EXECUTION COPY
GOLDMAN SACHS & CO. 185 BROAD STREET NEW YORK, NEW YORK 10004
TEL: 212-902-1000
Opening Transaction
To: Techne Corporation
614 McKinley Place N.E.
Minneapolis. MN 55413
From: Goldman, Sachs & Co.
Subject: Accelerated Share Repurchase Transaction - VWAP Pricing
(Collared and Non-Collared)
Ref. No: EN50B4000000000
Date: March 1, 2005
This master confirmation ("Master Confirmation") dated as of March 1, 2005, is
intended to supplement the terms and provisions of certain Transactions (each, a
"Transaction") entered into from time to time between Goldman, Sachs & Co.
("GS&Co.") and Techne Corporation ("Counterparty"). This Master Confirmation,
taken alone, is neither a commitment by either party 10 enter into any
Transaction nor evidence of a Transaction. The terms of any particular
Transaction shall be set forth in a Supplemental Confirmation in the form of
Annex A or Annex B hereto, as the case may be, which references this Master
Confirmation, in which event the terms and provisions of this Master
Confirmation shall be deemed to be incorporated into and made a part of each
such Supplemental 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
evidences a complete binding agreement between the Counterparty and GS&Co. as to
the terms of each Transaction to which this Master Confirmation and the related
Supplemental Confirmation relates.
All provisions contained in or incorporated by reference in the form of the 1992
ISDA Master Agreement (Multi-Currency Cross Border) (the "ISDA Form" or the
"Agreement") will govern this Master Confirmation and each Supplemental
Confirmation except as expressly modified hereby or thereby. Subject to the
preceding sentence, this Master Confirmation and each Supplemental Confirmation,
together with all other documents referring to the Agreement confirming
Transactions entered into between GS&Co. and Counterparty, shall supplement,
form a part of, and be subject to the ISDA Form as if GS&Co. and Counterparty
had executed the Agreement (but without any Schedule except for (i) the election
of Loss and Second Method, New York law (without regard to the conflicts of law
principles) 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 Transactions, (iii) the replacement of the word "third" in the last
line of Section 5(a)(i) with the word "first" and (iv) the election that the
"Cross Default" provisions of Section 5(a)(vi) shall apply to Counterparty, with
a "Threshold Amount" of USD 50 million).
All provisions contained in the Agreement shall govern this Master Confirmation
and the related Supplemental Confirmation relating to a Transaction except as
expressly modified below or in the related Supplemental Confirmation. With
respect to any relevant Transaction, the Agreement, this Master Confirmation and
the related Supplemental Confirmation, together with an other documents
referring to the Agreement confirming Transactions entered into between GS&Co.
and Counterparty, shall represent the entire agreement and understanding of the
parties with respect to the subject matter and terms of such Transaction and
shall supersede all prior or contemporaneous written or oral communications with
respect thereto.
If, in relation to any Transaction to which this Master Confirmation and related
Supplemental Confirmation relate, there is any inconsistency between the
Agreement, this Master Confirmation, any Supplemental Confirmation and the
Equity Definitions that are incorporated into any Supplemental Confirmation, 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.
l. Each Transaction constitutes a Share Forward Transaction for the
purposes of the Equity Definitions. Set forth below are the terms and conditions
which, together with the terms and conditions set forth in each Supplemental
Confirmation (in respect of each relevant Transaction), shall govern each such
Transaction.
General Terms:
Trade Date: For each Transaction, as set forth in the
Supplemental Confirmation.
Seller: Counterparty
Buyer: GS&Co.
Shares: Common Stock (par value $0.01) of
Counterparty
(Ticker:TECH)
Number of Shares: For each Transaction. as set forth in the
Supplemental Confirmation.
Forward Price: For each Transaction, as set forth in the
Supplemental Confirmation.
Capped Settlement Amount: For each Collared Transaction, as set
forth in the Supplemental Confirmation.
Floor Settlement Amount: For each Collared Transaction, as set
forth in the Supplemental Confirmation.
Hedge Forward Differential: For each Collared Transaction, as set forth
in the Supplemental Confirmation.
Hedge Forward
Cash Settlement Amount: For each Collared Transaction, as set forth
in the Supplemental Confirmation.
Collared Transaction: A Transaction entered into pursuant to a
Supplemental Confirmation in the form of
Annex B hereto.
Prepayment: Not Applicable
Variable Obligation: Not Applicable
Exchange: NASDAQ
Related Exchange(s): All Exchanges
Market Disruption Event: The definition of "Market Disruption Event"
in Section 6.3(a) of the Equity Definitions
is hereby amended by inserting the words
"at any time on any Scheduled Trading Day
during the Valuation Period or" after the
word "material," in the third line thereof.
Counterparty Additional
Payment Amount: For each Transaction, as set forth in the
Supplemental Confirmation, Counterparty
shall pay the Counterparty Additional
Payment Amount to GS&Co. on the Cash
Settlement Payment Date.
Valuation:
Valuation Period: Each Scheduled Trading Day during the
period commencing on and including the
first succeeding Scheduled Trading Day
following the Trade Date, or, for Collared
Transactions, the first succeeding
Scheduled Trading Day following the Hedge
Completion Date (as defined in the
Supplemental Confirmation), to and
including the Valuation Date (but excluding
any day(s) on which the Valuation Period is
suspended in accordance with Section 5
herein and including any day(s) by which
the Valuation Period is extended pursuant
to the provision below).
Notwithstanding anything to the contrary in
the Equity Definitions, to the extent that
any Scheduled Trading Day in the Valuation
Period is a Disrupted Day, the Valuation
Date shall be postponed and the Calculation
Agent in its sole discretion shall extend
the Valuation Period and make adjustments
to the weighting of each Relevant Price for
purposes of determining the Settlement
Price, 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. To the extent that there are
9 consecutive Disrupted Days during the
Valuation Period, then notwithstanding the
occurrence of a Disrupted Day, the
Calculation Agent shall have the option in
its sole discretion to either determine the
Relevant Price using its good faith
estimate of the value for the Share on such
9th consecutive day or elect to further
extend the Valuation Period as it deems
necessary.
