[BEAR ▇▇▇▇▇▇▇ LETTERHEAD]
DATE: October 30, 2003
TO: Mr. ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
TELEPHONE: (▇▇▇) ▇▇▇-▇▇▇▇
FACSIMILE: {Fax Number}
FROM: Derivatives Documentation
TELEPHONE: ▇▇▇-▇▇▇-▇▇▇▇
FACSIMILE: ▇▇▇-▇▇▇-▇▇▇▇
SUBJECT: Equity Derivatives Confirmation
REFERENCE NUMBER: NY26530
The purpose of this letter agreement is to confirm the terms and conditions of
the Transaction entered into on the Trade Date specified below (the
"Transaction") between Bear ▇▇▇▇▇▇▇ Bank plc("Bear ▇▇▇▇▇▇▇") and Mr. ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ("Counterparty"). This letter agreement, together with the Transaction
Supplements described below, constitute the sole and complete "Confirmation," as
referred to in the Master Agreement specified below, with respect to this
Transaction.
1. In lieu of negotiating an ISDA Master Agreement and Schedule, Bear ▇▇▇▇▇▇▇
and Counterparty hereby agree that an agreement in the form of the ISDA Master
Agreement (Multicurrency--Cross Border) (the "Form Master Agreement") as
published by the International Swaps and Derivatives Association, Inc. ("ISDA"),
with a Schedule attached thereto containing all elections, modifications and
amendments thereto contained in "Elections, Modifications and Amendments Under
the Master Agreement" below (as so supplemented, the "Master Agreement") shall
be deemed to have been executed by both of us on the Trade Date on which we
entered into the first "Transaction" (as defined in the Master Agreement). This
Confirmation and the Transaction, to which it relates, as well as all other
Transactions between us (unless otherwise specified in the Confirmations
relating to such Transactions) shall supplement, form a part of and be subject
to such Master Agreement. All provisions contained in, or incorporated by
reference to the Master Agreement shall govern the Transaction referenced in
this Confirmation, as well as all other Transactions between the parties
heretofore or hereafter entered into, except as expressly modified herein or
therein. THUS THIS CONFIRMATION CONSTITUTES BOTH A MASTER AGREEMENT AND A
CONFIRMATION THEREUNDER.
Certain of the economic terms of this Transaction will be embodied in
Transaction Supplements issued from time to time by Bear Steams to Counterparty.
Each of these Transaction Supplements shall, upon issuance thereof by Bear
▇▇▇▇▇▇▇ be incorporated herein by reference, and shall be deemed to supercede
all prior Transaction Supplements. Counterparty shall be bound by the terms of
such Transaction Supplement, unless such Transaction Supplement is inconsistent
with the agreements between the parties intended to be memorialized thereby and
Counterparty notifies Bear Steams of that fact within one Business Day of the
receipt by Counterparty of such Transaction Supplement. A form of Transaction
Supplement is attached hereto as Exhibit A.
Reference Number: NY26530
Mr. ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
October 30, 2003
Page 2 of 14
The Final Transaction Supplement (the "Final Transaction Supplement"), which
shall embody the final terms of the Transaction, shall be issued not later than
five Exchange Business Days following the end of the Execution Period specified
below, and shall represent the final written agreement of Bear ▇▇▇▇▇▇▇ with the
Counterparty setting forth the final terms or this.
This Confirmation is subject to and incorporates the 2000 ISDA Definitions (the
"Definitions") and the 1996 Equity Derivatives Definitions (the "1996
Definitions"), each as published by ISDA.
In the event of any inconsistency between this Confirmation and the Definitions
or the Master Agreement, this Confirmation shall prevail. In the event of any
inconsistency between the portion of this Confirmation embodied in this letter
agreement and the portion of this Confirmation embodied in a Transaction
Supplement, the Transaction Supplement shall prevail.
2. This Transaction consists of a variable share pre-paid forward purchase
transaction relating to the Shares specified below. The terms of the particular
Transaction to which this Confirmation relates are as follows:
GENERAL TERMS RELATING TO THE TRANSACTION:
Trade Date: October 30, 2003
Purchaser: Bear ▇▇▇▇▇▇▇
Seller: Counterparty
Base Amount: As specified in the Transaction Supplement.
The Base Amount represents the number of
Shares sold by Bear Steams during the
Execution Period. In the case of any
Transaction Supplement other than the Final
Transaction Supplement, this will represent
all Shares sold through the "As of" date
specified on the Transaction Supplement. In
the case of the Final Transaction
Supplement, this will represent all Shares
sold throughout the Execution Period.
