Master Confirmation Agreement for Share Transactions – Plantronics
GOLDMAN, SACHS & CO. | 200 WEST STREET | NEW
YORK, NEW YORK 10282-2198 | TEL: 212-902-1000
Opening Transaction
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To: |
Plantronics, Inc. 345 Encinal Street Santa Cruz, California 95060 |
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A/C: |
042434696 |
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From: |
Goldman, Sachs & Co. |
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Re: |
Accelerated Stock Buyback |
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Ref. No: |
As provided in the Supplemental Confirmation |
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Date: |
May 9, 2011 |
*** Certain information in this Agreement has been omitted and filed
separately with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
This master confirmation (this “Master Confirmation“), dated
as of May 9, 2011 is intended to set forth certain terms and provisions of
certain Transactions (each, a “Transaction“) entered into from
time to time between Goldman, Sachs & Co. (“GS&Co.“)
and Plantronics, Inc., a Delaware corporation
(“Counterparty“). This Master Confirmation, taken alone, is
neither a commitment by either party to enter into any Transaction nor evidence
of a Transaction. The additional terms of any particular Transaction shall be
set forth in a Supplemental Confirmation in the form of Schedule A hereto (a
“Supplemental Confirmation“), which shall reference this Master
Confirmation and supplement, form a part of, and be subject to this Master
Confirmation. This Master Confirmation and each Supplemental Confirmation
together shall constitute a “Confirmation” as referred to in the Agreement
specified below.
The definitions and provisions contained in the 2002 ISDA Equity Derivatives
Definitions (the “Equity Definitions“), as published by the
International Swaps and Derivatives Association, Inc., are incorporated into
this Master Confirmation. This Master Confirmation and each Supplemental
Confirmation evidence a complete binding agreement between Counterparty and
GS&Co. as to the subject matter and terms of each Transaction to which this
Master Confirmation and such Supplemental Confirmation relate and shall
supersede all prior or contemporaneous written or oral communications with
respect thereto.
This Master Confirmation and each Supplemental Confirmation supplement, form
a part of, and are subject to an agreement in the form of the 1992 ISDA Master
Agreement (Multicurrency-Cross Border) (the “Agreement“) as if
GS&Co. and Counterparty had executed the Agreement on the date of this
Master Confirmation (but without any Schedule except for (i) the election of
Loss and Second Method, New York law (without reference to its choice of laws
doctrine other than Title 14 of Article 5 of the New York General Obligations
Law) as the governing law and US Dollars (“USD“) as the
Termination Currency, (ii) the election that subparagraph (ii) of Section 2(c)
will not apply to the Transactions, (iii) the election that the “Cross Default”
provisions of Section 5(a)(vi) shall apply to Counterparty and to GS&Co.,
with a “Threshold Amount” of USD 50 million, provided that (x) the words “, or
becoming capable at such time of being declared,” shall be deleted from such
Section 5(a)(vi) and (y) the following language shall be added to the end of
such Section 5(a)(vi): “Notwithstanding the foregoing, a default under
subsection (2) hereof shall not constitute an Event of Default if (i) the
default was caused solely by error or omission of an administrative or
operational nature; (ii) funds were available to enable the party to make the
payment when due; and (iii) the payment is made within two Local Business Days
of such party’s receipt of written notice of its failure to pay.”), (iv) the
designation of the General Guarantee Agreement dated January 30, 2006 made by
The Goldman Sachs Group, Inc. (“GS Group”) in favor of each person to whom
GS&Co. may owe any Obligations (as defined in the General Guarantee
Agreement) and filed as Exhibit 10.45 to GS Group’s Form 10-K for the fiscal
year ended November 25, 2005 and any successor guarantee by GS Group in favor of
each person to whom GS&Co. may owe any Obligations (as defined in the
General Guarantee Agreement) as a Credit Support Document under the Agreement
and (v) the designation of GS Group as a Credit Support Provider in relation to
GS&Co. under the Agreement.
The Transactions shall be the sole Transactions under the Agreement. If there
exists any ISDA Master Agreement between GS&Co. and Counterparty or any
confirmation or other agreement between GS&Co. and Counterparty pursuant to
which an ISDA Master Agreement is deemed to exist between GS&Co. and
Counterparty, then notwithstanding anything to the contrary in such ISDA Master
Agreement, such confirmation or agreement or any other agreement to which
GS&Co. and Counterparty are parties, the Transactions shall not be
considered Transactions under, or otherwise governed by, such existing or deemed
ISDA Master Agreement. For purposes of the ISDA Master Agreement, Part 1(e) of
the Schedule with respect to Automatic Early Termination shall not apply to
either party.
All provisions contained or incorporated by reference in the Agreement shall
govern this Master Confirmation and each Supplemental Confirmation except as
expressly modified herein or in the related Supplemental Confirmation.
If, in relation to any Transaction to which this Master Confirmation and a
Supplemental Confirmation relate, there is any inconsistency between the
Agreement, this Master Confirmation, any Supplemental Confirmation and the
Equity Definitions, the following will prevail for purposes of such Transaction
in the order of precedence indicated: (i) such Supplemental Confirmation; (ii)
this Master Confirmation; (iii) the Agreement; and (iv) the Equity Definitions.
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1. |
Each Transaction constitutes a Share Forward Transaction for the purposes of |
General Terms:
Trade Date: For each Transaction, as set forth in the related Supplemental
Confirmation.
Buyer: Counterparty
Seller: GS&Co.
Shares: Common stock, par value $0.01 per share, of Counterparty (Ticker:
PLT)
Exchange: New York Stock Exchange
Related Exchange(s): All Exchanges in the United States on which the
equity-linked securities of Counterparty or options or futures or other
derivatives relating to the Shares are traded.
Prepayment\Variable
Obligation: Applicable
Prepayment Amount: For each Transaction, as set forth in the related
Supplemental Confirmation.
Prepayment Date: For each Transaction, as set forth in the related
Supplemental Confirmation.
Valuation:
VWAP Price: For any Exchange Business Day, as determined by the Calculation
Agent based on the New York 10b-18 Volume Weighted Average Price per Share for
the regular trading session (including any extensions thereof) of the Exchange
on such Exchange Business Day (without regard to pre-open or after hours trading
outside of such regular trading session for such Exchange Business Day), as
published by Bloomberg at 4:15 p.m. New York time (or 15 minutes following the
end of any extension of the regular trading session) on such Exchange Business
Day, on Bloomberg page “PLT.N <Equity> AQR_SEC” (or any successor
thereto), or if such price is not so reported on such Exchange Business Day for
any reason or is, in the Calculation Agent’s reasonable discretion, erroneous,
such VWAP Price shall be as reasonably determined by the Calculation Agent. For
purposes of calculating the VWAP Price, the Calculation Agent will include only
those trades that are reported during the period of time during which
Counterparty could purchase its own shares under Rule 10b-18(b)(2) and are
effected pursuant to the conditions of Rule 10b-18(b)(3), each under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act“) (such trades, “Rule 10b-18 eligible
transactions“).
Forward Price: The average of the VWAP Prices for the Exchange Business Days
in the Calculation Period, subject to “Valuation Disruption” below.
Forward Price
Adjustment Amount: For each Transaction, as set forth in the related
Supplemental Confirmation.
Calculation Period: The period from and including the Calculation Period
Start Date to and including the Termination Date.
Calculation Period Start Date: For each Transaction, as set forth in the
related Supplemental Confirmation.
Termination Date: The Scheduled Termination Date; provided that
GS&Co. shall have the right to designate any Exchange Business Day on or
after the First Acceleration Date to be the Termination Date (the
“Accelerated Termination Date“) by delivering notice to
Counterparty of any such designation prior to 11:59 p.m. New York City time on
the Exchange Business Day immediately following the designated Accelerated
Termination Date.
Scheduled Termination Date: For each Transaction, as set forth in the related
Supplemental Confirmation, subject to postponement as provided in “Valuation
Disruption” below; provided, that in no event shall the Schedule
Termination Date be postponed to a date later than the Final Termination Date
set forth in the related Supplemental Confirmation, unless a longer postponement
is appropriate in light of market liquidity or, upon advice of outside counsel,
in light of regulatory considerations.
First Acceleration Date: For each Transaction, as set forth in the related
Supplemental Confirmation.
Valuation Disruption: The definition of “Market Disruption Event” in Section
6.3(a) of the Equity Definitions is hereby amended by deleting the words “at any
time during the one-hour period that ends at the relevant Valuation Time, Latest
Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case
may be” and inserting the words “at any time on any Scheduled Trading Day during
the Calculation Period or Settlement Valuation Period” after the word
“material,” in the third line thereof.