Valuation Date: For each Transaction, as set forth in the
Supplemental Confirmation (as the same may
be postponed in accordance with the
provisions of "Valuation Period" and
Section 5 herein).
Settlement Terms:
Settlement Currency: USD (all amounts shall be converted to the
Settlement Currency in good faith and in a
commercially reasonable manner by the
Calculation Agent).
Settlement Method Election: Applicable; provided that 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 deleting the word
"Physical" in the last line thereof and
replacing it with word "Cash".
Electing Party: Counterparty
Settlement Method
Election Date: 20 Scheduled Trading Days prior to the
originally scheduled Valuation Date.
Default Settlement Method: Cash Settlement
Additional Cash Settlement
Procedures: In addition to the payments payable
pursuant to Section 8.4(a) of the Equity
Definitions, the following additional
amounts will be payable on the Cash
Settlement Payment Date:
(a) If the Collared Forward Cash
Settlement Amount is a positive number,
then Seller shall pay to Buyer the Collared
Forward Cash Settlement Amount (such amount,
the "Net Cash Amount"); or
(b) if the Collared Forward Cash Settlement
Amount is a negative number, then Buyer shall
pay to Seller the absolute value of the
Collared Forward Cash Settlement Amount.
Collared Forward
Cash Settlement Amount: An amount in the Settlement Currency equal
to the sum of the Hedge Forward Differential
and:
(a) if the Hedge Forward Cash Settlement
Amount is a positive number, the lesser of
the Hedge Forward Cash Settlement Amount and
the Capped Settlement Amount; or
(b) if the Hedge Forward Cash Settlement
Amount is a negative number, the lesser of the
absolute value of the Hedge Forward Cash
Settlement Amount and the Floor Settlement
Amount.
Forward Cash
Settlement Amount: An amount in the Settlement Currency equal to
the product of (a) the Number of Shares
multiplied by one minus the Applicable
Percentage, multiplied by (b) an amount equal
to (i) the Settlement Price minus (ii) the
Forward Price.
Applicable Percentage: For each Transaction, as set forth in the
Supplemental Confirmation.
Settlement Price: The arithmetic mean of the Relevant Prices of
the Shares for each Exchange Business Day in
the Valuation Period.
Relevant Price: The NASDAQ Volume Weighted Average Price per
share of the Shares for the regular trading
session (including any extensions thereof) of
the Exchange on the related Exchange
Business Day (without regard to pre-open or
after hours trading outside of such regular
trading session) as published by Bloomberg at
4: 15 p.m. New York time on such date. For
purposes of calculating Relevant Price, the
Calculation Agent will include only those
trades which are reported during the period of
time during which Counterparty could purchase
its own shares under Rule I Ob-18(b )(2), and
pursuant to the conditions of Rule I Ob-18
(b )(3) and (b)( 4) each under the Exchange
Act (as defined herein).
Cash Settlement Payment Date: 3 Currency Business Days after the Valuation
Date.
Counterparty's Contact Details
for Purpose of Giving Notice: Gregory J. Melsen
Techne Corporation
Vice President Finance and Chief
Financial Officer
614 McKinley Place N.E.
Minneapolis, MN 55413
Telephone No.: (612) 656-4472
Facsimile No.: (612) 379-6580
GS&Co.' s Contact Details for
Purpose of Giving Notice: Telephone No.: (212) 902-8996
Facsimile No.: (212) 902-0112
Attention: Equity Operations: Options
and Derivatives
With a copy to:
Kelly Coffey
Equity Capital Markets
One New York Plaza
New York, NY 10004 Telephone
No.: (212) 902-1037
Facsimile No.: (212) 902-5305
Net Share Settlement:
Net Share Settlement Procedures: Net Share Settlement shall be made in
accordance with the procedures attached
hereto as Annex C.
Net Share Settlement Price: (a) in respect of any Share for which the
Exchange is an auction or "open outcry"
exchange that has a price as of the
Valuation Time at which any trade can be
submitted for execution, the Net Share
Settlement Price shall be the price per
Share as of the Valuation Time on the Net
Share Valuation Date as reported in the
official real-time price dissemination
mechanism for such Exchange, (b) in respect
of any Share for which the Exchange is a
dealer exchange or dealer quotation
system, the Net Share Settlement Price shall
be the mid-point of the highest bid and
lowest ask prices quoted as of the Valuation
Time on the Net Share Valuation Date (or the
last such prices quoted immediately before
the Valuation Time) without regard to
quotations that "lock" or "cross" the dealer
exchange or dealer quotation system. In an
cases the Net Share Settlement Price shall be
reduced by the per Share amount of the
underwriting discount and/or commissions
agreed to pursuant to the equity underwriting
agreement contemplated by the Net Share
Settlement Procedures and (c) notwith-
standing anything to the contrary in (b)
above, where NASDAQ is the Exchange, the
Net Share Settlement Price will be the
NASDAQ Official Closing Price (NOCP) as of
the Valuation Time on the Net Share
Valuation Date as reported in the official
price determination mechanism for the
Exchange.
Valuation Time: As provided in Section 6.1 of the Equity
Definitions; provided that Section 6.1 of the
Equity Definitions is hereby amended by
inserting the words "Net Share Valuation
Date," before the words "Valuation Date" in
the first and third lines thereof.
Net Share Valuation Date: The Exchange Business Day immediately
following the Valuation Date.
Net Share Settlement Date: The third Exchange Business Day immediately
following the Valuation Date.
Reserved Shares: For each Transaction) as set forth in the
Supplemental Confirmation.