The parties hereto hereby agree that they
shall enter into this Transaction with
respect to up to the Maximum Base Amount
specified below based on the execution price
of sales of the Shares effected by Bear
▇▇▇▇▇▇▇ over the Execution Period specified
below.
Maximum Base Amount: 400,000 Shares
Execution Period: From and including the Trade Date to and
including the earlier to occur of (a) the
date on which Bear ▇▇▇▇▇▇▇ has effected
sales of Shares in number equal to the
Maximum Base Amount and (b) November 10,
2003.
Floor Price: As specified in the Transaction Supplement.
The Floor Price will represent the product
of (a) the Floor Price Percentage and (b)
the Execution Price.
Reference Number: NY26530
Mr. ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
October 30, 2003
Page 3 of 14
Floor Price Percentage: 100%
Cap Price: As specified in the Transaction Supplement.
The Cap Price will represent the product of
(a) the Cap Price Percentage and (b) the
Execution Price.
Cap Price Percentage: 120%
Execution Price: As specified in the Transaction Supplement.
The Execution Price represents the average
of the actual sale price of Shares sold by
Bear ▇▇▇▇▇▇▇ during the Execution Period. In
the case of any Transaction Supplement other
than the Final Transaction Supplement, this
will be based on all Shares sold through the
"As of" date specified on the Transaction
Supplement. In the case of the Final
Transaction Supplement, this will be based
on all Shares sold throughout the Execution
Period.
Shares: The common shares of ▇.▇. ▇▇▇▇ Transport
Services, Inc. currently trading under the
ticker symbol "JBHT".
Exchange: The Nasdaq National Market.
Related Exchange(s): The exchanges or quotation systems, if any,
on which options or futures contracts on the
Shares are traded or quoted, and as may be
selected from time to time by the
Calculation Agent.
Calculation Agent: Bear ▇▇▇▇▇▇▇
PREPAYMENT AMOUNT:
Payment of
Prepayment Amount: On the Prepayment Amount Payment Date, the
Purchaser will pay the Prepayment Amount to
Seller.
Prepayment Amount: As specified in the Transaction Supplement.
The Prepayment Amount will represent the
product of (a) the Prepayment Percentage and
(b) the Execution Price and (c) the Base
Amount.
Prepayment Percentage: As specified in the Transaction Supplement.
Prepayment Amount
Payment Date: The third Exchange Business Day following
the final day of the Execution Period and
such earlier date as the parties may agree.
Reference Number: NY26530
Mr. ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
October 30, 2003
Page 4 of 14
DETERMINATION OF PRICING DATE:
Pricing Date: As specified in the Final Transaction
Supplement.
Consequence of Market
Disruption Event: The provisions of Section 4.2 of the 1996
Definitions will apply as if this
Transaction were a "Share Transaction" for
which the Pricing Date were the Valuation
Date, and Market Disruption Event had the
meaning specified below.
Market Disruption Event: Shall have the meaning specified in Section
4.3 of the 1996 Definitions, with this
Transaction being deemed a "Share
Transaction" for purposes of such section.
PHYSICAL SETTLEMENT TERMS:
Physical Settlement: On the Settlement Date, Seller will deliver
the Number of Shares to be Delivered. Such
delivery will be made on the Settlement Date
through the Clearance System at the accounts
specified in this Confirmation and will be
made on a "free" basis.
In addition, on the Settlement Date, Seller
will pay to the Purchaser at the accounts
specified in this Confirmation cash in an
amount equal to the Rounding Correction.
All such deliveries will be required to be
made at or before 10:00 a.m. on the
Settlement Date.
Number of Shares to Be Notwithstanding Section 6.3 of the 1996
Delivered: Definitions, the "Number of Shares to be
Delivered" for the Settlement Date will be a
number of Shares equal to the Delivery
Amount for the Pricing Date, with such sum
being rounded down to the nearest whole
Share.
Relevant Price: The closing offer price for the Shares with
respect to the Pricing Date, as reported by
the Exchange.
