1
EXHIBIT 5
A R D S L E Y
PARTNERS
TRANSACTION
The purpose of this letter agreement (the "Confirmation") is to set
forth the terms and conditions of the Option Transaction entered into between
Ardsley Partners Fund I, L.P. and Xxxxxx Management Corp. on the Trade Date
specified below (the "Option").
The definitions and provisions contained in the 1991 ISDA Definitions
(as published by the International Swaps & Derivatives Association, Inc.,
("ISDA")) (the "Definitions") are incorporated into this Confirmation. In the
event of any inconsistency between the Definitions and provisions of this
Confirmation, this Confirmation will govern.
Each party is hereby advised, and each such party acknowledges, that
the other party has engaged in (or refrained from engaging in) substantial
financial transactions and has taken other material actions in reliance upon
the parties' entry into the Option to which this Confirmation relates on the
terms and conditions set forth below.
This Confirmation will be governed by and construed in accordance with
the laws of the State of New York, without reference to choice of law doctrine.
The parties hereto irrevocably submit to the non-exclusive jurisdiction of the
courts of the State of New York and the United States Court for the Southern
District of New York in connection with all matters relating hereto, and waive
any objection to the laying of venue in, and any claim of inconvenient forum
with respect to, these courts.
The terms of the Option to which this Confirmation relates are as
follows:
General Terms:
Effective Date: November 16, 1995
Trade Date: November 16, 1995
Option Style: American
Option Type: Call
Seller: Ardsley Partners Fund I, L.P.
Buyer: Xxxxxx Management Corp.
Underlying Stock: Tesoro Petroleum Corporation
Common Stock
2
Number of Shares: 90,000
Number of Option Units: 900
Strike Price: USD $8.25 per share
Premium: USD $8,100.00 payable as per "Appendix B" which
follows.
Premium Payment Date: November 22, 1995
Business Day: Any day (i) on which commercial banks are open for
business (including dealings in foreign exchange
and foreign currency deposits) in New York and (ii)
which is a scheduled trading day on the New York
Stock Exchange, the Chicago Board Options Exchange
and the Chicago Mercantile Exchange, other than a
day on which trading on any such exchange is
scheduled to close prior to its regular weekday
closing time.
Exchanges: New York Stock Exchange, American Stock Exchange
and NASDAQ.
Calculating Agent: A third party acceptable to Xxxxx and Seller, whose
determinations and calculations shall be binding in
the absence of manifest error.
Procedure for Exercise:
Exercise Notice: In order to exercise all or part of the Option, an
Exercise Notice in the form set forth below as
appendix "A" shall be sent by facsimile
transmission, telex, hand or overnight delivery to
the Seller. The seller will then sign, date and
time the Exercise Notice and return it to the Buyer
to confirm the Exercise.
3
Expiration Date: May 16, 1996 or, if that date is not a Business
Day, the first following day that is a Business
Day.
Partial Exercise: Allowed. After the Exercise Period, any
unexercised Option Units will be deemed expired
worthless and no longer subject to the terms of
this Confirmation. If only a part of the Option is
exercised, the seller's confirmation(s) of the
Exercise Notice will include a "Remaining Number or
Shares". This quantity shall be considered to be
the new Number of Shares for the Option until the
next Partial Exercise or the Expiration Date,
whichever comes first. Any confirmed Exercise
Notice for partial exercises will become an
addendum to the Confirmation to support changes to
the Number of Shares.
Sellers' Telephone and Facsimile Number Telephone: 000-000-0000
for the purpose of Giving Notice:
Facsimile: 000-000-0000
Market Disruption Event: The occurrence or existence on any Business Day
during the one-half hour period that ends at the
close of trading on the Exchange on any Business
Day of any suspension of or limitation imposed on
trading (by reason of movements in price exceeding
limits permitted by the relevant exchange or
otherwise) on (i) the Exchange in the Underlying
Stock or (ii) in options contracts on the
Underlying Stock, if, in the determination of the
Calculation Agent, such suspension or limitation is
material. The Calculation Agent shall as soon as
reasonably practicable under the circumstances
notify the other party of the existence or
occurrence of a Market Disruption Event for the
purpose of addressing and or recomputing any
necessary adjustments to the Underlying Stock.