Section 6.3(d) of the Equity Definitions is hereby amended by deleting the
remainder of the provision following the term “Scheduled Closing Time” in the
fourth line thereof.
Notwithstanding anything to the contrary in the Equity Definitions, to the
extent that a Disrupted Day occurs (i) in the Calculation Period, the
Calculation Agent may, in its good faith and commercially reasonable discretion,
postpone the Scheduled Termination Date, or (ii) in the Settlement Valuation
Period, the Calculation Agent may extend the Settlement Valuation Period;
provided, that in no event shall the Scheduled Termination Date be
postponed to a date later than the Final Termination Date set forth in the
related Supplemental Confirmation, unless a longer postponement is appropriate
in light of market liquidity or, upon advice of outside counsel, in light of
regulatory considerations. If any such Disrupted Day is a Disrupted Day because
of a Market Disruption Event (or a deemed Market Disruption Event as provided
herein), the Calculation Agent shall reasonably determine whether (i) such
Disrupted Day is a Disrupted Day in full, in which case the VWAP Price for such
Disrupted Day shall not be included for purposes of determining the Forward
Price or the Settlement Price, as the case may be, or (ii) such Disrupted Day is
a Disrupted Day only in part, in which case the VWAP Price for such Disrupted
Day shall be determined by the Calculation Agent based on Rule 10b-18 eligible
transactions in the Shares on such Disrupted Day effected before the relevant
Market Disruption Event occurred and/or after the relevant Market Disruption
Event ended, and the weighting of the VWAP Price for the relevant Exchange
Business Days during the Calculation Period or the Settlement Valuation Period
(as defined in Annex A to this Master Agreement), as the case may be, shall be
adjusted in a commercially reasonable manner by the Calculation Agent for
purposes of determining the Forward Price or the Settlement Price, as the case
may be, with such adjustments based on, among other factors, the duration of any
Market Disruption Event and the volume, historical trading patterns and price of
the Shares. Any Scheduled Trading Day on which the Exchange is scheduled to
close prior to its normal close of trading shall be deemed to be a Disrupted Day
in full.
If a Disrupted Day occurs during the Calculation Period or the Settlement
Valuation Period, as the case may be, and each of the nine immediately following
Scheduled Trading Days is a Disrupted Day, then the Calculation Agent, in its
good faith and commercially reasonable discretion, may deem such ninth Scheduled
Trading Day to be an Exchange Business Day that is not a Disrupted Day and
determine the VWAP Price for such ninth Scheduled Trading Day using its good
faith estimate of the value of the Shares on such ninth Scheduled Trading Day
based on the volume, historical trading patterns and price of the Shares and
such other factors as it deems appropriate.
Settlement Terms:
Settlement Procedures: If the Number of Shares to be Delivered is positive,
Physical Settlement shall be applicable; provided that GS&Co. does
not, and shall not, make the agreement or the representations set forth in
Section 9.11 of the Equity Definitions related to the restrictions imposed by
applicable securities laws with respect to any Shares delivered by GS&Co. to
Counterparty under any Transaction. If the Number of Shares to be Delivered is
negative, then the Counterparty Settlement Provisions in Annex A shall apply.
Number of Shares
to be Delivered: A number of Shares equal to (x)(a) the Prepayment Amount
divided by (b)(i) the Forward Price minus (ii) the Forward
Price Adjustment Amount minus (y) the number of Initial Shares.
Excess Dividend Amount: For the avoidance of doubt, all references to the
Excess Dividend Amount shall be deleted from Section 9.2(a)(iii) of the Equity
Definitions.
Settlement Date: If the Number of Shares to be Delivered is positive, the
date that is one Settlement Cycle immediately following the Termination Date.
Settlement Currency: USD
Initial Share Delivery: GS&Co. shall deliver a number of Shares equal to
the Initial Shares to Counterparty on the Initial Share Delivery Date in
accordance with Section 9.4 of the Equity Definitions, with the Initial Share
Delivery Date deemed to be a “Settlement Date” for purposes of such Section 9.4.
Initial Share Delivery Date: For each Transaction, as set forth in the
related Supplemental Confirmation.
Initial Shares: For each Transaction, as set forth in the related
Supplemental Confirmation.
Share Adjustments:
Potential Adjustment Event: Notwithstanding anything to the contrary in
Section 11.2(e) of the Equity Definitions, an Extraordinary Dividend shall not
constitute a Potential Adjustment Event. For the avoidance of doubt, the
declaration and payment by the Counterparty of any Ordinary Dividend Amount
shall not constitute a Potential Adjustment Event under this Master
Confirmation. The parties agree that open market Share repurchases at prevailing
market prices, repurchases of Shares by Counterparty pursuant to the
Counterparty’s stock repurchase plans or accelerated share repurchases including
any Transactions, forward contracts or similar transactions on customary terms
(including without limitation any discount to average VWAP prices) shall not be
considered Potential Adjustment Events. For the avoidance of doubt, the parties
acknowledge that (i) repurchases of Shares by Counterparty that constitute a
Tender Offer will give rise to the consequences described opposite “Consequences
of Tender Offers” below and (ii) if any repurchases of Shares by Counterparty
give rise to a postponement of the Scheduled Termination Date for any
Transaction pursuant to “Valuation Disruption” above, the consequences described
in the immediately succeeding paragraph shall apply.
It shall constitute an additional Potential Adjustment Event if the Scheduled
Termination Date for any Transaction is postponed pursuant to “Valuation
Disruption” above or if any postponement of the Scheduled Termination Date is
limited by the proviso to the definition of “Schedule Termination Date” above or
the proviso in the third paragraph of “Valuation Disruption” above, in which
case the Calculation Agent may, in its commercially reasonable discretion,
adjust any relevant terms of any such Transaction as necessary to preserve as
nearly as practicable the fair value of such Transaction (from GS&Co.’s side
of the market) prior to such postponement or limitation.
Extraordinary Dividend: For any calendar quarter, any dividend or
distribution on the Shares with an ex-dividend date occurring during such
calendar quarter (other than any dividend or distribution of the type described
in Section 11.2(e)(i) or Section 11.2(e)(ii)(A) of the Equity Definitions) (a
“Dividend“) the amount or value of which (as reasonably
determined by the Calculation Agent), when aggregated with the amount or value
(as reasonably determined by the Calculation Agent) of any and all previous
Dividends with ex-dividend dates occurring in the same calendar quarter, exceeds
the Ordinary Dividend Amount.
Ordinary Dividend Amount: For each Transaction, as set forth in the related
Supplemental Confirmation
Method of Adjustment: Calculation Agent Adjustment
Early Ordinary Dividend
Payment: If an ex-dividend date for any Dividend that is not an Extraordinary
Dividend occurs during any calendar quarter occurring (in whole or in part)
during the Relevant Period (as defined below) and is prior to the Scheduled
Ex-Dividend Date for such calendar quarter, the Calculation Agent shall make
such adjustment to the exercise, settlement, payment or any other terms of the
relevant Transaction as the Calculation Agent determines in good faith and in a
commercially reasonable manner is appropriate to account for the economic effect
on the Transaction of such event (provided that no such adjustment
shall be made pursuant to this adjustment provision to account solely for
changes in volatility, stock loan rate or liquidity relevant to the Shares or
the Transaction).
Scheduled Ex-Dividend
Dates: For each Transaction for each calendar quarter, as set forth in the
related Supplemental Confirmation
Extraordinary Events:
Consequences of
Merger Events:
(a) Share-for-Share: Modified Calculation Agent Adjustment
(b) Share-for-Other: Cancellation and Payment
(c) Share-for-Combined: Component Adjustment
Tender Offer: Applicable; provided that (i) Section 12.1(d) of the
Equity Definitions shall be amended by replacing “10%” in the third line thereof
with “20%” and (ii) Section 12.1(l) of the Equity Definitions shall be amended
(x) by deleting the parenthetical in the fifth line thereof, (y) by replacing
“that” in the fifth line thereof with “whether or not such announcement” and (z)
by adding immediately after the words “Tender Offer” in the fifth line thereof
“, and any publicly announced change or amendment to such an announcement
(including the announcement of an abandonment of such intention)” and (ii)
Sections 12.3(a) and 12.3(d) of the Equity Definitions shall each be amended by
replacing each occurrence of the words “Tender Offer Date” by “Announcement
Date.”
Consequences of
Tender Offers:
(a) Share-for-Share: Modified Calculation Agent Adjustment or Cancellation
and Payment, at the election of GS&Co.