Share Adjustments:
Method of Adjustment: Calculation Agent Adjustment
Extraordinary Events:
Consequences of Merger Events:
(a) Share-for-Share: Modified Calculation Agent Adjustment
(b) Share-for-Other: Cancellation and Payment on that portion of
the Other Consideration that consists of
cash; Modified Calculation Agent Adjustment
on the remainder of the Other Consideration.
(c) Share-for-Combined: Component Adjustment
Determining Party: GS&Co.
Tender Offer: Applicable
Consequences of Tender Offers:
(a) Share-for-Share: Modified Calculation Agent Adjustment
(b) Share-for-Other: Cancellation and Payment on that portion of
the Other Consideration that consists of
cash; Modified Calculation Agent Adjustment
on the remainder of the Other Consideration.
(c) Share-for-Combined: Component Adjustment
Determining Party: GS&Co.
Nationalization, Insolvency
or Delisting: Negotiated Close-out; 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
or The NASDAQ National 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:
(a) Change in Law: Applicable
(b) Failure to Deliver: Not Applicable
(c) Insolvency Filing: Applicable
(d) Loss of Stock Borrow: Applicable; furthermore Sections 12.9(a)(vii)
and 12.9(b)(iv) of the Equity Definitions are
amended by deleting the words "at a rate
equal to or less than the Maximum Stock Loan
Rate" and replacing them with "at a rate of
return equal to or greater than zero".
Hedging Party: GS&Co.
Determining Party: GS&Co.
Non-Reliance: Applicable
Agreements and Acknowledgements
Regarding Hedging Activities: Applicable
Additional Acknowledgements: Applicable
Net Share Settlement following
Extraordinary Event: Counterparty shall have the right, in its
sole discretion, to make any payment required
to be made by it pursuant to Sections 12.7 or
12.9 of the Equity Definitions (except with
respect to any portion of the consideration
for the Shares consisting of cash in the
event of a Merger Event or Tender Offer)
following the occurrence of an Extraordinary
Event by electing to Net Share Settle the
Transactions under this Master Confirmation
in accordance with the terms, and subject to
the conditions, for Net Share Settlement
herein by giving written notice to GS&Co. of
such election on the day that the notice
fixing the date that the Transactions are
terminated or cancelled, as the case may be,
(the "Cancellation Date") pursuant to the
applicable provisions of Section 12 of the
Equity Definitions is effective. If
Counterparty elects Net Share Settlement:
(a)the Net Share Valuation Date shall be the
date specified in the notice fixing the date
that the Transactions are terminated or
cancelled, as the case may be; provided that
the Net Share Valuation Date shall be either
the Exchange Business Day that such notice is
effective or the first Exchange Business Day
immediately following the Exchange Business
Day that such notice is effective, (b) the
Net Share Settlement Date shall be deemed to
be the Exchange Business Day immediately
following the Cancellation Date and (c) a1l
references to the Forward Cash Settlement
Amount or the Net Cash Amount, as the case
may be, in Annex C hereto shall be deemed to
be references to the Cancellation Amount.
Net Share Settlement Upon
Early Termination: Counterparty shall have the right, in its
sole discretion, to make any payment required
to be made by it (the "Early Termination
Amount") pursuant to Sections 6(d) and 6(e)
of the Agreement following the occurrence of
an Early Termination Date in respect of the
Agreement by electing to Net Share Settle all
the Transactions under this Master
Confirmation in accordance with the terms,
and subject to the conditions, for Net Share
Settlement herein by giving written notice to
GS&Co. of such election on the day that the
notice fixing an Early Termination Date is
effective. If Counterparty elects Net Share
Settlement: (a) the Net Share Valuation Date
shall be the date specified in the notice
fixing an Early Termination Date; provided
that the Net Share Valuation Date shall be
either the Exchange Business Day that such
notice is effective or the first Exchange
Business Day immediately following the
Exchange Business Day that such notice is
effective, (b) the Net Share Settlement
Date shall be deemed to be the Exchange
Business Day immediately following the Early
Termination Date and (c) all references to
Forward Cash Settlement Amount or the Net
Cash Amount, as the case may be, in Annex C
hereto shall be deemed references to the
Early Termination Amount.
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. that is
guaranteed by The Goldman Sachs Group, Inc.
without the consent of Counterparty.
GS&Co. Payment Instructions: Chase Manhattan Bank New York
For A/C Goldman, Sachs & Co.
A/C #__________
ABA: 021-000021
Counterparty Payment Instructions: To be provided by Counterparty
2. Calculation Agent: GS&Co.
3. Representations. Warranties and Covenants of GS&Co. and Counterparty.
(a) Each party represents and warrants that it (i) is an "eligible contract
participant", as defined in the U.S. Commodity Exchange Act, as amended and (ii)
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) 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 and the
provisions of Regulation D promulgated thereunder ("Regulation D"). 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, (iii) it will purchase each
Transaction for investment and not with a view to the distribution or resale
thereof, and (iv) the disposition of each Transaction is restricted under this
Master Confirmation and each Supplemental Confirmation, the Securities Act and
state securities laws.
(c) Each party acknowledges that, for the avoidance of doubt, no collateral is
required to be posted by Counterparty with respect to any Transaction.