4
Adjustments to The Option:
During the life of the Option, if any adjustment is made by The Options
Clearing Corporation or its successors ("OCC") in the terms of the outstanding
OCC-issued options ("OCC Options") on the Underlying Stock, an equivalent
adjustment shall be made in the terms of the Option. If any time during the
life of the Option there shall be no outstanding OCC Options on the Underlying
Stock, and an event shall occur for which an adjustment might otherwise be made
under the By-Laws, Rules, and stated policies of OCC applicable to the
adjustment of OCC Options (the "OCC Adjustment Rules"), then adjustment shall
be made in the terms of the Option applying the principles set forth in the OCC
Adjustment Rules. In addition to the foregoing sentence, adjustment shall also
be made (by applying the principles set forth in the OCC Adjustment Rules) in
the terms of the Option for any and all cash dividends, stock dividends, stock
distributions and stock splits on the Underlying Stock, and distributions of
property other than additional Underlying Stock during the life of the Option,
regardless of the size or amount thereof and regardless of whether adjustment
is made by OCC in respect thereof.
Settlement Terms:
Physical Delivery: The share quantity of (Number of Option Units
Exercised * 100) will be delivered via the
Depository Trust Co. to the custodian or custodians
to be named by the Buyer.
Physical Delivery Date: 3 Business Days after Valuation Date.
Default:
If the Buyer fails to make, when due, any payment or delivery required
to be made by it under this Confirmation or under any other transaction with
the Seller within five Business Days (or such xxxxxxx xxxxx period provided in
such other transaction) of notice of such failure being given to the Buyer, the
Seller may, by notice to the Buyer, terminate the Option evidenced by this
Confirmation.
Counterparty Representation:
Counterparty hereby represents that it has entered into this contract
in order to offset in whole or in part earnings it expects from assets it has
acquired or anticipates acquiring or liabilities it has incurred or anticipates
incurring.
5
Transfer:
This Transaction may be assigned or transferred by either party, the
transferring party having given three (3) day's prior notice of such transfer
or assignment.
Please confirm your acceptance and agreement with the foregoing by
immediately executing the copy of this Confirmation enclosed for that purpose
and returning it to:
Yours sincerely,
By: Ardsley Partners
By: /s/ Xxxxx X. XxXxxxxxx
----------------------------
Name: Xxxxx X. XxXxxxxxx
Title: Partner
Accepted and agreed as of the
date first above written:
By: XXXXXX MANAGEMENT CORP.
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
6
A R D S L E Y
PARTNERS
TRANSACTION
The purpose of this letter agreement (the "Confirmation") is to set
forth the terms and conditions of the Option Transaction entered into between
Ardsley Partners Fund I, L.P. and Xxxxxx Management Corp. on the Trade Date
specified below (the "Option").
The definitions and provisions contained in the 1991 ISDA Definitions
(as published by the International Swaps & Derivatives Association, Inc.,
("ISDA")) (the "Definitions") are incorporated into this Confirmation. In the
event of any inconsistency between the Definitions and provisions of this
Confirmation, this Confirmation will govern.
Each party is hereby advised, and each such party acknowledges, that
the other party has engaged in (or refrained from engaging in) substantial
financial transactions and has taken other material actions in reliance upon
the parties' entry into the Option to which this Confirmation relates on the
terms and conditions set forth below.
This Confirmation will be governed by and construed in accordance with
the laws of the State of New York, without reference to choice of law doctrine.
The parties hereto irrevocably submit to the non-exclusive jurisdiction of the
courts of the State of New York and the United States Court for the Southern
District of New York in connection with all matters relating hereto, and waive
any objection to the laying of venue in, and any claim of inconvenient forum
with respect to, these courts.
The terms of the Option to which this Confirmation relates are as
follows:
General Terms:
Effective Date: November 16, 1995
Trade Date: November 16, 1995
Option Style: American
Option Type: Call
Seller: Ardsley Partners Fund II, L.P.
Buyer: Xxxxxx Management Corp.
Underlying Stock: Tesoro Petroleum Corporation
Common Stock
7
Number of Shares: 100,000
Number of Option Units: 1,000
Strike Price: USD $8.25 per share
Premium: USD $9,000.00 payable as per "Appendix B" which
follows.
Premium Payment Date: November 22, 1995
Business Day: Any day (i) on which commercial banks are open for
business (including dealings in foreign exchange
and foreign currency deposits) in New York and (ii)
which is a scheduled trading day on the New York
Stock Exchange, the Chicago Board Options Exchange
and the Chicago Mercantile Exchange, other than a
day on which trading on any such exchange is
scheduled to close prior to its regular weekday
closing time.
Exchanges: New York Stock Exchange, American Stock Exchange
and NASDAQ.