Delivery Amount: An amount calculated as follows:
(a) if the Relevant Price is greater than or
equal to the Cap Price, then:
Floor Price + Relevant Price - Cap Price
Base Amount x ------------------------------------------
Relevant Price
(b) if the Relevant Price is less than the
Cap Price but greater than the Floor Price,
then:
Reference Number: NY26530
Mr. ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
October 30, 2003
Page 5 of 14
Floor Price
Base Amount x -----------------
Relevant Price
(c) if the Relevant Price is less than or
equal to the Floor Price, then:
Base Amount
Rounding Correction: An amount equal to the Product of (a) the
Relevant Price for the Pricing Date and (b)
the difference, if any, between (i) the
Delivery Amount for the Pricing Date and
(ii) the Number of Shares to be Delivered
with respect to the related Settlement Date.
Settlement Date: Shall have the meaning set forth in Section
6.2 of the 1996 Definitions, save that the
references in such provision to "Exercise
Date" will be deemed to be references to the
Pricing Date.
Applicability of Certain
Sections of the 1996
Definitions: Sections 6.6 (Expenses) and, except to the
extent expressly set forth to the contrary
herein, 6.7 (Dividends) of the 1996
Definitions will apply to any delivery of
Shares hereunder, save that the reference to
"Exercise Date" will be deemed to be a
reference to "Pricing Date".
Section 6.8 (Representation and Agreement)
of the 1996 Definitions will apply to any
delivery of Shares hereunder. For the
avoidance of doubt, the "Additional
Representations of the Counterparty" set
forth below will also apply to any delivery
of Shares hereunder, including, without
limitation, subparagraph (a) thereof, which
imposes conditions on the Shares that Seller
may deliver.
Section 6.9 (Failure to Deliver) of the
1996 Definitions will apply to any
obligation to deliver Shares hereunder, save
that the reference to "Exercise Date" will
be deemed to be a reference to " Pricing
Date."
Section 6.10 (Default Interest) of the 1996
Definitions will apply to any obligation to
deliver Shares hereunder.
Clearance System: The principal domestic clearance system
customarily settling trades on a free
delivery basis in the Shares as of the
Pricing Date, as selected by the Calculation
Agent; subject to "Settlement by Delivery of
Collateral" below.
Settlement by Delivery of
Collateral: The parties agree that if Bear ▇▇▇▇▇▇▇ would
otherwise be obligated to return Collateral
(as defined in the Collateral
Reference Number: NY26530
Mr. ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
October 30, 2003
Page 6 of 14
Provisions below) in accordance with the
Collateral Provisions and Seller would
otherwise be obligated to deliver Shares
hereunder, Bear ▇▇▇▇▇▇▇ may, at its sole
option, retain the Collateral (but only to
the extent of the number of Shares required
to be delivered by Seller) and Seller will
thereupon not be obligated to deliver the
Shares.
The "Settlement by Delivery of Collateral"
as described above, shall take place, as to
Seller, in accounts maintained by Seller at
Bear ▇▇▇▇▇▇▇ in accordance with the Customer
Agreement between Counterparty and Bear
▇▇▇▇▇▇▇ dated as of (insert date), between
Counterparty and Bear ▇▇▇▇▇▇▇ and its
affiliates as amended hereby (the "Customer
Agreement"), and all such property and
monies maintained in such accounts shall be
Collateral and will be subject to the
security interest of Bear ▇▇▇▇▇▇▇. In such
event, transfer on the books and records of
the party maintaining such accounts shall be
deemed to be the Clearance System for all
purposes hereunder. In addition, such
transaction shall be governed by, and
subject to the provisions of, the agreements
and terms governing such accounts, as
amended hereby.
PAYMENT AND DELIVERIES IN
RESPECT OF DIVIDENDS:
Dividend Adjustment: If there are one or more ordinary dividends
or distributions on the Shares, other than
dividends comprised of the Shares, which
have an "ex-dividend" date during the period
from but excluding the Trade Date to and
including the Pricing Date, then:
(a) with respect to any such dividends that
are in cash, the Seller shall pay to the
Purchaser on the Paythrough Date (as defined
below) the Paythrough Amount. The
"Paythrough Amount" with respect to any such
cash dividend shall equal the product of (a)
the portion of such dividend, expressed on a
per Share basis, multiplied by (b) the Base
Amount; and
(b) with respect to any dividends that are
not in cash, the Seller shall deliver to the
Purchaser on the Paythrough Date the
Distribution Quantity (as defined below).
The "Distribution Quantity" with respect to
any non-cash dividend shall equal the
product of (a) the quantity of assets
comprising such dividend, expressed on a per
Share basis, multiplied by (b) the Base
Amount.