(b) Share-for-Other: Modified Calculation Agent Adjustment or Cancellation
and Payment, at the election of GS&Co.
(a) Share-for-Combined: Modified Calculation Agent Adjustment or Cancellation
and Payment, at the election of GS&Co.
Nationalization,
Insolvency or Delisting: Cancellation and Payment; provided that in
addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it
shall also constitute a Delisting if the Exchange is located in the United
States and the Shares are not immediately re-listed, re-traded or re-quoted on
any of the New York Stock Exchange, the American Stock Exchange, The NASDAQ
Global Select Market or The NASDAQ Global Market (or their respective
successors); if the Shares are immediately re-listed, re-traded or re-quoted on
any such exchange or quotation system, such exchange or quotation system shall
be deemed to be the Exchange.
Additional Disruption Events:
Change in Law: Applicable; provided that Section 12.9(a)(ii) of the
Equity Definitions is hereby amended by (i) replacing the phrase “the
interpretation” in the third line thereof with the phrase “, or public
announcement of, the formal or informal interpretation”, (ii) by replacing the
word “Shares” where it appears in clause (X) thereof with the words “Hedge
Position” and (iii) by immediately following the word “Transaction” in clause
(X) thereof, adding the phrase “in the manner contemplated by the Hedging Party
on the Trade Date”; provided further that (i) any determination as to
whether (A) the adoption of or any change in any applicable law or regulation
(including, for the avoidance of doubt and without limitation, (x) any tax law
or (y) adoption or promulgation of new regulations authorized or mandated by
existing statute) or (B) the promulgation of or any change in the interpretation
by any court, tribunal or regulatory authority with competent jurisdiction of
any applicable law or regulation (including any action taken by a taxing
authority), in each case, constitutes a “Change in Law” shall be made without
regard to Section 739 of the Dodd-Frank Wall Street Reform and Consumer
Protection Act of 2010 or any similar legal certainty provision in any
legislation enacted, or rule or regulation promulgated, on or after the Trade
Date, and (ii) Section 12.9(a)(ii) of the Equity Definitions is hereby amended
by replacing the parenthetical beginning after the word “regulation” in the
second line thereof the words “(including, for the avoidance of doubt and
without limitation, (x) any tax law or (y) adoption or promulgation of new
regulations authorized or mandated by existing statute)”.
Failure to Deliver: Applicable
Insolvency Filing: Applicable
Loss of Stock Borrow: Applicable
Maximum Stock Loan Rate: *** Certain information in this Agreement has been
omitted and filed separately with the Securities and Exchange Commission.
Confidential treatment has been requested with respect to the omitted portions.
Increased Cost of Stock Borrow: Applicable
Initial Stock Loan Rate: 50 basis points per annum
Determining Party: GS&Co. for all events
Hedging Party: GS&Co. for all events
Additional Termination Event(s): Subject to Sections 14 and 15 of this Master
Confirmation, notwithstanding anything to the contrary in the Equity
Definitions, if, as a result of an Extraordinary Event, any Transaction would be
cancelled or terminated (whether in whole or in part) pursuant to Article 12 of
the Equity Definitions, an Additional Termination Event (with such terminated
Transaction(s) (or portions thereof) being the Affected Transaction(s) and
Counterparty being the sole Affected Party) shall be deemed to occur, and, in
lieu of Sections 12.7, 12.8 and 12.9 of the Equity Definitions, Section 6 of the
Agreement shall apply to such Affected Transaction(s).
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The declaration by the Issuer of any Extraordinary Dividend, the ex-dividend |
Relevant Dividend Period: The period from and including the Calculation
Period Start Date to and including the Relevant Dividend Period End Date.
Relevant Dividend Period
End Date: If the Number of Shares to be Delivered is negative, the last day
of the Settlement Valuation Period; otherwise, the Termination Date.
Non-Reliance/Agreements and
Acknowledgements Regarding
Hedging Activities/Additional
Acknowledgements: Applicable
Transfer: Notwithstanding anything to the contrary in the Agreement,
GS&Co. may assign, transfer and set over all rights, title and interest,
powers, privileges and remedies of GS&Co. under any Transaction, in whole or
in part, to an affiliate of GS&Co. whose obligations are guaranteed by The
Goldman Sachs Group, Inc. without the consent of Counterparty, provided that
such guarantee is full and unconditional, in a form customarily used by The
Goldman Sachs Group, Inc., and Counterparty receives prior notice of such
assignment and a copy of such guarantee.
GS&Co. Payment Instructions: *** Certain information in this Agreement
has been omitted and filed separately with the Securities and Exchange
Commission. Confidential treatment has been requested with respect to the
omitted portions.
Counterparty’s Contact Details
for Purpose of Giving Notice: Plantronics, Inc
345 Encinal Street
Santa Cruz, CA 95060
Attention: Barbara V. Scherer
Sr. VP Finance and Administration & CFO
Telephone: +1-831-458-4434
Facsimile: +1-831-426-2965
Email: barbara.scherer@plantronics.com
With a copy to:
Attention: Richard R. Pickard
VP Legal, General Counsel & Secretary
Telephone: +1-831-458-7847
Facsimile: +1-831-426-2965
Email: rich.pickard@plantronics.com
GS&Co.’s Contact Details for
Purpose of Giving Notice: Goldman, Sachs & Co.
200 West Street
New York, NY 10282-2198
Attention: Serge Marquie, Equity Capital Markets
Telephone: 212-902-9779
Facsimile: 917-977-4253
Email: serge.marquie@gs.com
With a copy to:
Attention: Michael Voris, Equity Capital Markets
Equity Capital Markets
Telephone: +1-212-902-4895
Facsimile: +1-212-291-5027
Email: michael.voris@gs.com
And email notification to the following address:
Eq-derivs-notifications@am.ibd.gs.com
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2. |
Calculation Agent. GS&Co. All determinations made by the Calculation |
3.Additional Mutual Representations, Warranties and Covenants of Each
Party. In addition to the representations, warranties and covenants in the
Agreement, each party represents, warrants and covenants to the other party
that:
(a)Eligible Contract Participant. It is an “eligible contract
participant”, as defined in the U.S. Commodity Exchange Act (as amended), and is
entering into each Transaction hereunder as principal (and not as agent or in
any other capacity, fiduciary or otherwise) and not for the benefit of any third
party.
(b)Accredited Investor. Each party acknowledges that the offer and
sale of each Transaction to it is intended to be exempt from registration under
the Securities Act of 1933, as amended (the “Securities Act“),
by virtue of Section 4(2) thereof. Accordingly, each party represents and
warrants to the other that (i) it has the financial ability to bear the economic
risk of its investment in each Transaction and is able to bear a total loss of
its investment, (ii) it is an “accredited investor” as that term is defined
under Regulation D under the Securities Act and (iii) the disposition of each
Transaction is restricted under this Master Confirmation, the Securities Act and
state securities laws.
4.Additional Representations, Warranties and Covenants of
Counterparty. In addition to the representations, warranties and covenants
in the Agreement, Counterparty represents, warrants and covenants to GS&Co.
that:
(a) The purchase or writing of each Transaction and the transactions
contemplated hereby will not violate Rule 13e-1 or Rule 13e-4 under the Exchange
Act.
(b) It is not entering into any Transaction (i) on the basis of, and is not
aware of, any material non-public information with respect to the Shares (ii) in
anticipation of, in connection with, or to facilitate, a distribution of its
securities, a self tender offer or a third-party tender offer or (iii) to create
actual or apparent trading activity in the Shares (or any security convertible
into or exchangeable for the Shares) or to raise or depress the price of the
Shares (or any security convertible into or exchangeable for the Shares) for the
purpose of inducing the purchase or sale of such security by others.
(c) Each Transaction is being entered into pursuant to a publicly disclosed
Share buy-back program and its Board of Directors has approved the use of the
Transactions to effect the Share buy-back program.
(d) Without limiting the generality of Section 13.1 of the Equity
Definitions, Counterparty acknowledges that neither GS&Co. nor any of its
affiliates is making any representations or warranties or taking any position or
expressing any view with respect to the treatment of any Transaction under any
accounting standards including ASC Topic 260, Earnings Per Share, ASC Topic 815,
Derivatives and Hedging, or ASC Topic 480, Distinguishing Liabilities from
Equity and ASC 815-40, Derivatives and Hedging – Contracts in Entity’s Own
Equity.