4. Additional Representations. Warranties and Covenants of Counterparty.
As of (i) the date hereof and (ii) the period of time from and including the
time at which Counterparty places an order with GS&Co. for a Transaction (the
"Time of the Order") to and including the Hedge Completion Date, Counterparty
represents, warrants and covenants to GS&Co. that:
(a) Counterparty will provide notice to GS&Co. of any third-party tender offer
of which it is aware for purposes of Rule 13e-l under the Securities Exchange
Act of 1934, as amended (the "Exchange Act");
(b) is not entering into any Transaction on the basis of, and is not aware of,
any material nonpublic information with respect to the Shares or in anticipation
of, in connection with, or to facilitate, a distribution of its
securities, a self tender offer or a third-party tender offer;
(c) it is not entering into any Transaction to create, and will not engage in
any other securities or derivative transaction to create, a false or misleading
appearance of active trading or market activity in the Shares (or any security
convertible into or exchangeable for the Shares), or which would otherwise
violate the Exchange Act;
(d) Counterparty is in compliance with its reporting obligations under the
Exchange Act and its most recent Annual Report on Form IO-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 any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances in which they
were made, not misleading;
(e) each Transaction is being entered into pursuant to a publicly disclosed
Share buy-back program and its Board of Directors has approved the Agreement and
the Master Confirmation (including the use of derivatives) in substantially the
form of such documents executed and delivered by the parties hereto to effect
the Share buy-back program;
(f) notwithstanding the generality of Section 13.1 of the Equity Definitions,
GS&Co. is not making any representations or warranties with respect to the
treatment of any Transaction under FASB Statements 149 or 150, EITF 00-19 (or
any successor issue statements) or under FASB's Liabilities & Equity Project;
(g) it will not take any action or refrain from taking any action that would
knowingly limit or in any way adversely affect GS&Co.'s rights under the
Agreement, so long as GS&Co. is not in breach of the Agreement or this Master
Confirmation, provided that the foregoing shall not in any manner be construed
to limit Counterparty's ability to protect, preserve and pursue any of its
rights under the Agreement or this Master Confirmation in a commercially
reasonable manner;
(h) it has not, and during any Valuation Period (as extended pursuant to the
provisions of Section 5 and "Valuation Period" herein) or Hedge Period will not,
enter into agreements similar to the Transactions described herein where the
valuation period in such other transaction will overlap at any time (including
as a result of extensions in such valuation period as provided in the relevant
agreements) with any Valuation Period (as extended pursuant to the provisions of
Section 5 and "Valuation Period" herein) or Hedge Period under this Master
Confirmation. In the event that the valuation period in any other similar
transaction overlaps with any Hedge Period or any Valuation Period under this
Master Confirmation as a result of any extension made pursuant to the provisions
of Section 5 and "Valuation Period" herein, Counterparty shall promptly amend
such transaction to avoid any such overlap;
(i) during the Hedge Period and the Valuation Period (as extended or
suspended pursuant to the provisions of Section 5 and "Valuation Period" herein)
the Shares or securities that are convertible into, or exchangeable or
exercisable for Shares are not subject to a "restricted period" as such term is
defined in Regulation M promulgated under the Exchange Act ("Regulation M");
(j) upon entering into each Transaction the Counterparty covenants that it wi1l
immediately retire or hold in treasury the Number of Shares purchased by it in
connection with the relevant Transaction from an entity affiliated with GS&Co.;
and
(k) it shall report each Transaction as required under Regulation S-K and/or
Regulation S-B under the Exchange Act, as applicable.
5. Suspension of Valuation Period and/or Hedge Period.
(a) If Counterparty concludes that it will be engaged in a distribution of the
Shares for purposes of Regulation M, Counterparty agrees that it wi1t, on one
Scheduled Trading Day's written notice, direct GS&Co. not to purchase Shares in
connection with hedging any Transaction during the "restricted period" (as
defined in Regulation M). If on any Scheduled Trading Day Counterparty delivers
written notice (and confirms by telephone) by 8:30 a.m. New York Time (the
"Notification Time") then such notice shall be effective to suspend the
Valuation Period or the Hedge Period, as the case may be, as of such
Notification Time. In the event that Counterparty delivers notice and/or
confirms by telephone after the Notification Time, then the Valuation Period or
the Hedge Period, as the case may be, shall be suspended effective as of 8:30
a.m. New York Time on the following Scheduled Trading Day or as otherwise
required by law or agreed between Counterparty and GS&Co. The Valuation Period
shall be suspended and the Valuation Date extended for each Scheduled Trading
Day in such restricted period.
(b) In the event that GS&Co. concludes, in its sole discretion, that it is
appropriate with respect to any legal, regulatory or self-regulatory
requirements or related policies and procedures (whether or not such
requirements, policies or procedures are imposed by law or have been voluntarily
adopted by GS&Co.), for it to refrain from purchasing Shares on any Scheduled
Trading Day during the Valuation Period or the Hedge Period, GS&Co. may by
written notice to Counterparty elect to suspend the Valuation Period or the
Hedge Period, as the case may be, for such number of Scheduled Trading Days as
is specified in the notice. The notice shall not specify, and GS&Co. shall not
otherwise communicate to Counterparty, the reason for GS&Co. 's election to
suspend the Valuation Period or the Hedge Period. The Valuation Period shall be
suspended and the Valuation Date extended for each Scheduled Trading Day
occurring during any such suspension.
(c) On one occasion and upon written notice to GS&Co. prior to 8:30 a.m. New
York time on any Scheduled Trading Day during the Valuation Period and the Hedge
Period, Counterparty may elect to suspend the Valuation Period or the Hedge
Period, as the case may be, for such number of Scheduled Trading Days as is
specified in the notice up to a maximum of 30 calendar days. The notice shall
not specify, and Counterparty shall not otherwise communicate to GS&Co., the
reason for Counterparty's election to suspend the Valuation Period or the Hedge
Period. The Valuation Period shall be suspended and the Valuation Date extended
for each Scheduled Trading Day occurring during any such suspension.
(d) In the event Counterparty is subject to a third-party tender offer, and for
purposes of Counterparty's compliance with Rule Be-I, Counterparty may elect,
upon written notice to GS&Co. prior to 8:30 a.m. New York time on any Scheduled
Trading Day during the Valuation Period and the Hedge Period, to suspend the
Valuation Period or the Hedge Period, as the case may be, for such number of
Scheduled Trading Days as is specified in the notice up to a maximum of 30
calendar days. The Valuation Period shall be suspended and the Valuation Date
extended for each Scheduled Trading Day occurring during any such suspension.