The "Paythrough Date" will be the New York
Business Day following the date on which the
dividend with respect to which the related
Dividend Amount payable or deliverable in
accordance with paragraph (a) or (b) above
would have been
Reference Number: NY26530
Mr. ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
October 30, 2003
Page 7 of 14
received by persons who held the Shares on
the relevant ex-dividend date.
ADJUSTMENTS:
Method of Adjustment: Following the declaration by the issuer of
the terms of any Potential Adjustment Event,
the Calculation Agent shall determine
whether such Potential Adjustment Event has
a dilutive or concentrative effect on the
theoretical value of the Shares and, if so,
will (a) make the corresponding adjustments
to any one or more of the Cap Price, the
Floor Price and the Base Amount and any
other variable relevant to the settlement or
payment terms of this Transaction as the
Calculation Agent determines appropriate to
account for that dilutive or concentrative
effect and (b) determine the effective
date(s) of the adjustment(s). For the
avoidance of doubt, for purposes of
determining whether an event is a whether
an event is a Potential Adjustment Event
(including, but not limited to, those
specified in Section 9.1(e)(ii), 9.1(e)
(iii), and 9.1(e)(iv) to the extent
analogous to the foregoing) and any
adjustment to be made in respect thereof,
the Calculation Agent shall take into
account the effect of other provisions of
this Confirmation, including those relating
to Paythrough Amounts.
ADJUSTMENTS FOR EXTRAORDINARY
EVENTS:
Share-for-Share or
Share-for-Combined
Merger Event: If there is a Merger Event for which the
Merger Consideration is Share-for-Share or
if there is a Merger Event for which the
Merger Consideration is Share-for-Combined
then, not later than the fifth Exchange
Business Day following the Announcement
Date, Seller may request that Purchaser
provide terms under which the Transaction
may continue (a "Continued Terms Request").
If Seller makes a Continued Terms Request,
then Purchaser shall, not later than ten
Exchange Business Days prior to the proposed
Merger Date notify Seller of the terms, as
determined by Purchaser in it's sole
discretion, under which the Transaction may
continue after the Merger Date. If Seller
notifies Purchaser that Seller accepts such
terms by no later than the third Exchange
Business Day following the date on which
Purchaser provides such terms then the
Transaction shall continue under the terms
so provided by Purchaser and agreed to by
Seller. All notices under this provision may
be given orally (and confirmed in writing,
which failure to confirm shall not vitiate
the effectiveness of the notice) and must be
given between 9:00 am. and 4:00 p.m., (New
York time.
If Seller fails to make a Continued Terms
Request as provided herein or if the parties
do not agree the terms on which to continue
the Transaction, then the Merger Event shall
be an Additional Termination Event for which
Seller shall be the sole
Reference Number: NY26530
Mr. ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
October 30, 2003
Page 8 of 14
Affected Party, this Transaction shall be
the sole Affected Transaction and Second
Method and Loss will apply.
Additional Termination
Events: Notwithstanding anything to the contrary in
the 1996 Definitions, it shall be an
Additional Termination Event if the
Announcement Date of any Nationalization or
Insolvency should occur at any time from and
including the Trade Date to and including
the Pricing Date.
For purposes of the foregoing Additional
Termination Events,
(a) Counterparty shall be the sole Affected
Party
(b) this Transaction shall be the sole
Affected Transaction
(c) Second Method and Loss will be deemed to
apply.
COLLATERAL PROVISIONS: (a) On or before the Local Business Day
following the Trade Date, Counterparty shall
deliver to and at all times during the
Execution Period maintain with Bear ▇▇▇▇▇▇▇
as collateral Shares in number equal to the
Maximum Base Amount. At all times after the
Execution Period, Counterparty shall deliver
to and at all times during the Execution
Period maintain with Bear ▇▇▇▇▇▇▇ as
collateral Shares in number equal to the
Base Amount (as such Base Amount may be from
time to time adjusted in accordance
herewith).
(b) These Collateral Provisions shall be
deemed a security agreement, and
notwithstanding anything to the contrary
contained in the Executed Agreement or this
Confirmation, these provisions shall be
governed by the laws of the State of New
York, without giving effect to the
conflicts or choice of law provisions
thereof. The Counterparty hereby grants a
first priority continuing security interest
in all Collateral provided hereunder and in
any and all substitutions therefor, proceeds
thereof and distributions thereon These
Collateral Provisions constitute a Credit
Support Document and the failure by a party
to deliver or return Collateral in
accordance with these Collateral Provisions
(if such failure is not remedied on or
before the Local Business Day after notice
of such failure is given to such party)
shall constitute an Event of Default for
purposes of Section 5(a)(iii) of the Master
Agreement with respect to such party. For
purposes of these Collateral Provisions, the
term "Local Business Day" shall have the
meaning given such term in the Master
Agreement, except that references to a
payment in clause (b) thereof will be deemed
to include a delivery or return of
Collateral hereunder.