Calculating Agent: A third party acceptable to Xxxxx and Seller, whose
determinations and calculations shall be binding in
the absence of manifest error.
Procedure for Exercise:
Exercise Notice: In order to exercise all or part of the Option, an
Exercise Notice in the form set forth below as
appendix "A" shall be sent by facsimile
transmission, telex, hand or overnight delivery to
the Seller. The seller will then sign, date and
time the Exercise Notice and return it to the Buyer
to confirm the Exercise.
Exercise Period: Any Business Day up to and including the Expiration
Date between 9:00 am and 4:15 p.m. local time in
New York.
8
Expiration Date: May 16, 1996 or, if that date is not a Business
Day, the first following day that is a Business
Day.
Partial Exercise: Allowed. After the Exercise Period, any
unexercised Option Units will be deemed expired
worthless and no longer subject to the terms of
this Confirmation. If only a part of the Option is
exercised, the seller's confirmation(s) of the
Exercise Notice will include a "Remaining Number or
Shares". This quantity shall be considered to be
the new Number of Shares for the Option until the
next Partial Exercise or the Expiration Date,
whichever comes first. Any confirmed Exercise
Notice for partial exercises will become an
addendum to the Confirmation to support changes to
the Number of Shares.
Sellers' Telephone and Facsimile Number Telephone: 000-000-0000
for the purpose of Giving Notice: Facsimile: 000-000-0000
Market Disruption Event: The occurrence or existence on any Business Day
during the one-half hour period that ends at the
close of trading on the Exchange on any Business
Day of any suspension of or limitation imposed on
trading (by reason of movements in price exceeding
limits permitted by the relevant exchange or
otherwise) on (i) the Exchange in the Underlying
Stock or (ii) in options contracts on the
Underlying Stock, if, in the determination of the
Calculation Agent, such suspension or limitation is
material. The Calculation Agent shall as soon as
reasonably practicable under the circumstances
notify the other party of the existence or
occurrence of a Market Disruption Event for the
purpose of addressing and or recomputing any
necessary adjustments to the Underlying Stock.
9
Adjustments to The Option:
During the life of the Option, if any adjustment is made by The Options
Clearing Corporation or its successors ("OCC") in the terms of the outstanding
OCC-issued options ("OCC Options") on the Underlying Stock, an equivalent
adjustment shall be made in the terms of the Option. If any time during the
life of the Option there shall be no outstanding OCC Options on the Underlying
Stock, and an event shall occur for which an adjustment might otherwise be made
under the By-Laws, Rules, and stated policies of OCC applicable to the
adjustment of OCC Options (the "OCC Adjustment Rules"), then adjustment shall
be made in the terms of the Option applying the principles set forth in the OCC
Adjustment Rules. In addition to the foregoing sentence, adjustment shall also
be made (by applying the principles set forth in the OCC Adjustment Rules) in
the terms of the Option for any and all cash dividends, stock dividends, stock
distributions and stock splits on the Underlying Stock, and distributions of
property other than additional Underlying Stock during the life of the Option,
regardless of the size or amount thereof and regardless of whether adjustment
is made by OCC in respect thereof.
Settlement Terms:
Physical Delivery: The share quantity of (Number of Option Units
Exercised * 100) will be delivered via the
Depository Trust Co. to the custodian or custodians
to be named by the Buyer.
Physical Delivery Date: 3 Business Days after Valuation Date.
Default:
If the Buyer fails to make, when due, any payment or delivery required
to be made by it under this Confirmation or under any other transaction with
the Seller within five Business Days (or such xxxxxxx xxxxx period provided in
such other transaction) of notice of such failure being given to the Buyer, the
Seller may, by notice to the Buyer, terminate the Option evidenced by this
Confirmation.
Counterparty Representation:
Counterparty hereby represents that it has entered into this contract
in order to offset in whole or in part earnings it expects from assets it has
acquired or anticipates acquiring or liabilities it has incurred or anticipates
incurring.
10
Transfer:
This Transaction may be assigned or transferred by either party, the
transferring party having given three (3) day's prior notice of such transfer
or assignment.
Please confirm your acceptance and agreement with the foregoing by
immediately executing the copy of this Confirmation enclosed for that purpose
and returning it to:
Yours sincerely,
By: Ardsley Partners
By: /s/ Xxxxx X. XxXxxxxxx
----------------------------
Name: Xxxxx X. XxXxxxxxx
Title: Partner
Accepted and agreed as of the
date first above written:
By: XXXXXX MANAGEMENT CORP.
