Common use of Sargon Operations Clause in Contracts

Sargon Operations. With respect to the New Sargon Portfolio, Sargon may, pursuant to this Agreement, (i) purchase or sell only Securities issued by Qualified Issuers and (ii) not purchase (measured by aggregate purchase basis - i.e., disregarding any appreciation or depreciation) more than $240 million of Securities of any single Qualified Issuer (for purposes of this calculation, derivatives such as options will be measured by “notional exposure” as opposed to premium paid). With respect to the Old Sargon Portfolio, prior to April 1, 2013 (i.e., the date that the Old Sargon Portfolio (excluding the co-investment by High River in the Existing Sargon Positions) will be “rolled into” the New Sargon Portfolio, at which time the Old Sargon Portfolio will cease to exist and the Existing Sargon Positions will be managed within the New Sargon Portfolio pursuant to the foregoing sentence), Sargon may, pursuant to this Agreement, (i) conduct transactions only with respect to the Existing Sargon Positions and (ii) not conduct any transactions with respect to the Existing Sargon Positions unless such transactions comply with the investment parameters set forth on Schedule II attached hereto (it being understood and agreed that such investment parameters are identical to Sections 4(b) and 4(c) of the Prior Agreement) (the “Existing Parameters”). Sargon may not at any time during the Term have positions in more than fifteen (15) different companies. Investments that satisfy all of the requirements set forth in the foregoing paragraph are referred to herein as “Permitted Investments.” The parties understand, acknowledge and agree that (i) except as set forth on Schedule I attached hereto, the First Profit Sharing Payment (as defined in Section 4(i) below) shall not take into account any co-investment by High River in Existing Sargon Positions prior to April 1, 2013 and (ii) the Second Profit Sharing Payment shall take into account any appreciation or depreciation in the market value of the Existing Sargon Positions (excluding the co-investment by High River in the Existing Sargon Positions) only between April 1, 2013 and the Final Date. Unless the Employer and each of the Co-Managers shall have consented in writing, except as set forth in the following paragraph and in Section 4(b) [ Decision Making ] below: (a) Sargon shall not purchase or sell any Securities of an issuer the Securities of which are held from time to time by the Employer or its Affiliates outside of Sargon (it being understood and agreed that a denial by the Employer of any request by one or both of the Co-Managers to have Sargon purchase or sell Securities of an issuer the Securities of which are held by the Employer or its Affiliates outside of Sargon shall not count as, or be deemed to be, an Employer New Investment Rejection, an Employer Existing Investment Rejection, an Employer Sale Rejection or an Employer Hedge Rejection, or otherwise constitute, contribute to, or be counted toward the determination of, a Terminating Event for purposes of this Agreement); and (b) neither the Employer nor its Affiliates shall purchase or sell outside of Sargon any Securities of an issuer the Securities of which are held from time to time in Sargon. For the avoidance of doubt, the Employer and its Affiliates shall not be restricted in any manner with respect to their hedging activities (i.e., any hedging transactions, whether or not they meet the definition of a “Permitted Hedge” and whether or not they are also being conducted within Sargon, may be conducted by the Employer and its Affiliates outside of Sargon). Notwithstanding the foregoing or any other provisions of this Agreement (including those in Section 4(b) [ Decision Making ] below): (1) The Employer and its Affiliates shall be permitted to conduct transactions outside of Sargon with respect to any issuer the Securities of which are held in Sargon if, but only if: (i) on the date (x) the Employer approved the proposal by the Co-Managers for Sargon to begin purchasing Securities of such issuer or (y) the Co-Managers approved the proposal by the Employer for Sargon to begin purchasing Securities of such issuer (in either case, the “Approval Date”), the issuer had a market capitalization of greater than $3.5 billion; and (ii) within 90 days following the Approval Date, Sargon has not acquired at least 5% of the outstanding shares of common stock of such issuer. (2) The phrase “Securities of an issuer the Securities of which are held from time to time by the Employer or its Affiliates outside of Sargon” in clause (a) of the foregoing paragraph shall be deemed to include Securities issued by any issuer (i) listed from time to time on the “watchlist” maintained by the Chief Compliance Officer of the Employer (whether or not the Employer or its Affiliates own any position in such issuer) or (ii) which operates in an industry in which the Employer or its Affiliates from time to time beneficially own more than 50% of the voting stock (or have nominated more than 50% of the members of the board of directors), directly or indirectly, of an issuer engaged, directly or indirectly, in an active operating business (as of the date hereof, such industries would include automotive parts and services, casinos and gaming, fertilizer production, food packaging, home textiles and fashion, metal scrap processing, petroleum refining and marketing, railcar manufacturing and servicing, telecommunications services, etc.) (i.e., Sargon may not purchase or sell any Securities of any such issuer and a denial by the Employer of any request by one or both of the Co-Managers to have Sargon purchase or sell any Securities of any such issuer shall not count as, or be deemed to be, an Employer New Investment Rejection, an Employer Existing Investment Rejection, an Employer Sale Rejection or an Employer Hedge Rejection, or otherwise constitute, contribute to, or be counted toward the determination of, a Terminating Event for purposes of this Agreement).