(c) The collateral delivered hereunder shall
be used to secure Counterparty's obligations
under this Transaction, as well as
Reference Number: NY26530
Mr. ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
October 30, 2003
Page 9 of 14
under any other transaction with Bear ▇▇▇▇▇▇▇ or
any of its affiliates (in any case, a "Bear
▇▇▇▇▇▇▇ Entity"), including, without limitation,
any loans or other extensions of credit made by a
Bear ▇▇▇▇▇▇▇ Entity. Any such transactions, loans
or other extensions of credit shall be subject to
the Customer Agreement (defined herein) between
Counterparty and any Bear ▇▇▇▇▇▇▇ Entity and/or
any affiliate(s) thereof. In addition, you may
from time to time be required to post additional
collateral with Bear ▇▇▇▇▇▇▇ in accordance with
the provisions of the Customer Agreement. For
purposes of this paragraph, "Customer Agreement"
means, as applicable, any document(s) provided by
a Bear ▇▇▇▇▇▇▇ Entity which is referred to as the
Customer Agreement, the Professional Account
Agreement, the Institutional Account Agreement,
the Standard Terms and Conditions of Business, or
a similar name.
(d) Counterparty agrees that Bear ▇▇▇▇▇▇▇ or any
of its affiliates may borrow, repledge, use in its
own business and rehypothecate the Shares pledged
by Counterparty as Collateral on terms determined
by Bear ▇▇▇▇▇▇▇ at any time during the term of
this Transaction.
3. Account Details and
Settlement Information: PAYMENTS TO BEAR ▇▇▇▇▇▇▇:
Citibank, N.A., New York
ABA Number: ▇▇▇-▇▇▇-▇▇▇, for the account of
Bear, ▇▇▇▇▇▇▇ Securities Corp.
Account Number: 0925-3186, for further credit to
Bear, Steams International Limited
Sub-account Number: ▇▇▇-▇▇▇▇▇-▇▇
Attention: Derivatives Operations
PAYMENTS TO COUNTERPARTY:
PLEASE PROVIDE
ADDITIONAL PROVISIONS:
Agency. Counterparty acknowledges that Bear, ▇▇▇▇▇▇▇ & Co. Inc. (BS&C") has
acted as agent for Counterparty solely for the purposes of arranging this
Transaction with its Affiliate, Bear ▇▇▇▇▇▇▇. This confirmation is being
provided by BS&C in such capacity. Upon your written request, BS&C will furnish
you with the time at which this Transaction was entered into.
Eligible Contract Participant. Each party represents that it constitutes an
"eligible contract participant" as such term is defined in Section l(a)12 of the
Commodity Exchange Act, as amended.
Non-Reliance. Each party represents to the other party that (a) it has not
received and is not relying upon any legal, tax, regulatory, accounting or other
advice (whether written or oral) of the other party regarding this Transaction,
other than representations expressly made by that other party in this
Confirmation and in the Master Agreement and (b) in respect of this Transaction,
(i) it has the capacity to evaluate (internally or through independent
professional advice) this Transaction and has made its
Reference Number: NY26530
Mr. ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
October 30, 2003
Page 10 of 14
own decision to enter into this Transaction and (ii) it understands the terms,
conditions and risks of this Transaction and is willing to assume (financially
and otherwise) those risks. Counterparty acknowledges that Bear ▇▇▇▇▇▇▇ has
advised Counterparty to consult its own tax and legal advisors in connection
with this Transaction evidenced by this Confirmation and that the Counterparty
has done so.