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
11
A R D S L E Y
PARTNERS
TRANSACTION
The purpose of this letter agreement (the "Confirmation") is to set
forth the terms and conditions of the Option Transaction entered into between
Ardsley Partners Fund I, L.P. and Xxxxxx Management Corp. on the Trade Date
specified below (the "Option").
The definitions and provisions contained in the 1991 ISDA Definitions
(as published by the International Swaps & Derivatives Association, Inc.,
("ISDA")) (the "Definitions") are incorporated into this Confirmation. In the
event of any inconsistency between the Definitions and provisions of this
Confirmation, this Confirmation will govern.
Each party is hereby advised, and each such party acknowledges, that
the other party has engaged in (or refrained from engaging in) substantial
financial transactions and has taken other material actions in reliance upon
the parties' entry into the Option to which this Confirmation relates on the
terms and conditions set forth below.
This Confirmation will be governed by and construed in accordance with
the laws of the State of New York, without reference to choice of law doctrine.
The parties hereto irrevocably submit to the non-exclusive jurisdiction of the
courts of the State of New York and the United States Court for the Southern
District of New York in connection with all matters relating hereto, and waive
any objection to the laying of venue in, and any claim of inconvenient forum
with respect to, these courts.
The terms of the Option to which this Confirmation relates are as
follows:
General Terms:
Effective Date: November 16, 1995
Trade Date: November 16, 1995
Option Style: American
Option Type: Call
Seller: Ardsley Offshore Fund, Ltd.
Buyer: Xxxxxx Management Corp.
Underlying Stock: Tesoro Petroleum Corporation
Common Stock
12
Number of Shares: 160,000
Number of Option Units: 1,600
Strike Price: USD $8.25 per share
Premium: USD $14,400.00 payable as per "Appendix B" which
follows.
Premium Payment Date: November 22, 1995
Business Day: Any day (i) on which commercial banks are open for
business (including dealings in foreign exchange
and foreign currency deposits) in New York and (ii)
which is a scheduled trading day on the New York
Stock Exchange, the Chicago Board Options Exchange
and the Chicago Mercantile Exchange, other than a
day on which trading on any such exchange is
scheduled to close prior to its regular weekday
closing time.
Exchanges: New York Stock Exchange, American Stock Exchange
and NASDAQ.
Calculating Agent: A third party acceptable to Xxxxx and Seller, whose
determinations and calculations shall be binding in
the absence of manifest error.
Procedure for Exercise:
Exercise Notice: In order to exercise all or part of the Option, an
Exercise Notice in the form set forth below as
appendix "A" shall be sent by facsimile
transmission, telex, hand or overnight delivery to
the Seller. The seller will then sign, date and
time the Exercise Notice and return it to the Buyer
to confirm the Exercise.
Exercise Period: Any Business Day up to and including the Expiration
Date between 9:00 am and 4:15 p.m. local time in
New York.
13
Expiration Date: May 16, 1996 or, if that date is not a Business
Day, the first following day that is a Business
Day.
Partial Exercise: Allowed. After the Exercise Period, any
unexercised Option Units will be deemed expired
worthless and no longer subject to the terms of
this Confirmation. If only a part of the Option is
exercised, the seller's confirmation(s) of the
Exercise Notice will include a "Remaining Number or
Shares". This quantity shall be considered to be
the new Number of Shares for the Option until the
next Partial Exercise or the Expiration Date,
whichever comes first. Any confirmed Exercise
Notice for partial exercises will become an
addendum to the Confirmation to support changes to
the Number of Shares.
Sellers' Telephone and Facsimile Number Telephone: 000-000-0000
for the purpose of Giving Notice:
Facsimile: 000-000-0000
Market Disruption Event: The occurrence or existence on any Business Day
during the one-half hour period that ends at the
close of trading on the Exchange on any Business
Day of any suspension of or limitation imposed on
trading (by reason of movements in price exceeding
limits permitted by the relevant exchange or
otherwise) on (i) the Exchange in the Underlying
Stock or (ii) in options contracts on the
Underlying Stock, if, in the determination of the
Calculation Agent, such suspension or limitation is
material. The Calculation Agent shall as soon as
reasonably practicable under the circumstances
notify the other party of the existence or
occurrence of a Market Disruption Event for the
purpose of addressing and or recomputing any
necessary adjustments to the Underlying Stock.