(e) As of (i) the date hereof and (ii) the Trade Date for each Transaction
hereunder, Counterparty is in compliance with its reporting obligations under
the Exchange Act and its most recent Annual Report on Form 10-K, together with
all reports subsequently filed by it pursuant to the Exchange Act, taken
together and as amended and supplemented to the date of this representation, do
not, as of their respective filing dates, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(f) Counterparty shall report each Transaction as required under the Exchange
Act and the rules and regulations thereunder.
(g) The Shares are not, and Counterparty will not cause the Shares to be,
subject to a “restricted period” (as defined in Regulation M promulgated under
the Exchange Act) (other than activities excepted from Regulation M by reason of
Rules 101(b) or (c) or 102(b), (c) or (d) under the Exchange Act) at any time
during any Regulation M Period (as defined below) for any Transaction unless
Counterparty has provided written notice to GS&Co. of such restricted period
not later than the Scheduled Trading Day immediately preceding the first day of
such “restricted period”; Counterparty acknowledges that any such notice may
cause a Disrupted Day to occur pursuant to Section 5 below; accordingly,
Counterparty acknowledges that its delivery of such notice must comply with the
standards set forth in Section 6 below; “Regulation M Period”
means, for any Transaction, (i) the Relevant Period (as defined below) and (ii)
the Settlement Valuation Period, if any, for such Transaction.
“Relevant Period” means, for any Transaction, the period
commencing on the Calculation Period Start Date for such Transaction and ending
on the earlier of (i) the Scheduled Termination Date and (ii) the last
Additional Relevant Day (as specified in the related Supplemental Confirmation)
for such Transaction, or such earlier day as elected by GS&Co. and
communicated to Counterparty on such day (or, if later, the First Acceleration
Date without regard to any acceleration thereof pursuant to “Special Provisions
for Acquisition Transaction Announcements” below).
(h) As of the Trade Date, the Prepayment Date, the Initial Share Delivery
Date and the Settlement Date for each Transaction, Counterparty is not
“insolvent” (as such term is defined under Section 101(32) of the U.S.
Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”))
and Counterparty would be able to purchase a number of Shares with a value equal
to the Prepayment Amount in compliance with the laws of the jurisdiction of
Counterparty’s incorporation.
(i) Counterparty is not and, after giving effect to any Transaction, will not
be, required to register as an “investment company” as such term is defined in
the Investment Company Act of 1940, as amended.
(j) Counterparty has not and will not enter into agreements similar to the
Transactions described herein where any initial hedge period, calculation
period, relevant period or settlement valuation period (each however defined) in
such other transaction will overlap at any time (including as a result of
extensions in such initial hedge period, calculation period, relevant period or
settlement valuation period as provided in the relevant agreements) with any
Relevant Period or, if applicable, any Settlement Valuation Period under this
Master Confirmation. In the event that the initial hedge period, relevant
period, calculation period or settlement valuation period in any other similar
transaction overlaps with any Relevant Period or, if applicable, Settlement
Valuation Period under this Master Confirmation as a result of any postponement
of the Scheduled Termination Date or extension of the Settlement Valuation
Period pursuant to “Valuation Disruption” above, Counterparty shall promptly
amend such transaction to avoid any such overlap.
|
5. |
Regulatory Disruption. In the event that GS&Co. concludes, in its |
6.10b5-1 Plan. Counterparty represents, warrants and covenants to
GS&Co. that:
(a) Counterparty is entering into this Master Confirmation and each
Transaction hereunder in good faith and not as part of a plan or scheme to evade
the prohibitions of Rule 10b5-1 under the Exchange Act (“Rule
10b5-1“) or any other antifraud or anti-manipulation provisions of the
federal or applicable state securities laws and that it has not entered into or
altered and will not enter into or alter any corresponding or hedging
transaction or position with respect to the Shares. Counterparty acknowledges
that it is the intent of the parties that each Transaction entered into under
this Master Confirmation comply with the requirements of paragraphs (c)(1)(i)(A)
and (B) of Rule 10b5-1 and each Transaction entered into under this Master
Confirmation shall be interpreted to comply with the requirements of Rule
10b5-1(c).
(b) Counterparty will not seek to control or influence GS&Co.’s decision
to make any “purchases or sales” (within the meaning of Rule
10b5-1(c)(1)(i)(B)(3)) under any Transaction entered into under this Master
Confirmation, including, without limitation, GS&Co.’s decision to enter into
any hedging transactions. Counterparty represents and warrants that it has
consulted with its own advisors as to the legal aspects of its adoption and
implementation of this Master Confirmation and each Supplemental Confirmation
under Rule 10b5-1.
(c) Counterparty acknowledges and agrees that any amendment, modification,
waiver or termination of this Master Confirmation or the relevant Supplemental
Confirmation must be effected in accordance with the requirements for the
amendment or termination of a “plan” as defined in Rule 10b5-1(c). Without
limiting the generality of the foregoing, any such amendment, modification,
waiver or termination shall be made in good faith and not as part of a plan or
scheme to evade the prohibitions of Rule 10b-5, and no such amendment,
modification or waiver shall be made at any time at which Counterparty or any
officer, director, manager or similar person of Counterparty is aware of any
material non-public information regarding Counterparty or the Shares.
|
7. |
Counterparty Purchases. Counterparty (or any “affiliated purchaser” as |
8.Special Provisions for Merger Transactions. Notwithstanding anything
to the contrary herein or in the Equity Definitions:
(a) Counterparty agrees that it:
(i)will not during the period commencing on the Trade Date through the end of
the Relevant Period or, if applicable, the Settlement Valuation Period for any
Transaction, make, or permit to be made, any public announcement (as defined in
Rule 165(f) under the Securities Act) of any Merger Transaction or potential
Merger Transaction unless such public announcement is made prior to the opening
or after the close of the regular trading session on the Exchange for the
Shares;
(ii)shall promptly (but in any event prior to the next opening of the regular
trading session on the Exchange) notify GS&Co. following any such
announcement that such announcement has been made; and
(iii)shall promptly (but in any event prior to the next opening of the
regular trading session on the Exchange) provide GS&Co. with written notice
specifying (i) Counterparty’s average daily Rule 10b-18 Purchases (as defined in
Rule 10b-18) during the three full calendar months immediately preceding the
announcement date that were not effected through GS&Co. or its affiliates
and (ii) the number of Shares purchased pursuant to the proviso in Rule
10b-18(b)(4) under the Exchange Act for the three full calendar months preceding
the announcement date. Such written notice shall be deemed to be a certification
by Counterparty to GS&Co. that such information is true and correct. In
addition, Counterparty shall promptly notify GS&Co. of the earlier to occur
of the completion of such transaction and the completion of the vote by target
shareholders to approve or disapprove such transaction. Counterparty
acknowledges that any such notice may cause the terms of any Transaction to be
adjusted or such Transaction to be terminated pursuant to the provisions set
forth in this Master Confirmation; accordingly, Counterparty acknowledges that
its delivery of such notice must comply with the standards set forth in Section
6 above.
(b) GS&Co. in its sole discretion may (i) make adjustments to the terms
of any Transaction, including, without limitation, the Scheduled Termination
Date or the Forward Price Adjustment Amount, and/or suspend the Calculation
Period and/or any Settlement Valuation Period (without duplication to any
adjustments made pursuant to Modified Calculation Agent Adjustment) or (ii)
treat the occurrence of such public announcement as an Additional Termination
Event with Counterparty as the sole Affected Party and the Transactions
hereunder as the Affected Transactions and with the amount under Section 6(e) of
the Agreement determined taking into account the fact that the Calculation
Period or Settlement Valuation Period, as the case may be, had fewer Scheduled
Trading Days than originally anticipated.
“Merger Transaction” means any merger, acquisition or
similar transaction involving a recapitalization as contemplated by Rule
10b-18(a)(13)(iv) under the Exchange Act.
|
9. |
Special Provisions for Acquisition Transaction Announcements. (a) If |
(b) “Acquisition Transaction Announcement” means (i) the
announcement of an Acquisition Transaction, (ii) an announcement that
Counterparty or any of its subsidiaries has entered into an agreement, a letter
of intent or an understanding designed to result in an Acquisition Transaction,
(iii) the announcement of the intention to solicit or enter into, or to explore
strategic alternatives or other similar undertaking that may include, an
Acquisition Transaction or (iv) any other announcement that in the reasonable
judgment of the Calculation Agent is reasonably likely to result in an
Acquisition Transaction. For the avoidance of doubt, announcements as used in
the definition of Acquisition Transaction Announcement refer to any public
announcement whether made by the Issuer or a third party.