Additional Representations of the Counterparty. With respect to the Shares
pledged as Collateral under this Transaction and any Shares delivered in
accordance herewith, Counterparty represents and warrants to Bear ▇▇▇▇▇▇▇ and
its affiliates and subsidiaries (which representation and warranty will be
deemed repeated at all times during the period from and including the Trade Date
to and including the Settlement Date) that:
(a) the Shares pledged as Collateral under this Transaction and any
Shares delivered to the Purchaser hereunder in connection with
this Transaction are not and shall not be subject to any
condition to or restriction on the ability of the holder thereof
to freely sell, assign or otherwise transfer such Shares,
including any contractual restriction, requirement for receipt of
approval, limitations on the status of transferees, deliveries of
certifications, opinions or other documents (other than a stock
power or like instrument of transfer), or requirement of
registration or prospectus delivery other than pursuant to Rule
144 ("Rule 144") of the Securities Act of 1933, as amended (the
"Securities Act"), or any successor rule, regulation or
provision;
(b) during the three-month period preceding the Trade Date, (i)
Counterparty has not sold any Shares (or securities convertible
into Shares), (ii) no Shares (or securities convertible into
Shares) which were donated by the Counterparty within one year
preceding the Trade Date have been sold for the account of the
donee thereof, (iii) no Shares (or securities convertible into
Shares) which were placed into a trust by the Counterparty as
settlor within one year preceding the Trade Date, if any, have
been sold and (iv) no other Shares (or securities convertible
into Shares) have been "sold" within the meaning of Rule 144(e);
(c) no default in any obligation of the Counterparty secured by
Shares (or securities convertible into Shares) has occurred
during the two-year period preceding the Trade Date;
(d) the Counterparty has not agreed with any person (natural or
legal) to act in concert for the purpose of selling Shares or any
securities convertible into Shares.
(e) for purposes of determining the holding period under Rule 144,
the Shares pledged as Collateral under this Transaction were
"acquired from the issuer" (for purposes of Rule 144) in January
2002;
(f) Counterparty is not, as at the Trade Date and at any date during
the Execution Period, in possession of any material non-public
information regarding the Shares or the issuer, and Counterparty
has not provided Bear ▇▇▇▇▇▇▇ with any material non-public
information relating to the issuer;
(g) all representations made by the Counterparty in the STAMPS
Disclosure letter dated October 14, 2003 were true and correct as
of the date made or deemed made;
Reference Number: NY26530
Mr. ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
October 30, 2003
Page 11 of 14
(h) Counterparty has the sole legal right, power and authority to
sell, pledge, transfer and deliver the Shares and authorizes Bear
▇▇▇▇▇▇▇ to have the Shares pledged as Collateral and reregistered
into Bear ▇▇▇▇▇▇▇'▇ "street name;" and
(i) as of the Trade Date, the Counterparty had a valid business
purpose for entering into this Transaction, and the Transaction
was consistent with the Counterparty's overall investment
strategy.
Documents to be Delivered by counterparty to Bear ▇▇▇▇▇▇▇. The Counterparty
agrees to deliver no later than Trade Date any documentation or instrument
necessary in order to have the shares reregistered into the name of Bear ▇▇▇▇▇▇▇
or its nominee which may include stock powers duly executed in blank, in proper
form for transfer or like instrument of transfer.
Additional Covenants of the Counterparty Relating to the Transaction. The
Counterparty agrees that during the Execution Period it shall not (a) sell any
Shares (or securities convertible into Shares) or (b) agree with any person
(natural or legal) to act in concert for the purpose of selling Shares or any
securities convertible into Shares.
Additional Mutual Covenants Relating to this Transaction. Each of Counterparty
and Bear ▇▇▇▇▇▇▇ agrees that (i) it will not treat this Transaction, any portion
of this Transaction, or any obligation hereunder as giving rise to any interest
income or other inclusions of ordinary income; (ii) it will not treat the
delivery of any portion of the Shares, assets or cash to be delivered pursuant
to this Agreement as the payment of interest or ordinary income; (iii) it will
treat this Agreement in its entirety as a forward contract for the delivery of
Shares; and (iv) it will not take any action (including filing any tax returns
or form or taking any position in any tax proceeding) inconsistent with the
obligations contained in (i) through (iii). Notwithstanding the preceding
sentence, either party may take any position required by law, provided that such
party delivers to the other party an opinion of counsel, nationally recognized
as expert in Federal tax matters, concerning the regulation or an administrative
arrangement or interpretation or applicable court decision published after the
date of this Agreement. Furthermore, Bear ▇▇▇▇▇▇▇ may treat this agreement in
such fashion it deems appropriate to accurately reflect this Transaction's
economic substance in its own booking, accounting and risk management systems.
ELECTIONS, MODIFICATIONS AND AMENDMENTS UNDER THE MASTER AGREEMENT:
SURVIVAL. The following provisions shall apply to all Transactions that are or
will be governed by the Master Agreement, notwithstanding the termination of
this particular Transaction.