(e) In the event that the Valuation Period is suspended pursuant to Sections
5(a),(b), (c) or (d) above during the regular trading session on the Exchange
then the Calculation Agent in its sole discretion shall, in calculating the
Forward Cash Settlement Amount, extend the Valuation Period and make adjustments
to the weighting of each Relevant Price for purposes of determining the
Settlement Price, with such adjustments based on, among other factors, the
duration of any such suspension and the volume, historical trading patterns and
price of the Shares.
6. Counterparty Purchases. Counterparty represents, warrants and covenants
to GS&Co. that for each Transaction:
(a) Counterparty (or any "affiliated purchaser" as defined in Rule 1 Ob-18 under
the Exchange Act ("Rule 10b-18") shall not, without the prior written consent
of GS&Co., purchase any Shares, listed contracts on the Shares or securities
that are convertible into, or exchangeable or exercisable for Shares (including,
without limitation, any Rule IOb-18 purchases of blocks (as defined in Rule I
Ob-18)) during any Valuation Period or Hedge Period (as extended pursuant to the
provisions of Section 5 and "Valuation Period" herein). During this time, any
such purchases by Counterparty shall be made through GS&Co., or if not through
GS&Co., with the prior written consent of GS&Co., and in compliance with Rule
lOb-18 or otherwise in a manner that Counterparty and GS&Co. believe is in
compliance with applicable requirements. Any such purchase by Counterparty shall
be disregarded for purposes of determining the Forward Cash Settlement Amount.
To the extent that Counterparty makes any such purchase other than through
GS&Co., or other than in connection with any Transaction, Counterparty hereby
represents and warrants to GS&Co. that (a) it will not take other action that
would or could cause GS&Co.'s purchases of the Shares during the Valuation
Period and the Hedge Period not to comply with Rule 1Ob-18 and (b) any such
purchases will not otherwise constitute a violation of Section 9(a) or Rule
10(b) of the Exchange Act. This subparagraph (a) shall not restrict any
purchases by Counterparty of Shares effected during any suspension of any
Valuation Period or any Hedge Period in accordance with Section 5 herein and any
purchases during such suspension shall be disregarded in calculating the Forward
Cash Settlement Amount; and
(b) 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 1Ob5-1 under the Exchange Act ("Rule 10b5-1 "). It is the
intent of the parties that each Transaction entered into under this Master
Confirmation comply with the requirements of Rule lOb5-l(c)(1)(i)(A) and (B) and
each Transaction entered into under this Master Confirmation shall be
interpreted to comply with the requirements of Rule 1Ob5-l(c). Counterparty wi1l
not seek to control or influence GS&Co. to make "purchases or sales" (within the
meaning of Rule 1Ob5-1(c)(l)(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 1Ob5-1.
7. Additional Termination Events. Additional Termination Event will apply.
The following will constitute Additional Termination Events, in each case with
Counterparty as the sole Affected Party:
(a) Notwithstanding anything to the contrary in the Equity Definitions, the
occurrence of a Nationalization, Insolvency or a Delisting (in each case
effective on the Announcement Date as determined by the Calculation Agent);
(b) Notwithstanding anything to the contrary in the Equity Definitions, the
occurrence of a Merger Event (effective on the Merger Date) or a Tender Offer
(effective on the Tender Offer Date) in respect of which any Other Consideration
received for the Shares does not consist of cash. For the avoidance of doubt, in
the event that any portion of the consideration received for the Shares consists
of cash or New Shares, this Additional Termination Event shall only apply with
respect to all or any Transaction(s) (or portions thereof) remaining after
giving effect to the provisions in "Consequences of Merger Events" or
"Consequences of Tender Offers", as the case may be, above;
(c) GS&Co. shall reasonably believe in good faith that Counterparty will be
unable to meet its obligations when due for any reason and Counterparty fails,
after 10 Business Days prior written notice from GS&Co. to provide GS&Co. with
reasonable assurance of its ability to perform: or
(d) Notwithstanding anything to the contrary in the Equity Definitions, an
Extraordinary Dividend is declared by the Issuer.
8. Additional Event of Default. The following will constitute an Event of
Default for purposes of Section 5(a) of the Agreement (with Counterparty
considered to be the Defaulting Party as a result of clause (a) and Counterparty
or GS&Co. considered to be the Defaulting Party as a result of clause (b), as
the case may be):
(a) Counterparty fails to perform any material obligation required to be
performed under any other agreement between Counterparty and GS&Co. or its
affiliated entities (after giving effect to any applicable notice requirement or
grace period, or such default continues for at least three Exchange Business
Days if there is no applicable notice requirement or grace period).
(b) Counterparty reasonably believes in good faith that continued performance of
the Agreement by either party would contravene any law, regulation or order (or
similar obligation to which it is subject) (such party shall be
the Defaulting Party) or that GS&Co. has failed to comply with any federal or
state securities laws or regulations or any applicable regulations of self-
regulatory organizations of which it is a member in the performance of its
obligations under the Agreement.
9. Automatic Termination Provisions. Notwithstanding anything to the
contrary in Section 6 of the Agreement:
(a) An Additional Termination Event with Counterparty as the sole Affected Party
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 fans below the
Termination Price (as specified in the related Supplemental Confirmation)
provided that (for the avoidance of doubt only) such Additional Termination
Event shall be an Additional Termination Event only with respect to the
Transaction documented in such related Supplemental Confirmation. 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.