14
Adjustments to The Option:
During the life of the Option, if any adjustment is made by The Options
Clearing Corporation or its successors ("OCC") in the terms of the outstanding
OCC-issued options ("OCC Options") on the Underlying Stock, an equivalent
adjustment shall be made in the terms of the Option. If any time during the
life of the Option there shall be no outstanding OCC Options on the Underlying
Stock, and an event shall occur for which an adjustment might otherwise be made
under the By-Laws, Rules, and stated policies of OCC applicable to the
adjustment of OCC Options (the "OCC Adjustment Rules"), then adjustment shall
be made in the terms of the Option applying the principles set forth in the OCC
Adjustment Rules. In addition to the foregoing sentence, adjustment shall also
be made (by applying the principles set forth in the OCC Adjustment Rules) in
the terms of the Option for any and all cash dividends, stock dividends, stock
distributions and stock splits on the Underlying Stock, and distributions of
property other than additional Underlying Stock during the life of the Option,
regardless of the size or amount thereof and regardless of whether adjustment
is made by OCC in respect thereof.
Settlement Terms:
Physical Delivery: The share quantity of (Number of Option Units
Exercised * 100) will be delivered via the
Depository Trust Co. to the custodian or custodians
to be named by the Buyer.
Physical Delivery Date: 3 Business Days after Valuation Date.
Default:
If the Buyer fails to make, when due, any payment or delivery required
to be made by it under this Confirmation or under any other transaction with
the Seller within five Business Days (or such xxxxxxx xxxxx period provided in
such other transaction) of notice of such failure being given to the Buyer, the
Seller may, by notice to the Buyer, terminate the Option evidenced by this
Confirmation.
Counterparty Representation:
Counterparty hereby represents that it has entered into this contract
in order to offset in whole or in part earnings it expects from assets it has
acquired or anticipates acquiring or liabilities it has incurred or anticipates
incurring.
15
Transfer:
This Transaction may be assigned or transferred by either party, the
transferring party having given three (3) day's prior notice of such transfer
or assignment.
Please confirm your acceptance and agreement with the foregoing by
immediately executing the copy of this Confirmation enclosed for that purpose
and returning it to:
Yours sincerely,
By: Ardsley Partners
By: /s/ Xxxxx X. XxXxxxxxx
---------------------------
Name: Xxxxx X. XxXxxxxxx
Title: Partner
Accepted and agreed as of the
date first above written:
By: XXXXXX MANAGEMENT CORP.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
16
A R D S L E Y
PARTNERS
TRANSACTION
The purpose of this letter agreement (the "Confirmation") is to set
forth the terms and conditions of the Option Transaction entered into between
Ardsley Partners Fund I, L.P. and Xxxxxx Management Corp. on the Trade Date
specified below (the "Option").
The definitions and provisions contained in the 1991 ISDA Definitions
(as published by the International Swaps & Derivatives Association, Inc.,
("ISDA")) (the "Definitions") are incorporated into this Confirmation. In the
event of any inconsistency between the Definitions and provisions of this
Confirmation, this Confirmation will govern.
Each party is hereby advised, and each such party acknowledges, that
the other party has engaged in (or refrained from engaging in) substantial
financial transactions and has taken other material actions in reliance upon
the parties' entry into the Option to which this Confirmation relates on the
terms and conditions set forth below.
This Confirmation will be governed by and construed in accordance with
the laws of the State of New York, without reference to choice of law doctrine.
The parties hereto irrevocably submit to the non-exclusive jurisdiction of the
courts of the State of New York and the United States Court for the Southern
District of New York in connection with all matters relating hereto, and waive
any objection to the laying of venue in, and any claim of inconvenient forum
with respect to, these courts.
The terms of the Option to which this Confirmation relates are as
follows:
General Terms:
Effective Date: November 16, 1995
Trade Date: November 16, 1995
Option Style: American
Option Type: Call
Seller: Ardsley Institutional Fund, L.P.
Buyer: Xxxxxx Management Corp.
Underlying Stock: Tesoro Petroleum Corporation
Common Stock
17
Number of Shares: 50,000
Number of Option Units: 500
Strike Price: USD $8.25 per share
Premium: USD $4,500.00 payable as per "Appendix B" which
follows.
Premium Payment Date: November 22, 1995
Business Day: Any day (i) on which commercial banks are open for
business (including dealings in foreign exchange
and foreign currency deposits) in New York and (ii)
which is a scheduled trading day on the New York
Stock Exchange, the Chicago Board Options Exchange
and the Chicago Mercantile Exchange, other than a
day on which trading on any such exchange is
scheduled to close prior to its regular weekday
closing time.
Exchanges: New York Stock Exchange, American Stock Exchange
and NASDAQ.