PAYMENT DATE NERRING. The parties agree that subparagraph (ii) of Section 2(c)
of the Master Agreement will not apply to any Transactions that are or will be
governed by the Master Agreement. Thus all amounts payable on the same date in
the same currency in respect of all Transactions shall be netted.
PAYMENT MEASURE. For all Transactions that are or will be governed by the Master
Agreement, "Loss" and "Second Method" shall be the payment measure for purposes
of Section 6(e) of the Master Agreement, subject, however, as to any particular
Terminated Transaction, to the Confirmation therefor.
TRANSFER. For all Transactions that are will or Will be governed by the Master
Agreement, either party may transfer its rights and obligations under this
Transaction in accordance with Section 7 of the Master Agreement. However, Bear
▇▇▇▇▇▇▇ may also transfer its rights and obligations under this Transaction, in
whole or in part, to The Bear ▇▇▇▇▇▇▇ Companies Inc. ("TBSCI") or any of its
Affiliates, provided (a) such Affiliate's obligations under this Transaction
shall be fully and unconditionally guaranteed by
Reference Number. NY26530
Mr. ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
October 30, 2003
Page 12 of 14
TBSCI and (b) such transfer shall not result in the occurrence of an Event of
Default or Potential Event of Default.
ADDRESS FOR NOTICE. For all Transactions that are or will be governed by the
Master Agreement, the address of the parties shown as such on the most recently
executed Confirmation under the Master Agreement shall be deemed to have been
specified as the address for notices (for purposes of Section 12(a) of the
Master Agreement.
GOVERNING LAW. For all Transactions that are or will be governed by the Master
Agreement, the laws of the State of New York, without reference to the choice of
law principles thereof will be the governing law for purposes of Section 13(a)
of the Master Agreement.
DISPUTE RESOLUTION. EXCEPT AS OTHERWISE SET FORTH HEREIN AS IT MAY RELATE TO
SECTION 9.7 OF THE 1996 DEFINITIONS, CONTROVERSIES ARISING BETWEEN THE
COUNTERPARTY AND BSC SHALL BE DETERMINED IN ACCORDANCE WITH THE ARBITRATION
PROVISIONS OF THE CUSTOMER AGREEMENT.
RATE OF INTEREST. For all Transactions that are or will be governed by the
Master Agreement and for purposes of determining the Default Rate, the
Non-default Rate or the Termination Rate, it will be deemed that each party's
cost of funding will be determined daily as equaling USD-Federal Funds-H.15 for
such day (as defined in the Definitions).
CREDIT SUPPORT DOCUMENT. For all Transactions which are or will be governed by
the Master Agreement, each of (a) the Collateral Provisions contained in this
Confirmation, or any like provisions contained in any other Confirmation and (b)
the Customer Agreement dated as of {insert date} between each and every
subsidiary of TBSCI and the Counterparty (the "Customer Agreement") will be
deemed to be a Credit Support Document.
Reference Number: NY26530
Mr. ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
October 30, 2003
Page 13 of 14
SPECIFIED TRANSACTION. For all Transactions that are or will be governed by the
Master Agreement and for purposes of Section (c) of the definition of "Specified
Transactions" contained in Section 14 of the Master Agreement, Specified
Transactions shall mean any transaction, agreement (including the Customer
Agreement) and extensions of credit between BSC or any Specified Entity of BSC
and the Counterparty or any Specified Entity of the Counterparty, whether now
existing or hereafter entered into. "Specified Entity" with respect to any
person shall mean any Affiliate of such person.
TERMINATION CURRENCY. For all Transactions that are or will be governed by the
Master Agreement, USD.
This Confirmation may be executed in several counterparts, each of which shall
be deemed an original but all of which together shall constitute one and the
same instrument.
Counterparty hereby agrees to check this Confirmation and to confirm that the
foregoing correctly sets forth the terms of the Transaction by signing in the
space provided below and returning to Bear ▇▇▇▇▇▇▇ a facsimile of the
fully-executed Confirmation to ▇▇▇-▇▇▇-▇▇▇▇. For inquiries regarding U.S.
Transactions, please contact ▇▇▇▇▇ ▇▇▇▇▇ by telephone at ▇▇▇-▇▇▇-▇▇▇▇. For all
other inquiries please contact ▇▇▇▇▇▇▇ O'Dea by telephone at ▇▇▇-▇-▇▇▇-▇▇▇▇.
Originals will be provided for your execution upon your request.
We are very pleased to have executed this Transaction with you and we look
forward to completing other transactions with you in the near future.