(c) “Acquisition Transaction” means (i) any Merger Event
(for purposes of this definition the definition of Merger Event shall be read
with the references therein to “100%” being replaced by “19.9%” and to “50%” by
“75%” and without reference to the clause beginning immediately following the
definition of Reverse Merger therein to the end of such definition), Tender
Offer or Merger Transaction or any other transaction involving the merger of
Counterparty with or into any third party, (ii) the sale or transfer of all or
substantially all of the assets of Counterparty, (iii) a recapitalization,
reclassification, binding share exchange or other similar transaction, (iv) any
acquisition, lease, exchange, transfer, disposition (including by way of
spin-off or distribution) of assets (including any capital stock or other
ownership interests in subsidiaries) or other similar event by Counterparty or
any of its subsidiaries where the aggregate consideration transferable or
receivable by or to Counterparty or its subsidiaries exceeds 19.9% of the market
capitalization of Counterparty and (v) any transaction in which Counterparty or
its board of directors has a legal obligation to make a recommendation to its
shareholders in respect of such transaction (whether pursuant to Rule 14e-2
under the Exchange Act or otherwise).
|
10. |
Acknowledgments. (a) The parties hereto intend for: |
(i)each Transaction to be a “securities contract” as defined in Section
741(7) of the Bankruptcy Code, a “swap agreement” as defined in Section 101(53B)
of the Bankruptcy Code and a “forward contract” as defined in Section 101(25) of
the Bankruptcy Code, and the parties hereto to be entitled to the protections
afforded by, among other Sections, Sections 362(b)(6), 362(b)(17), 362(b)(27),
362(o), 546(e), 546(g), 546(j), 555, 556, 560 and 561 of the Bankruptcy Code;
(ii)the Agreement to be a “master netting agreement” as defined in Section
101(38A) of the Bankruptcy Code;
(iii)a party’s right to liquidate, terminate or accelerate any Transaction,
net out or offset termination values or payment amounts, and to exercise any
other remedies upon the occurrence of any Event of Default or Termination Event
under the Agreement with respect to the other party or any Extraordinary Event
that results in the termination or cancellation of any Transaction to constitute
a “contractual right” (as defined in the Bankruptcy Code); and
(iv)all payments for, under or in connection with each Transaction, all
payments for the Shares (including, for the avoidance of doubt, payment of the
Prepayment Amount) and the transfer of such Shares to constitute “settlement
payments” and “transfers” (as defined in the Bankruptcy Code).
(b) Counterparty acknowledges that:
(i) during the term of any Transaction, GS&Co. and its affiliates may buy
or sell Shares or other securities or buy or sell options or futures contracts
or enter into swaps or other derivative securities in order to establish, adjust
or unwind its hedge position with respect to such Transaction;
(ii) GS&Co. and its affiliates may also be active in the market for the
Shares and derivatives linked to the Shares other than in connection with
hedging activities in relation to any Transaction, including acting as agent or
as principal and for its own account or on behalf of customers;
(iii) GS&Co. shall make its own determination as to whether, when or in
what manner any hedging or market activities in Counterparty’s securities shall
be conducted and shall do so in a manner that it deems appropriate to hedge its
price and market risk with respect to the Forward Price and the VWAP Price;
(iv) any market activities of GS&Co. and its affiliates with respect to
the Shares may affect the market price and volatility of the Shares, as well as
the Forward Price and VWAP Price, each in a manner that may be adverse to
Counterparty; and
(v) each Transaction is a derivatives transaction in which it has granted
GS&Co. an option; GS&Co. may purchase shares for its own account at an
average price that may be greater than, or less than, the price paid by
Counterparty under the terms of the related Transaction.
|
11. |
No Collateral. The parties hereto acknowledge that no Transaction |
12.Set-off. (a) The parties agree to amend Section 6 of the Agreement
by adding a new Section 6(f) thereto as follows:
“(f) Upon the occurrence of an Event of Default or Termination Event with
respect to a party who is the Defaulting Party or the Affected Party (“X”), the
other party (“Y”) will have the right (but not be obliged) without prior notice
to X or any other person to set-off or apply any obligation of X owed to Y (or
any Affiliate of Y) (whether or not matured or contingent and whether or not
arising under the Agreement, and regardless of the currency, place of payment or
booking office of the obligation) against any obligation of Y (or any Affiliate
of Y) owed to X (whether or not matured or contingent and whether or not arising
under the Agreement, and regardless of the currency, place of payment or booking
office of the obligation). Y will give notice to the other party of any set-off
effected under this Section 6(f).
Amounts (or the relevant portion of such amounts) subject to set-off may be
converted by Y into the Termination Currency at the rate of exchange at which
such party would be able, acting in a reasonable manner and in good faith, to
purchase the relevant amount of such currency. If any obligation is
unascertained, Y may in good faith estimate that obligation and set-off in
respect of the estimate, subject to the relevant party accounting to the other
when the obligation is ascertained. Nothing in this Section 6(f) shall be
effective to create a charge or other security interest. This Section 6(f) shall
be without prejudice and in addition to any right of set-off, combination of
accounts, lien or other right to which any party is at any time otherwise
entitled (whether by operation of law, contract or otherwise).”
(b) Notwithstanding anything to the contrary in the foregoing, GS&Co.
agrees not to set off or net amounts due from Counterparty with respect to any
Transaction against amounts due from GS&Co. to Counterparty with respect to
contracts or instruments that are not Equity Contracts. “Equity
Contract” means any transaction or instrument that does not convey to
GS&Co. rights, or the ability to assert claims, that are senior to the
rights and claims of common stockholders in the event of Counterparty’s
bankruptcy.
13.Delivery of Shares. Notwithstanding anything to the contrary
herein, GS&Co. may, by prior notice to Counterparty, satisfy its obligation
to deliver any Shares or other securities on any date due (an “Original
Delivery Date“) by making separate deliveries of Shares or such
securities, as the case may be, at more than one time on or prior to such
Original Delivery Date, so long as the aggregate number of Shares and other
securities so delivered on or prior to such Original Delivery Date is equal to
the number required to be delivered on such Original Delivery Date;
provided, that in no event shall any delay in delivery be longer than
thirty (30) Scheduled Trading Days later than the Original Delivery Date.
14.Early Termination. In the event that an Early Termination Date
(whether as a result of an Event of Default or a Termination Event) occurs or is
designated with respect to any Transaction (except as a result of a Merger Event
in which the consideration or proceeds to be paid to holders of Shares consists
solely of cash), if either party would owe any amount to the other party
pursuant to Section 6(d)(ii) of the Agreement (any such amount, a
“Payment Amount“), then, in lieu of any payment of such Payment
Amount, Counterparty may, no later than the Early Termination Date or the date
on which such Transaction is terminated, elect to deliver or for GS&Co. to
deliver, as the case may be, to the other party a number of Shares (or, in the
case of a Merger Event, a number of units, each comprising the number or amount
of the securities or property that a hypothetical holder of one Share would
receive in such Merger Event (each such unit, an “Alternative Delivery
Unit” and, the securities or property comprising such unit,
“Alternative Delivery Property“)) with a value equal to the
Payment Amount, as reasonably determined by the Calculation Agent (and the
parties agree that, in making such determination of value, the Calculation Agent
may take into account a number of factors, including the market price of the
Shares or Alternative Delivery Property on the date of early termination and, if
such delivery is made by GS&Co., the prices at which GS&Co. purchases
Shares or Alternative Delivery Property to fulfill its delivery obligations
under this Section 14); provided that in determining the composition of
any Alternative Delivery Unit, if the relevant Merger Event involves a choice of
consideration to be received by holders, such holder shall be deemed to have
elected to receive the maximum possible amount of cash. If such delivery is made
by Counterparty, paragraphs 2 through 7 of Annex A shall apply as if such
delivery were a settlement of the Transaction to which Net Share Settlement
applied, the Cash Settlement Payment Date were the Early Termination Date and
the Forward Cash Settlement Amount were zero (0) minus the Payment
Amount owed by Counterparty.
15.Calculations and Payment Date upon Early Termination. The parties
acknowledge and agree that in calculating Loss pursuant to Section 6 of the
Agreement GS&Co. may (but need not) determine losses without reference to
actual losses incurred but based on expected losses assuming a commercially
reasonable (including without limitation with regard to reasonable legal and
regulatory guidelines) risk bid were used to determine loss to avoid awaiting
the delay associated with closing out any hedge or related trading position in a
commercially reasonable manner prior to or sooner following the designation of
an Early Termination Date. Notwithstanding anything to the contrary in Section
6(d)(ii) of the Agreement, all amounts calculated as being due in respect of an
Early Termination Date under Section 6(e) of the Agreement will be payable on
the day that notice of the amount payable is effective; provided that if
Counterparty elects to receive Shares or Alternative Delivery Property in
accordance with Section 14, such Shares or Alternative Delivery Property shall
be delivered on a date selected by GS&Co as promptly as practicable.