Sargon Operations. With respect to the New Sargon Portfolio, Sargon may, pursuant to this Agreement, (i) purchase or sell only Securities issued by Qualified Issuers and (ii) not purchase (measured by aggregate purchase basis - – i.e., disregarding any appreciation or depreciation) more than $240 million of Securities of any single Qualified Issuer (for purposes of this calculation, derivatives such as options will be measured by “notional exposure” as opposed to premium paid). With respect to the Old Sargon Portfolio, prior to April 1, 2013 (i.e., the date that the Old Sargon Portfolio (excluding the co-investment by High River in the Existing Sargon Positions) will be “rolled into” the New Sargon Portfolio, at which time the Old Sargon Portfolio will cease to exist and the Existing Sargon Positions will be managed within the New Sargon Portfolio pursuant to the foregoing sentence), Sargon may, pursuant to this Agreement, (i) conduct transactions only with respect to the Existing Sargon Positions and (ii) not conduct any transactions with respect to the Existing Sargon Positions unless such transactions comply with the investment parameters set forth on Schedule II attached hereto (it being understood and agreed that such investment parameters are identical to Sections 4(b) and 4(c) of the Prior Agreement) (the “Existing Parameters”). Sargon may not at any time during the Term have positions in more than fifteen (15) different companies. Investments that satisfy all of the requirements set forth in the foregoing paragraph are referred to herein as “Permitted Investments.” The parties understand, acknowledge and agree that (i) except as set forth on Schedule I attached hereto, the First Profit Sharing Payment (as defined in Section 4(i) below) shall not take into account any co-investment by High River in Existing Sargon Positions prior to April 1, 2013 and (ii) the Second Profit Sharing Payment shall take into account any appreciation or depreciation in the market value of the Existing Sargon Positions (excluding the co-investment by High River in the Existing Sargon Positions) only between April 1, 2013 and the Final Date. Unless the Employer and each of the Co-Managers shall have consented in writing, except as set forth in the following paragraph and in Section 4(b) [ [Decision Making Making] below: (a) Sargon shall not purchase or sell any Securities of an issuer the Securities of which are held from time to time by the Employer or its Affiliates outside of Sargon (it being understood and agreed that a denial by the Employer of any request by one or both of the Co-Managers to have Sargon purchase or sell Securities of an issuer the Securities of which are held by the Employer or its Affiliates outside of Sargon shall not count as, or be deemed to be, an Employer New Investment Rejection, an Employer Existing Investment Rejection, an Employer Sale Rejection or an Employer Hedge Rejection, or otherwise constitute, contribute to, or be counted toward the determination of, a Terminating Event for purposes of this Agreement); and (b) neither the Employer nor its Affiliates shall purchase or sell outside of Sargon any Securities of an issuer the Securities of which are held from time to time in Sargon. For the avoidance of doubt, the Employer and its Affiliates shall not be restricted in any manner with respect to their hedging activities (i.e., any hedging transactions, whether or not they meet the definition of a “Permitted Hedge” and whether or not they are also being conducted within Sargon, may be conducted by the Employer and its Affiliates outside of Sargon). Notwithstanding the foregoing or any other provisions of this Agreement (including those in Section 4(b) [ [Decision Making Making] below): (1) The Employer and its Affiliates shall be permitted to conduct transactions outside of Sargon with respect to any issuer the Securities of which are held in Sargon if, but only if: (i) on the date (x) the Employer approved the proposal by the Co-Managers for Sargon to begin purchasing Securities of such issuer or (y) the Co-Managers approved the proposal by the Employer for Sargon to begin purchasing Securities of such issuer (in either case, the “Approval Date”), the issuer had a market capitalization of greater than $3.5 billion; and (ii) within 90 days following the Approval Date, Sargon has not acquired at least 5% of the outstanding shares of common stock of such issuer. (2) The phrase “Securities of an issuer the Securities of which are held from time to time by the Employer or its Affiliates outside of Sargon” in clause (a) of the foregoing paragraph shall be deemed to include Securities issued by any issuer (i) listed from time to time on the “watchlist” maintained by the Chief Compliance Officer of the Employer (whether or not the Employer or its Affiliates own any position in such issuer) or (ii) which operates in an industry in which the Employer or its Affiliates from time to time beneficially own more than 50% of the voting stock (or have nominated more than 50% of the members of the board of directors), directly or indirectly, of an issuer engaged, directly or indirectly, in an active operating business (as of the date hereof, such industries would include automotive parts and services, casinos and gaming, fertilizer production, food packaging, home textiles and fashion, metal scrap processing, petroleum refining and marketing, railcar manufacturing and servicing, telecommunications services, etc.) (i.e., Sargon may not purchase or sell any Securities of any such issuer and a denial by the Employer of any request by one or both of the Co-Managers to have Sargon purchase or sell any Securities of any such issuer shall not count as, or be deemed to be, an Employer New Investment Rejection, an Employer Existing Investment Rejection, an Employer Sale Rejection or an Employer Hedge Rejection, or otherwise constitute, contribute to, or be counted toward the determination of, a Terminating Event for purposes of this Agreement).