(b) Notwithstanding anything to the contrary in Section 6(d) of the Agreement.
fol1owing the occurrence of such an Additional Termination Event, GS&Co. will
notify Counterparty of the amount owing under Section 6(e) of the Agreement
within a commercially reasonable time period (with such period based upon the
amount of time, determined by GS&Co. (or any of its Affiliates) in its sole
discretion, that it would take to unwind any of its Hedge Position(s) related to
the Transaction in a commercially reasonable manner based on relevant market
indicia). For purposes of the "Net Share Settlement Upon Early Termination"
provisions herein, (i) the date that such notice is effective (the "Notice
Date") shall constitute the "Net Share Valuation Date", (ii) the Exchange
Business Day immediately following the Notice Date shall be the Net Share
Settlement Date and (iii) all references to the Net Cash Amount in Annex C
hereto shall be deemed to be the Early Termination Amount.
10. Special Provisions for Merger Events. Notwithstanding anything to the
contrary herein or in the Equity Definitions, to the extent that an Announcement
Date for a potential Merger Transaction occurs during any Valuation Period:
(a) Promptly after request from GS&Co., Counterparty shall provide GS&Co. with
written notice specifying (i) Counterparty's average daily Rule 1Ob-18 Purchases
(as defined in Rule lOb-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 1Ob-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. Counterparty understands that GS&Co. will use this information in
calculating the trading volume for purposes of Rule 1Ob-18; and
(b) GS&Co. in its sole discretion may (i) make adjustments to the terms
of any Transaction, including, without limitation, the Valuation Date, the
Counterparty Additional Payment Amount and the Number of Shares to account for
the number of Shares that could be purchased on each day during the Valuation
Period in compliance with Rule 1Ob-18 following the Announcement Date or (ii)
treat the occurrence of the Announcement Date as an Additional Termination Event
with Counterparty as the sole Affected Party.
"Merger Transaction" means any merger, acquisition or similar transaction
involving a recapitalization as contemplated by Rule IOb-18(a)(l3)(iv) under the
Exchange Act.
11. Special Calculation and Settlement Following Early Termination and
Extraordinary Events. Notwithstanding anything to the contrary in this Master
Confirmation or any Supplemental Confirmation hereunder, in the event that an
Extraordinary Event under Article 12 of the Equity Definitions occurs or an
Early Termination Date occurs or is designated with respect to any Transaction
(each an "Affected Transaction"), then GS&Co. may elect, in its sole discretion,
by notice to Counterparty, to have Counterparty deliver the Number of Early
Settlement Shares to GS&Co. on the date that such notice is effective and either
GS&Co. shall pay to Counterparty the Special Termination Amount, if positive, or
Counterparty shall pay to GS&Co. the absolute value of the Special Termination
Amount, if negative. To the extent that Counterparty elects to deliver Shares to
GS&Co. accompanied by an effective Registration Statement (satisfactory to
GS&Co. in its sole discretion) covering such Shares, Counterparty must be in
compliance with the conditions specified in (iii) though (ix) in Annex C hereto
at the time of such delivery. If Counterparty elects to deliver Unregistered
Shares (as defined in Annex C) to GS&Co., Counterparty and GS&Co. will negotiate
in good faith on acceptable procedures and documentation relating to the
sale of such Unregistered Shares. Counterparty and GS&Co. agree that the payment
of the Special Termination Amount and the delivery of the Number of Early
Settlement Shares satisfies in full any obligation of a party to make
any payments pursuant to Section 6(e) of the Agreement or Article 12 of the
Equity Definitions. as the case may be.
"Number of Early Settlement Shares" means a number of Shares as determined by
GS&Co. in a good faith and commercially reasonable manner based on its or any of
its Affiliates' Hedge Positions with respect to each Affected Transaction under
this Master Confirmation.
"Special Termination Amount" means, without duplication, the sum of (a) the
product of (i) the Number of Early Settlement Shares multiplied by (ii) a per
Share price (the "Early Termination Price") determined by GS&Co. in a good faith
and commercially reasonable manner based on relevant market indicia, including
GS&Co.'s funding costs associated with Early Settlement Shares and costs
incurred or estimated to be incurred by GS&Co. in connection with the purchase
and sale of Shares in order to close out GS&Co.'s or any of its Affiliates'
Hedge Positions with respect to each Affected Transaction and, in the event that
Counterparty delivers Unregistered Shares to GS&Co., whether GS&Co. and
Counterparty have agreed on acceptable procedures and documentation relating to
such Unregistered Shares as described above and (b) any amount owing under
Section 6(e) of the Agreement or pursuant to Article 12 of the Equity
Definitions, as the case may be, by GS&Co. to Counterparty (expressed as a
positive number) or by Counterparty to GS&Co. (expressed as a negative number).
12. Acknowledgments. The parties hereto intend for:
(a) Each Transaction to be a "securities contract" as defined in Section 741
(7) of the U.S. Bankruptcy Code (Title II of the United States Code) (the
"Bankruptcy Code"), a "swap agreement" as defined in Section 101(53B) of the
Bankruptcy Code, or 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),555, 556, and
560 of the Bankruptcy Code;
(b) A party's right to liquidate or terminate any Transaction, net out
or offset termination values of payment amounts, and to exercise any other
remedies upon the occurrence of any Event of Default under the Agreement with
respect to the other party to constitute a "contractual right" (as defined in
the Bankruptcy Code);
(c) Any cash, securities or other property transferred as performance assurance,
credit support or col1ateral with respect to each Transaction to constitute
"margin payments" (as defined in the Bankruptcy Code);
(d) All payments for, under or in connection with each Transaction, an payments
for the Shares and the transfer of such Shares to constitute "settlement
payments" and "transfers" (as defined in the Bankruptcy
Code); and
(e) GS&Co. to not have any rights that rank higher than those rights held by
shareholders of Shares.