16.Automatic Termination Provisions. Notwithstanding anything to the
contrary in Section 6 of the Agreement, if a Termination Price is specified in
any Supplemental Confirmation, then an Additional Termination Event with
Counterparty as the sole Affected Party and the Transaction to which such
Supplemental Confirmation relates as the Affected Transaction will automatically
occur without any notice or action by GS&Co. or Counterparty if the price of
the Shares on the Exchange at any time falls below such Termination Price, and
the Exchange Business Day that the price of the Shares on the Exchange at any
time falls below the Termination Price will be the “Early Termination Date” for
purposes of the Agreement.
17.Delivery of Cash. For the avoidance of doubt, nothing in this
Master Confirmation shall be interpreted as requiring Counterparty to deliver
cash in respect of the settlement of the Transactions contemplated by this
Master Confirmation following payment by Counterparty of the relevant Prepayment
Amount and any relevant Counterparty Additional Payment Amount, except in
circumstances where the required cash settlement thereof is permitted for
classification of the contract as equity by ASC 815-40, Derivatives and
Hedging – Contracts in Entity’s Own Equity, as in effect on the relevant
Trade Date (including, without limitation, where Counterparty so elects to
deliver cash or fails timely to elect to deliver Shares or Alternative Delivery
Property in respect of the settlement of such Transactions).
18.Claim in Bankruptcy. GS&Co. acknowledges and agrees that this
Confirmation is not intended to convey to it rights with respect to the
Transaction that are senior to the claims of common stockholders in the event of
Counterparty’s bankruptcy.
19.General Obligations Law of New York. With respect to each
Transaction, (i) this Master Confirmation, together with the related
Supplemental Confirmation, is a “qualified financial contract”, as such term is
defined in Section 5-701(b)(2) of the General Obligations Law of New York (the
“General Obligations Law“); and (ii) this Master Confirmation,
together with the related Supplemental Confirmation, constitutes a prior
“written contract” as set forth in Section 5-701(b)(1)(b) of the General
Obligations Law, and each party hereto intends and agrees to be bound by this
Master Confirmation and the related Supplemental Confirmation.
20.Governing Law. The Agreement, this Master Confirmation, each
Supplemental Confirmation and all matters arising in connection with the
Agreement, this Master Confirmation and each Supplemental Confirmation shall be
governed by, and construed and enforced in accordance with, the laws of the
State of New York (without reference to its choice of laws doctrine other than
Title 14 of Article 5 of the New York General Obligations Law).
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21. |
Offices. |
(a) The Office of GS&Co. for each Transaction is: 200 West Street, New
York, NY 10282-2198.
(b) The Office of Counterparty for each Transaction is: 345 Encinal Street,
Santa Cruz, California 95060.
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22. |
Arbitration. The Agreement, this Master |
(a) All parties to this Master Confirmation are
giving up the right to sue each other in court, including the right to a trial
by jury, except as provided by the rules of the arbitration forum in which a
claim is filed.
(b) Arbitration awards are generally final and
binding; a party’s ability to have a court reverse or modify an arbitration
award is very limited.
(c) The ability of the parties to obtain documents,
witness statements and other discovery is generally more limited in arbitration
than in court proceedings.
(d) The arbitrators do not have to explain the
reason(s) for their award.
(e) The panel of arbitrators will typically include
a minority of arbitrators who were or are affiliated with the securities
industry, unless Counterparty is a member of the organization sponsoring the
arbitration facility, in which case all arbitrators may be affiliated with the
securities industry.
(f) The rules of some arbitration forums may impose
time limits for bringing a claim in arbitration. In some cases, a claim that is
ineligible for arbitration may be brought in court.
(g) The rules of the arbitration forum in which the
claim is filed, and any amendments thereto, shall be incorporated into this
Master Confirmation.
Counterparty agrees that any and all controversies that may arise
between Counterparty and GS&Co., including, but not limited to, those
arising out of or relating to the Agreement or any Transaction hereunder, shall
be determined by arbitration conducted before the FINRA Dispute Resolution
(“FINRA-DR”), or, if the FINRA-DR declines to hear the matter, before the
American Arbitration Association, in accordance with their arbitration rules
then in force. The award of the arbitrator shall be final, and judgment upon the
award rendered may be entered in any court, state or federal, having
jurisdiction.
No person shall bring a putative or certified class action to
arbitration, nor seek to enforce any pre-dispute arbitration agreement against
any person who has initiated in court a putative class action or who is a member
of a putative class who has not opted out of the class with respect to any
claims encompassed by the putative class action until: (i) the class
certification is denied; (ii) the class is decertified; or (iii) Counterparty is
excluded from the class by the court.
Such forbearance to enforce an agreement to arbitrate shall not
constitute a waiver of any rights under this Master Confirmation except to the
extent stated herein.
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23. |
Counterparts. This Master Confirmation may be executed in any number |
Counterparty hereby agrees (a) to check this Master Confirmation carefully
and immediately upon receipt so that errors or discrepancies can be promptly
identified and rectified and (b) to confirm that the foregoing (in the exact
form provided by GS&Co.) correctly sets forth the terms of the agreement
between GS&Co. and Counterparty with respect to any particular Transaction
to which this Master Confirmation relates, by manually signing this Master
Confirmation or this page hereof as evidence of agreement to such terms and
providing the other information requested herein and immediately returning an
executed copy to Equity Derivatives Documentation Department, Facsimile No.
212-428-1980/83.
Yours faithfully,
GOLDMAN, SACHS & CO.
By: ________________________________
Authorized Signatory
Agreed and Accepted By:
PLANTRONICS, INC.
By: ________________________________
Name:
Title:
SCHEDULE A
SUPPLEMENTAL CONFIRMATION
|
To: |
Plantronics, Inc. 345 Encinal Street Santa Cruz, California 95060 |
|
From: |
Goldman, Sachs & Co. |
|
Subject: |
Accelerated Stock Buyback |
|
Ref. No: |
[Insert Reference No.] |
|
Date: |
[Insert Date] |
The purpose of this Supplemental Confirmation is to confirm the terms and
conditions of the Transaction entered into between Goldman, Sachs & Co.
(“GS&Co.“) and Plantronics, Inc.
(“Counterparty“) (together, the “Contracting
Parties“) on the Trade Date specified below. This Supplemental
Confirmation is a binding contract between GS&Co. and Counterparty as of the
relevant Trade Date for the Transaction referenced below.
1. This Supplemental Confirmation supplements, forms part of, and is subject
to the Master Confirmation dated as of [Insert Date] (the
“Master Confirmation“) between the Contracting Parties, as
amended and supplemented from time to time. All provisions contained in the
Master Confirmation govern this Supplemental Confirmation except as expressly
modified below.
2. The terms of the Transaction to which this Supplemental Confirmation
relates are as follows:
|
Trade Date: |
[ ] |
|
Forward Price Adjustment Amount: |
USD [ ] |
|
Calculation Period Start Date: |
[ ] |
|
Scheduled Termination Date: |
[ ] |
|
Final Termination Date: |
[ ] |
|
First Acceleration Date: |
[ ] |
|
Prepayment Amount: |
USD [ ] |
|
Prepayment Date: |
[ ] |
|
Initial Shares: |
[ ] Shares; provided that if, in connection with the Transaction, |
|
Initial Share Delivery Date: |
[ ] |
|
Ordinary Dividend Amount: |
For any calendar quarter, USD [ ] |
|
Scheduled Ex-Dividend Dates: |
[ ] |
|
Termination Price: |
USD [ ] per Share |
|
Additional Relevant Days: |
The [ ] Exchange Business Days immediately following the Calculation Period. |
3. [Notwithstanding Section 7 of the Master Confirmation, Counterparty may
purchase shares as provided in paragraph 3 of the Supplement Confirmation dated
as of the date hereof to the Master Confirmation dated as of [ ] (Ref. No. [ ])
between GS&Co. and Counterparty.] 1
4. [Notwithstanding Section 4(j) of the Master Confirmation, Counterparty may
enter into the transaction evidenced by the Master Confirmation dated as of [ ]
(Ref. No. [ ]) between GS&Co. and Counterparty, as supplemented by the
Supplemental Confirmation dated as of [ ].] 2
5. Counterparty represents and warrants to GS&Co. that neither it nor any
“affiliated purchaser” (as defined in Rule 10b-18 under the Exchange Act) has
made any purchases of blocks pursuant to the proviso in Rule 10b-18(b)(4) under
the Exchange Act during either (i) the four full calendar weeks immediately
preceding the Trade Date or (ii) during the calendar week in which the Trade
Date occurs.