Calculating Agent: A third party acceptable to Xxxxx and Seller, whose
determinations and calculations shall be binding in
the absence of manifest error.
Procedure for Exercise:
Exercise Notice: In order to exercise all or part of the Option, an
Exercise Notice in the form set forth below as
appendix "A" shall be sent by facsimile
transmission, telex, hand or overnight delivery to
the Seller. The seller will then sign, date and
time the Exercise Notice and return it to the Buyer
to confirm the Exercise.
Exercise Period: Any Business Day up to and including the Expiration
Date between 9:00 am and 4:15 p.m. local time in
New York.
18
Expiration Date: May 16, 1996 or, if that date is not a Business
Day, the first following day that is a Business
Day.
Partial Exercise: Allowed. After the Exercise Period, any
unexercised Option Units will be deemed expired
worthless and no longer subject to the terms of
this Confirmation. If only a part of the Option is
exercised, the seller's confirmation(s) of the
Exercise Notice will include a "Remaining Number or
Shares". This quantity shall be considered to be
the new Number of Shares for the Option until the
next Partial Exercise or the Expiration Date,
whichever comes first. Any confirmed Exercise
Notice for partial exercises will become an
addendum to the Confirmation to support changes to
the Number of Shares.
Sellers' Telephone and Facsimile Number Telephone: 000-000-0000
for the purpose of Giving Notice: Facsimile: 000-000-0000
Market Disruption Event: The occurrence or existence on any Business Day
during the one-half hour period that ends at the
close of trading on the Exchange on any Business
Day of any suspension of or limitation imposed on
trading (by reason of movements in price exceeding
limits permitted by the relevant exchange or
otherwise) on (i) the Exchange in the Underlying
Stock or (ii) in options contracts on the
Underlying Stock, if, in the determination of the
Calculation Agent, such suspension or limitation is
material. The Calculation Agent shall as soon as
reasonably practicable under the circumstances
notify the other party of the existence or
occurrence of a Market Disruption Event for the
purpose of addressing and or recomputing any
necessary adjustments to the Underlying Stock.
19
Adjustments to The Option:
During the life of the Option, if any adjustment is made by The Options
Clearing Corporation or its successors ("OCC") in the terms of the outstanding
OCC-issued options ("OCC Options") on the Underlying Stock, an equivalent
adjustment shall be made in the terms of the Option. If any time during the
life of the Option there shall be no outstanding OCC Options on the Underlying
Stock, and an event shall occur for which an adjustment might otherwise be made
under the By-Laws, Rules, and stated policies of OCC applicable to the
adjustment of OCC Options (the "OCC Adjustment Rules"), then adjustment shall
be made in the terms of the Option applying the principles set forth in the OCC
Adjustment Rules. In addition to the foregoing sentence, adjustment shall also
be made (by applying the principles set forth in the OCC Adjustment Rules) in
the terms of the Option for any and all cash dividends, stock dividends, stock
distributions and stock splits on the Underlying Stock, and distributions of
property other than additional Underlying Stock during the life of the Option,
regardless of the size or amount thereof and regardless of whether adjustment
is made by OCC in respect thereof.
Settlement Terms:
Physical Delivery: The share quantity of (Number of Option Units
Exercised * 100) will be delivered via the
Depository Trust Co. to the custodian or custodians
to be named by the Buyer.
Physical Delivery Date: 3 Business Days after Valuation Date.
Default:
If the Buyer fails to make, when due, any payment or delivery required
to be made by it under this Confirmation or under any other transaction with
the Seller within five Business Days (or such xxxxxxx xxxxx period provided in
such other transaction) of notice of such failure being given to the Buyer, the
Seller may, by notice to the Buyer, terminate the Option evidenced by this
Confirmation.
Counterparty Representation:
Counterparty hereby represents that it has entered into this contract
in order to offset in whole or in part earnings it expects from assets it has
acquired or anticipates acquiring or liabilities it has incurred or anticipates
incurring.
20
Transfer:
This Transaction may be assigned or transferred by either party, the
transferring party having given three (3) day's prior notice of such transfer
or assignment.
Please confirm your acceptance and agreement with the foregoing by
immediately executing the copy of this Confirmation enclosed for that purpose
and returning it to:
Yours sincerely,
By: Ardsley Partners
By: /s/ Xxxxx X. XxXxxxxxx
----------------------------
Name: Xxxxx X. XxXxxxxxx
Title: Partner
Accepted and agreed as of the
date first above written:
By: XXXXXX MANAGEMENT CORP.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