13. Calculations on Early Termination and Set-Off.
(a) Notwithstanding anything to the contrary in the Agreement or the Equity
Definitions, the calculation of any Settlement Amounts, Unpaid Amounts and
amounts owed in respect of cancelled Transactions under Article 12 of the Equity
Definitions shall be calculated separately for (A) all Terminated Transactions
(it being understood that such term for the purposes of this paragraph includes
cancelled Transactions under Article 12 of the Equity Definitions) in the Shares
of the Issuer that qualify as equity under applicable accounting rules
(collectively, the "Equity Shares") as determined by the Calculation Agent and
(B) all other Terminated Transactions under the Agreement including, without
limitation, Transactions in Shares other than those of the Issuer (collectively,
the "Other Shares") and the netting and set-off provisions of the Agreement
shall only operate to provide netting and set-off (i) among Terminated
Transactions in the Equity Shares and (ii) among Terminated Transactions in the
Other Shares. In no event shall the netting and set-off provisions of the
Agreement operate to permit netting and set-off between Terminated Transactions
in the Equity Shares and Terminated Transactions in the Other Shares.
(b) 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 ("V") 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 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 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)."
14. Payment Date Upon Early Termination. 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.
15. Governing Law. The Agreement, this Master Confirmation and 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 law of the
State of New York without reference to its choice of law doctrine.
16. Offices.
(a) The Office of GS&Co. for each Transaction is: One New York Plaza, New York,
New York 10004.
(b) The Office of Counterparty for each Transaction is: 6]4 McKinley Place N.E.,
Minneapolis, Minnesota 55413.
17. Arbitration.
(a) Arbitration is final and binding on Counterparty and GS&Co.
(b) Counterparty and GS&Co. are waiving their right to seek remedies in court,
including the right to a jury trial.
(c) Pre-arbitration discovery is generally more limited than and different from
court proceedings.
(d) The arbitrator's award is not required to include factual findings or legal
reasoning and any party's right to appeal or to seek modification of rulings by
the arbitrators is strictly limited.
(e) The panel of arbitrators will typically include a minority of arbitrators
who were or are affiliated with the securities industry.
Any controversy between or among GS&Co. or its affiliates, or any of its or
their partners, directors, agents or employees, on the one hand, and
Counterparty or its agents and affiliates, on the other hand, arising out of or
relating to the Agreement or any Transaction entered into hereunder, shall be
settled by arbitration, in accordance with the then current rules of, at
Counterparty's election, the American Arbitration Association ("AAA") or the
Board of Arbitration of the New York Stock Exchange, Inc. ("BANYSE"). If
Counterparty does not make such election by registered mail addressed to GS&Co.
within five (5) Exchange Business Days after receipt of notification from GS&Co.
requesting such election, then Counterparty irrevocably authorizes GS&Co. to
make such election on behalf of Counterparty. The award of the arbitrators shall
be final, and judgment upon the award rendered may be entered in any court,
state or Federal, having jurisdiction.
Neither party 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; 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) the party 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 the Agreement except to the extent stated herein.
18. 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 Transaction., 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 sincerely,
GOLDMAN, SACHS & CO.
By:______________________
Authorized Signatory
Agreed and Accepted By:
TECHNE CORPORATION
By: _______________________
Name
Title
..
ANNEX A
SUPPLEMENTAL CONFIRMATION FOR FULLY UNCOLLARED TRANSACTIONS
To: Techne Corporation
614 McKinley Place N.E.
Minneapolis, MN 55413
From: Goldman, Sachs & Co.
Subject: Accelerated Share Repurchase Transaction - VWAP Pricing
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 Techne Corporation ("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.
The definitions and provisions contained in the Master Confirmation specified
below are incorporated into this Supplemental Confirmation. In the event of any
inconsistency between those definitions and provisions and this Supplemental
Confirmation, this Supplemental Confirmation will govern.
1. This Supplemental Confirmation supplements, forms part of, and is subject
to the Master Confirmation dated as of March 1, 2005 (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: [ ], 2005. In a related transaction
Counterparty agreed to purchase a number of
Shares equal to the Number of Shares from
GS&Co. on the Trade Date at the Forward Price
per Share.
Forward Price: USD [ ] per Share
Valuation Date: [ ], 2005 (1)
Number of Shares: [ ] Shares
Termination Price: $15.00 per Share
Reserved Shares: 6,000,000 Shares
(1) [ ] month(s) after the Trade Date.
3. Counterparty represents and warrants to GS&Co. that neither it (nor any
"affiliated purchaser" as defined in Rule 1Ob-18 under the Exchange Act) have
made any purchases of blocks pursuant to the proviso in Rule 10b-18(b)(4) under
the Exchange Act during the four full calendar weeks immediately preceding the
Trade Date.
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 this Transaction, 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: TECHNE CORPORATION
By:____________________
Name:
Title:
ANNEX B
SUPPLEMENTAL CONFIRMATION FOR COLLARED TRANSACTIONS
To: Techne Corporation
614 McKinley Place N.E.
Minneapolis, MN 55413
From: Goldman, Sachs & Co.
Subject: Collared Accelerated Share Repurchase Transaction - VWAP Pricing
Ref. No: EN50B4000000000
Date: March 1, 2005
The purpose of this Supplemental Confirmation is to confirm the terms and
conditions of the Transaction (the "Transaction") entered into between Goldman,
Sachs & Co. ("GS&Co.") and Techne Corporation ("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. The final terms of the
Transaction shall be sent to Counterparty by GS&Co. substantially in the form of
a Trade Notification attached hereto as Schedule A.
The definitions and provisions contained in the Master Confirmation specified
below are incorporated into this Supplemental Confirmation. In the event of any
inconsistency between those definitions and provisions and this Supplemental
Confirmation, this Supplemental Confirmation will govern. This Transaction
constitutes a "Collared Transaction" for purposes of the Master Confirmation.
1. This Supplemental Confirmation supplements, forms part of, and is subject
to the Master Confirmation dated as of March 1, 2005 (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: As specified in the Trade Notification. In a
related transaction Counterparty agreed to
purchase a number of Shares equal to the
Number of Shares from GS&Co. on the Trade Date
at the Forward Price per Share.