6. This Supplemental Confirmation may be executed in any number of
counterparts, all of which shall constitute one and the same instrument, and any
party hereto may execute this Supplemental Confirmation by signing and
delivering one or more counterparts.
1 This provision only applies to the first Transaction under the
Master Confirmation.
2 This provision only applies to the first Transaction under the
Master Confirmation.
Counterparty hereby agrees (a) to check this Supplemental Confirmation
carefully and immediately upon receipt so that errors or discrepancies can be
promptly identified and rectified and (b) to confirm that the foregoing (in the
exact form provided by GS&Co.) correctly sets forth the terms of the
agreement between GS&Co. and Counterparty with respect to the Transaction to
which this Supplemental Confirmation relates, by manually signing this
Supplemental Confirmation or this page hereof as evidence of agreement to such
terms and providing the other information requested herein and immediately
returning an executed copy to Equity Derivatives Documentation Department,
facsimile No. 212-428-1980/83.
Yours sincerely,
GOLDMAN, SACHS & CO.
By: ________________________________
Authorized Signatory
Agreed and Accepted By:
PLANTRONICS, INC.
By: ________________________________
Name:
Title:
ANNEX A
COUNTERPARTY SETTLEMENT PROVISIONS
1. The following Counterparty Settlement Provisions shall apply to the extent
indicated under the Master Confirmation:
Settlement Currency: USD
Settlement Method Election: Applicable; provided that (i) Section
7.1 of the Equity Definitions is hereby amended by deleting the word
“Physical” in the sixth line thereof and replacing it with the words
“Net Share” and (ii) the Electing Party may make a settlement method
election only if the Electing Party represents and warrants to GS&Co. in
writing on the date it notifies GS&Co. of its election that, as of such
date, the Electing Party is not aware of any material non-public information
concerning Counterparty or the Shares and is electing the settlement method in
good faith and not as part of a plan or scheme to evade compliance with the
federal securities laws.
Electing Party: Counterparty
Settlement Method
Election Date: The earlier of (i) the Scheduled Termination Date and (ii) the
second Exchange Business Day immediately following the Accelerated Termination
Date (in which case the election under Section 7.1 of the Equity Definitions
shall be made no later than 10 minutes prior to the open of trading on the
Exchange on such second Exchange Business Day), as the case may be.
Default Settlement Method: Cash Settlement
Forward Cash Settlement
Amount: The Number of Shares to be Delivered multiplied by the
Settlement Price.
Settlement Price: The average of the VWAP Prices for the Exchange Business
Days in the Settlement Valuation Period, subject to Valuation Disruption as
specified in the Master Confirmation.
Settlement Valuation Period: A number of Scheduled Trading Days selected by
GS&Co. in its reasonable discretion, beginning on the Scheduled Trading Day
immediately following the earlier of (i) the Scheduled Termination Date or (ii)
the Exchange Business Day immediately following the Termination Date.
Cash Settlement: If Cash Settlement is applicable, then Buyer shall pay to
Seller the absolute value of the Forward Cash Settlement Amount on the Cash
Settlement Payment Date.
Cash Settlement
Payment Date: The date one Settlement Cycle following the last day of the
Settlement Valuation Period.
Net Share Settlement
Procedures: If Net Share Settlement is applicable, Net Share Settlement shall
be made in accordance with paragraphs 2 through 7 below.
2. Net Share Settlement shall be made by delivery on the Cash Settlement
Payment Date of a number of Shares satisfying the conditions set forth in
paragraph 3 below (the “Registered Settlement Shares“), or a
number of Shares not satisfying such conditions (the “Unregistered
Settlement Shares“), in either case with a value equal to the absolute
value of the Forward Cash Settlement Amount, with such Shares’ value based on
the value thereof to GS&Co. (which value shall, in the case of Unregistered
Settlement Shares, take into account a commercially reasonable illiquidity
discount), in each case as reasonably determined by the Calculation Agent.
3. Counterparty may only deliver Registered Settlement Shares pursuant to
paragraph 2 above if:
(a) a registration statement covering public resale of the Registered
Settlement Shares by GS&Co. (the “Registration Statement“)
shall have been filed with the Securities and Exchange Commission under the
Securities Act and been declared or otherwise become effective on or prior to
the date of delivery, and no stop order shall be in effect with respect to the
Registration Statement; a printed prospectus relating to the Registered
Settlement Shares (including any prospectus supplement thereto, the
“Prospectus“) shall have been delivered to GS&Co., in such
quantities as GS&Co. shall reasonably have requested, on or prior to the
date of delivery;
(b) the form and content of the Registration Statement and the Prospectus
(including, without limitation, any sections describing the plan of
distribution) shall be satisfactory to GS&Co.;
(c) as of or prior to the date of delivery, GS&Co. and its agents shall
have been afforded a reasonable opportunity to conduct a due diligence
investigation with respect to Counterparty customary in scope for underwritten
follow-on offerings of equity securities issued by companies of comparable size,
maturity and lines of business as the Counterparty and the results of such
investigation are satisfactory to GS&Co., in its discretion; and
(d) as of the date of delivery, an agreement (the “Underwriting
Agreement“) shall have been entered into with GS&Co. in connection
with the public resale of the Registered Settlement Shares by GS&Co.
substantially similar to underwriting agreements customary for underwritten
follow-on offerings of equity securities issued by companies of comparable size,
maturity and lines of business as the Counterparty, in form and substance
reasonably satisfactory to GS&Co., which Underwriting Agreement shall
include, without limitation, provisions substantially similar to those contained
in such underwriting agreements relating, without limitation, to the
indemnification of, and contribution in connection with the liability of,
GS&Co. and its affiliates and the provision of customary opinions,
accountants’ comfort letters and lawyers’ negative assurance letters.
4. If Counterparty delivers Unregistered Settlement Shares pursuant to
paragraph 2 above:
(a) all Unregistered Settlement Shares shall be delivered to GS&Co. (or
any affiliate of GS&Co. designated by GS&Co.) pursuant to the exemption
from the registration requirements of the Securities Act provided by Section
4(2) thereof;
(b) as of or prior to the date of delivery, GS&Co. and any potential
purchaser of any such shares from GS&Co. (or any affiliate of GS&Co.
designated by GS&Co.) identified by GS&Co. shall be afforded a
commercially reasonable opportunity to conduct a due diligence investigation
with respect to Counterparty customary in scope for private placements of equity
securities issued by companies of comparable size, maturity and lines of
business as the Counterparty (including, without limitation, the right to have
made available to them for inspection all financial and other records, pertinent
corporate documents and other information reasonably requested by them);
(c) as of the date of delivery, Counterparty shall enter into an agreement (a
“Private Placement Agreement“) with GS&Co. (or any
affiliate of GS&Co. designated by GS&Co.) in connection with the private
placement of such shares by Counterparty to GS&Co. (or any such affiliate)
and the private resale of such shares by GS&Co. (or any such affiliate),
substantially similar to private placement purchase agreements customary for
private placements of equity securities issued by companies of comparable size,
maturity and lines of business as the Counterparty, in form and substance
commercially reasonably satisfactory to GS&Co., which Private Placement
Agreement shall include, without limitation, provisions substantially similar to
those contained in such private placement purchase agreements relating, without
limitation, to the indemnification of, and contribution in connection with the
liability of, GS&Co. and its affiliates and the provision of customary
opinions, accountants’ comfort letters and lawyers’ negative assurance letters,
and shall provide for the payment by Counterparty of all customary fees and
expenses in connection with such resale, including all fees and expenses of
counsel for GS&Co., and shall contain appropriate representations,
warranties, covenants and agreements of Counterparty reasonably necessary or
advisable to establish and maintain the availability of an exemption from the
registration requirements of the Securities Act for such resales; and
(d) in connection with the private placement of such shares by Counterparty
to GS&Co. (or any such affiliate) and the private resale of such shares by
GS&Co. (or any such affiliate), Counterparty shall, if so requested by
GS&Co., prepare, in cooperation with GS&Co., a private placement
memorandum in form and substance reasonably satisfactory to GS&Co.
