interim Financial Statements" means a balance sheet and income statement setting forth such party's assets, liabilities and results of operations in accordance with Regulation S-X. 21 80 14. OTHER PROVISIONS. (a) TRANSFER. Section 7 of the Agreement is replaced in its entirety by the following: GS&Co. may assign its rights and delegate its obligations under any Transaction, in whole or in part, to any affiliate (an "Assignee") of GS&Co. effective (the "Affiliate Effective Date") upon delivery to Counterparty of an executed acceptance and assumption by the Assignee (an "Assumption") of the transferred obligations of GS&Co. under the Transaction (the "Transferred GS&Co. Obligations") and GS&Co. may assign its rights and delegate its obligations under any Transaction, in whole or in part, to a third party that has a long- term, unsubordinated debt rating of A- as rated by Standard & Poor's Ratings Group and A3 as rated by Moody's Investor Services Corporation effective (the "Third Party Effective Date") upon delivery to Counterparty of an executed Assumption by the third party of the Transferred GS&Co. Obligations under the Transaction. On the Affiliate Party Effective Date or the Third Party Effective Date, GS&Co. shall be released from all obligations and liabilities arising under or with respect to the Transferred GS&Co. Obligations, except GS&Co. will retain its rights under Section 9 of this Confirmation. With the prior written consent of GS&Co., which shall not be unreasonably withheld, Counterparty may assign its rights and delegate its obligations under any Transaction, in whole or in multiples of not less than 100,000 Shares, to a third party effective upon delivery to GS&Co. of an Assumption of the transferred obligations of Counterparty under the Transaction ("the Transferred Counterparty Obligations"), provided that such third party (i) is not an "affiliate" (as used for purposes of Section 2(a)(11) of the Securities Act) of the Issuer and delivers to GS&Co. evidence reasonably satisfactory to it to evidence this fact, (ii) delivers to GS&Co. a number of Shares equal to the product of (a) a fraction, the numerator of which is the maximum number of Shares subject to the Transferred Counterparty Obligations and the denominator is the Number of Shares and (b) the Number of Shares, as Collateral for its obligations, which Shares shall be freely transferable to the public without any restrictions on transfer whatsoever, and grants to GS&Co. a first priority security interest in, and a first priority lien on, the Collateral and (iii) makes the same representations, warranties, covenants and agreements as Counterparty in this Confirmation, except those that relate to Rule 144 of the Securities Act, and those that relate to Sections 13 and 16 of the Exchange Act to the extent that such third party is (and remains) not subject to the reporting obligations under those Sections. Upon delivery to GS&Co. of an executed Assumption by the third party of the Transferred Counterparty Obligations under the Transaction, Counterparty shall be released from all obligations and liabilities arising under or with respect to the Transferred Counterparty Obligations, except Section 9 shall continue to apply as between Counterparty and GS&Co. (b) SEVERABILITY. If any term, provision, covenant, or condition of this Confirmation, or the application thereof to any party or circumstance, shall be held to be invalid or unenforceable (in whole or in part) for any reason, the remaining terms, provisions, covenants, and conditions hereof shall continue in full force and effect as if this Confirmation had been executed with the invalid or unenforceable portion eliminated, so long as this Confirmation as so modified continues to express, without material change, the original intentions of the parties as to the subject matter of this Confirmation and the deletion of such portion of this Confirmation will 22 81 not substantially impair the respective benefits or expectations of the parties to this Confirmation ; provided, however, that this severability provision shall not be applicable if any provision of Section 2, 5, 6, or 13 of the Agreement (or any definition or provision in Section 14 to the extent it relates to, or is used in or in connection with any such Section) shall be so held to be invalid or unenforceable. (c) BINDING EFFECT. This Confirmation shall bind and inure to the benefit of GS&Co. and Counterparty and their respective heirs, distributees, executors, personal representatives and administrators and permitted successors and assigns." (d) DEFINITIONS. The definition of "law" in Section 14 of this Agreement is hereby amended by the insertion of the words "either generally or with respect to a party to this agreement" after the phrase "any relevant governmental revenue authority" and the addition of the words "Change in Tax Law," before the word "lawful" in the second line. For the purposes of this Agreement, "Contractual Currency" means United States Dollars. (e) DEALINGS IN THE SHARES. Counterparty hereby acknowledges and agrees that GS&Co. and its Affiliates may engage in proprietary trading for their accounts in the Shares (and related securities) and that such trading may affect the value of the Shares and the amounts payable hereunder. (f) DEFAULT UNDER SPECIFIED TRANSACTIONS. Section 5(a)(v)(2) of the Agreement is hereby amended by replacing the words "the last" with the word "any". (g) CONDITIONS PRECEDENT. The condition precedent set forth in clause (1) of Section 2(a)(iii) of the Agreement shall not apply to payments scheduled to be made by Counterparty to GS&Co. under this Confirmation. (h) CONFIDENTIALITY. Each party considers its participation in each and any Transaction and the details thereof (collectively, the "Information") to constitute confidential and valuable business information. Accordingly, each party agrees to keep the Information strictly confidential and not to disclose it (or any portion thereof) to any third party except (i) with the prior written consent of the other party or (ii) pursuant to the demand, request or requirement of any law, court, regulatory or self-regulatory agency having jurisdiction over a party or pursuant to Rule 144 under the Securities Act or Section 13(d) of the Exchange Act. In such a case, Counterparty will notify GS&Co. reasonably in advance of any requirement or pending request for the disclosure of any Information and prior to the disclosure shall take all such actions reasonably requested by GS&Co. to preserve the confidentiality of such Information. (i) GROSS UP. The third line of Section 2(d)(i) of the Agreement is hereby amended by the insertion before the phrase "of any relevant governmental revenue authority" of the words ", application or official interpretation" and the insertion of the words "(either generally or with respect to a party to this Agreement)" after such phrase. (j) MAINTAIN AUTHORIZATIONS. Section 4(b) of the Agreement is hereby amended by deleting the words "use all reasonable efforts to" from the first and third lines thereof. 23 82 (k) REPRESENTATIONS. (i) Section 3(a)(iii) of the Agreement is hereby amended by inserting the word "material" between the words "any" and "contractual" in the third line thereof. (ii) Section 3(c) of the Agreement is hereby amended by deleting the words "or any of its affiliates" from the first and second lines thereof. 24 83 Please confirm that the foregoing correctly sets forth the terms of our agreement by executing the copy of this Confirmation enclosed for the purpose and returning it to us by facsimile transmission to the Attention of: Equity Derivatives Documentation Department (Telecopier No. (212) 428-1980/1983). Very truly yours, GOLDMAN, SACHS & CO. By: ------------------------ Name: Title: Confirmed as of the date first above written: - ---------------- By: ------------------------ Name: Title: 25 -----END PRIVACY-ENHANCED MESSAGE-----