Very truly yours,
BEAR ▇▇▇▇▇▇▇ BANK PLC
By: -s- [ILLEGIBLE]
----------------------
Name:
Title:
Counterparty ▇▇▇▇▇▇ agrees to, accepts and confirms the terms of the foregoing
as of the Trade Date.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By: -s- ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------
Reference Number: NY26530
Mr. ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
October 30, 2003
Page 14 of 14
EXHIBIT A--FORM OF TRANSACTION SUPPLEMENT
TRANSACTION SUPPLEMENT
TO: Mr. ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("Counterparty")
FROM: Bear ▇▇▇▇▇▇▇ Bank plc ("Bear ▇▇▇▇▇▇▇")
DATE: As of {Date}
THIS TRANSACTION SUPPLEMENT IS [NOT] THE FINAL TRANSACTION SUPPLEMENT.
This is a Transaction Supplement as described in the letter agreement between
Bear ▇▇▇▇▇▇▇ and Counterparty dated as of October 30, 2003. It embodies certain
of the economic terms of this Transaction described in that letter agreement.
This Transaction Supplement shall, upon its issuance by Bear ▇▇▇▇▇▇▇ be
incorporated into the letter agreement by reference, and shall be deemed to
supersede all prior Transaction Supplements.
For purposes of the letter agreement, this Transaction Supplement specifies the
following economic terms:
Transaction Supplement Date: {TRANSACTION SUPPLEMENT DATE}
Base Amount: {NUMBER} SHARES 400,000
Floor Price: USD {FLOOR PRICE} 100%
Cap Price: USD {CAP PRICE} 120%
Execution Price: USD {EXECUTION PRICE} 120%
Prepayment Amount: USD {PREPAYMENT AMOUNT}
Prepayment Percentage: {PREPAYMENT PERCENTAGE} 90.22
Pricing Date: [TO BE SPECIFIED IN THE FINAL TRANSACTION
SUPPLEMENT]
COUNTERPARTY SHALL BE BOUND BY THE TERMS OF THIS TRANSACTION SUPPLEMENT, UNLESS
THIS TRANSACTION SUPPLEMENT IS INCONSISTENT WITH THE AGREEMENTS BETWEEN THE
PARTIES INTENDED TO BE MEMORIALIZED HEREBY AND COUNTERPARTY NOTIFIES BEAR
▇▇▇▇▇▇▇ OF THAT FACT WITHIN ONE BUSINESS DAY OF THE RECEIPT BY COUNTERPARTY OF
THIS TRANSACTION SUPPLEMENT.
TRANSACTION SUPPLEMENT in respect of NY26530
TO: Mr. ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("Counterparty")
FAX: ▇▇▇-▇▇▇-▇▇▇▇
FROM: Bear ▇▇▇▇▇▇▇ Bank plc ("Bear ▇▇▇▇▇▇▇")
DATE: November 7, 2003
THIS TRANSACTION SUPPLEMENT IS THE FINAL TRANSACTION SUPPLEMENT.
This is a Transaction Supplement as described in the letter agreement between
Bear ▇▇▇▇▇▇▇ and Counterparty dated as of October 30, 2003. It embodies certain
of the economic terms of this Transaction described in that letter agreement.
This Transaction Supplement shall, upon its issuance by Bear ▇▇▇▇▇▇▇ be
incorporated into the letter agreement by reference, and shall be deemed to
supersede all prior Transaction Supplements.
For purposes of the letter agreement, this Transaction Supplement specifies the
following economic terms:
Transaction Supplement Date: This is the Transaction Supplement as of
November 6, 2003.
Base Amount: 400,000 Shares
Floor Price: USD 25.7577
Cap Price: USD 30.9092
Execution Price: USD 25.7577
Prepayment Amount: USD USD 9,295,440.00
Prepayment Percentage: 90.22%
Pricing Date: November 11, 2003
COUNTERPARTY SHALL BE BOUND BY THE TERMS OF THIS TRANSACTION SUPPLEMENT, UNLESS
THIS TRANSACTION SUPPLEMENT IS INCONSISTENT WITH THE AGREEMENTS BETWEEN THE
PARTIES INTENDED TO BE MEMORIALIZED HEREBY AND COUNTERPARTY NOTIFIES BEAR
▇▇▇▇▇▇▇ OF THAT FACT WITHIN ONE BUSINESS DAY OF THE RECEIPT BY COUNTERPARTY OF
THIS TRANSACTION SUPPLEMENT.