5. GS&Co., itself or through an affiliate (the “Selling
Agent“) or any underwriter(s), will sell all, or such lesser portion as
may be required hereunder, of the Registered Settlement Shares or Unregistered
Settlement Shares and any Makewhole Shares (as defined below) (together, the
“Settlement Shares“) delivered by Counterparty to GS&Co.
pursuant to paragraph 6 below commencing on the Cash Settlement Payment Date and
continuing until the date on which the aggregate Net Proceeds (as such term is
defined below) of such sales, as determined by GS&Co., is equal to the
absolute value of the Forward Cash Settlement Amount (such date, the
“Final Resale Date“). If the proceeds of any sale(s) made by
GS&Co., the Selling Agent or any underwriter(s), net of any fees and
commissions (including, without limitation, underwriting or placement fees)
customary for similar transactions under the circumstances at the time of the
offering, together with carrying charges and expenses incurred in connection
with the offer and sale of the Shares (including, but without limitation to, the
covering of any over-allotment or short position (syndicate or otherwise)) (the
“Net Proceeds“) exceed the absolute value of the Forward Cash
Settlement Amount, GS&Co. will refund, in USD, such excess to Counterparty
on the date that is three (3) Currency Business Days following the Final Resale
Date, and, if any portion of the Settlement Shares remains unsold, GS&Co.
shall return to Counterparty on that date such unsold Shares.
6. If the Calculation Agent determines that the Net Proceeds received from
the sale of the Registered Settlement Shares or Unregistered Settlement Shares
or any Makewhole Shares, if any, pursuant to this paragraph 6 are less than the
absolute value of the Forward Cash Settlement Amount (the amount in USD by which
the Net Proceeds are less than the absolute value of the Forward Cash Settlement
Amount being the “Shortfall” and the date on which such
determination is made, the “Deficiency Determination Date“),
Counterparty shall on the Exchange Business Day next succeeding the Deficiency
Determination Date (the “Makewhole Notice Date“) deliver to
GS&Co., through the Selling Agent, a notice of Counterparty’s election that
Counterparty shall either (i) pay an amount in cash equal to the Shortfall on
the day that is one (1) Currency Business Day after the Makewhole Notice Date,
or (ii) deliver additional Shares. If Counterparty elects to deliver to
GS&Co. additional Shares, then Counterparty shall deliver additional Shares
in compliance with the terms and conditions of paragraph 3 or paragraph 4 above,
as the case may be (the “Makewhole Shares“), on the first
Clearance System Business Day which is also an Exchange Business Day following
the Makewhole Notice Date in such number as the Calculation Agent reasonably
believes would have a market value on that Exchange Business Day equal to the
Shortfall. Such Makewhole Shares shall be sold by GS&Co. in accordance with
the provisions above; provided that if the sum of the Net Proceeds from
the sale of the originally delivered Shares and the Net Proceeds from the sale
of any Makewhole Shares is less than the absolute value of the Forward Cash
Settlement Amount then Counterparty shall, at its election, either make such
cash payment or deliver to GS&Co. further Makewhole Shares until such
Shortfall has been reduced to zero.
7. Notwithstanding the foregoing, in no event shall the aggregate number of
Settlement Shares and Makewhole Shares be greater than the Reserved Shares
minus the amount of any Shares actually delivered by Counterparty under
any other Transaction(s) under this Master Confirmation (the result of such
calculation, the “Capped Number“). Counterparty represents and
warrants (which shall be deemed to be repeated on each day that a Transaction is
outstanding) that the Capped Number is equal to or less than the number of
Shares determined according to the following formula:
A – B
Where A = the number of authorized but unissued shares of the Counterparty
that are not reserved for future issuance on the date of the determination of
the Capped Number; and
B = the maximum number of Shares required to be delivered to third parties if
Counterparty elected Net Share Settlement of all transactions in the Shares
(other than Transactions in the Shares under this Master Confirmation) with all
third parties that are then currently outstanding and unexercised.
“Reserved Shares” means initially, 2,727,025 Shares. The
Reserved Shares may be increased or decreased in a Supplemental Confirmation.
For the avoidance of doubt, if Counterparty validly elects to deliver Shares
in respect of any Transaction and the number so delivered is reduced as a result
of this paragraph 7, Counterparty will not be required to deliver cash or any
other property in lieu of such Shares not delivered.
SUPPLEMENTAL CONFIRMATION
|
To: |
Plantronics, Inc. 345 Encinal Street Santa Cruz, California 95060 |
|
From: |
Goldman, Sachs & Co. |
|
Subject: |
Accelerated Stock Buyback |
|
Ref. No: |
Sdb4164979031 |
|
Date: |
May 9, 2011 |
*** Certain information in this Agreement has been omitted and filed
separately with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
The purpose of this Supplemental Confirmation is to confirm the terms and
conditions of the Transaction entered into between Goldman, Sachs & Co.
(“GS&Co.“) and Plantronics, Inc.
(“Counterparty“) (together, the “Contracting
Parties“) on the Trade Date specified below. This Supplemental
Confirmation is a binding contract between GS&Co. and Counterparty as of the
relevant Trade Date for the Transaction referenced below.
1. This Supplemental Confirmation supplements, forms part of, and is subject
to the Master Confirmation dated as of May 9, 2011 (the “Master
Confirmation“) between the Contracting Parties, as amended and
supplemented from time to time. All provisions contained in the Master
Confirmation govern this Supplemental Confirmation except as expressly modified
below.
2. The terms of the Transaction to which this Supplemental Confirmation
relates are as follows:
|
Trade Date: |
May 9, 2011 |
|
Forward Price Adjustment Amount: |
*** Certain information in this Agreement has been omitted and filed |
|
Calculation Period Start Date: |
May 9, 2011 |
|
Scheduled Termination Date: |
January 9, 2012 |
|
Final Termination Date: |
April 9, 2012 |
|
First Acceleration Date: |
*** Certain information in this Agreement has been omitted and filed |
|
Prepayment Amount: |
USD 50,000,000 |
|
Prepayment Date: |
May 18, August 17, November 16 |
|
Initial Shares: |
954,459 Shares; provided that if, in connection with the |
|
Initial Share Delivery Date: |
May 23, 2011 |
|
Ordinary Dividend Amount: |
For any calendar quarter, USD 0.05 |
|
Scheduled Ex-Dividend Dates: |
May 18, 2017 |
|
Termination Price: |
*** Certain information in this Agreement has been omitted and filed |
|
Additional Relevant Days: |
The five (5) Exchange Business Days immediately following the Calculation |
3. Notwithstanding Section 7 of the Master Confirmation, Counterparty may
purchase shares as provided in paragraph 3 of the Supplement Confirmation dated
as of the date hereof to the Master Confirmation dated as of May 9, 2011 (Ref.
No. Sdb4164978460) between GS&Co. and Counterparty.
4. Notwithstanding Section 4(j) of the Master Confirmation, Counterparty may
enter into the transaction evidenced by the Master Confirmation dated as of May
9, 2011 (Ref. No. Sdb4164978460) between GS&Co. and Counterparty, as
supplemented by the Supplemental Confirmation dated as of May 9, 2011.
5. Counterparty represents and warrants to GS&Co. that neither it nor any
“affiliated purchaser” (as defined in Rule 10b-18 under the Exchange Act) has
made any purchases of blocks pursuant to the proviso in Rule 10b-18(b)(4) under
the Exchange Act during either (i) the four full calendar weeks immediately
preceding the Trade Date or (ii) during the calendar week in which the Trade
Date occurs.
6. This Supplemental Confirmation may be executed in any number of
counterparts, all of which shall constitute one and the same instrument, and any
party hereto may execute this Supplemental Confirmation by signing and
delivering one or more counterparts.
Counterparty hereby agrees (a) to check this Supplemental Confirmation
carefully and immediately upon receipt so that errors or discrepancies can be
promptly identified and rectified and (b) to confirm that the foregoing (in the
exact form provided by GS&Co.) correctly sets forth the terms of the
agreement between GS&Co. and Counterparty with respect to the Transaction to
which this Supplemental Confirmation relates, by manually signing this
Supplemental Confirmation or this page hereof as evidence of agreement to such
terms and providing the other information requested herein and immediately
returning an executed copy to Equity Derivatives Documentation Department,
facsimile No. 212-428-1980/83.
Yours sincerely,
GOLDMAN, SACHS & CO.
By: ________________________________
Authorized Signatory
Agreed and Accepted By:
PLANTRONICS, INC.
By: ________________________________
Name:
Title:
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