Capped Settlement Amount: The product of (a) 0.0% of the Hedge Period
Market Price multiplied by (b) the Number of
Shares multiplied by (c) the Applicable
Percentage.
Floor Settlement Amount: The product of (a) 5.5% of the Hedge Period
Market Price multiplied by (b) the Number of
Shares multiplied by (c) the Applicable
Percentage.
Hedge Completion Date: The Scheduled Trading Day on which GS&Co.
finishes establishing its Hedge Positions, as
determined by GS&Co. in its sole discretion.
Forward Price: USD $34.45 per Share
Hedge Period Market Price: The NASDAQ Volume Weighted Average Price per
share of the Shares over the Hedge Period
(without regard to pre-open or after hours
trading outside of regular trading sessions),
as published by Bloomberg. For purposes of
calculating the Hedge Period Market Price, the
Calculation Agent will include only those
trades which are reported during the period of
time during which Counterparty could purchase
its own shares under Rule 1Ob-18(b)(2), and
pursuant to the conditions of Rule 1Ob-
18(b)(3) and (b)(4) each under the Exchange
Act.
Hedge Forward Differential: The product of (a) the difference between the
Hedge Period Market Price minus the Forward
Price multiplied by the product of (b) the
Number of Shares multiplied by (c) the
Applicable Percentage.
Hedge Forward Cash
Settlement Amount: The product of (a) the difference between the
Settlement Price minus the Hedge Period Market
Price multiplied by the product of (b) the
Number of Shares multiplied by (c) the
Applicable Percentage.
Hedge Period: The number of Scheduled Trading Days from and
including the Time of the Order to and
including the Scheduled Trading Day upon which
GS&Co. fully establishes its Hedge Positions.
Initial Payment Amount: An amount in USD equal to the product of (i)
5.0% multiplied by (ii) (Number of Shares x
Forward Price) multiplied by (iii) the
Applicable Percentage, payable by Counterparty
to GS&Co. by 10:00 a.m. New York time on the
Scheduled Trading Day immediately following the
Trade Date.
Valuation Date: As specified in the Trade Notification.
Number of Shares: 2,902,758 Shares
Applicable Percentage: As specified in the Trade Notification.
Reserved Shares: 6,000,000 Shares
Termination Price: $15.00 per Share
Counterparty Additional
Payment Amount: As specified in the Trade Notification.
3. Counterparty represents and warrants to GS&Co. that neither it (nor any
"affiliated purchaser" as defined in Rule 10b-18 under the Exchange Act) have
made any purchases of blocks pursuant to the proviso in Rule 1Ob-18(b)(4) under
the Exchange Act during the four full calendar weeks immediately preceding the
Trade Date.
[SIGNATURE PAGE FOLLOWS]
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 this Transaction 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: TECHNE CORPORATION
By. ____________________
Name:
Title:
SCHEDULE A
TRADE NOTIFICATION FOR COLLARED TRANSACTIONS
To: Techne Corporation
614 McKinley Place N.E.
Minneapolis, MN 55413
From: Goldman, Sachs & Co.
Subject: Collared Accelerated Share Repurchase Transaction-VWAP
Pricing
Ref. No: EN50B4000000000
Date: March 24,2005
The purpose of this Trade Notification is to notify you of certain terms in the
Transaction entered into between Goldman, Sachs & Co. ("GS&Co.") and Techne
Corporation ("Counterparty") (together, the "Contracting Parties") on the Trade
Date specified below.
The definitions and provisions contained in the Supplemental Confirmation
specified below are incorporated into this Trade Notification. In the event of
any inconsistency between those definitions and provisions and this Trade
Notification, this Trade Notification will govern.
This Trade Notification supplements, forms part of, and is subject to the
Supplemental Confirmation dated as of March 1, 2005 (the "Supplemental
Confirmation") between the Contracting Parties, as amended and supplemented from
time to time. All provisions contained in the Supplemental Confirmation govern
this Trade Notification.
The Supplemental Confirmation specified a method or formula for determining the
amounts, dates or numbers below. The actual amounts, dates or numbers are as
follows:
Trade Date: March 1, 2005
Hedge Completion Date: March 24, 2005
Capped Settlement Amount: USD $0.00
Floor Settlement Amount: USD $3,854,453.04
Hedge Forward Differential: USD $8,529,761.82
Initial Payment Amount: USD $3,500,000.00
Counterparty Additional Payment Amount: USD $0.00
Valuation Date: December 23, 2005
Applicable Percentage: 61.475%
Yours sincerely,
GOLDMAN, SACHS & CO.
By: ______________________
Authorized Signatory
ANNEX C
NET SHARE SETTLEMENT PROCEDURES
The following Net Share Settlement Procedures shall apply to the extent that
Counterparty elects Net Share Settlement in accordance with the Master
Confirmation:
Net Share Settlement shall be made by delivery of the number of Shares equal in
value to the Forward Cash Settlement Amount plus any Net Cash Amount, if
applicable (the "Settlement Shares"), with such Shares' value based on the Net
Share Settlement Price. Delivery of such Settlement Shares shall be made free of
any contractual or other restrictions in good transferable form on the Net Share
Settlement Date with Counterparty (i) representing and warranting to GS&Co. at
the time of such delivery that it has good, valid and marketable title or
right to sell and transfer all such Shares to GS&Co. under the terms of the
related Transaction free of any lien charge, claim or other encumbrance and (ii)
making the representations and agreements contained in Section 9.11 (ii) through
(iv) of the Equity Definitions to GS&Co. with respect to the Settlement Shares.
GS&Co. or any affiliate of GS&Co. designated by GS&Co. (GS&Co. or such
affiliate, "GS") shall resell the Settlement Shares during a period (the "Resale
Period") commencing no earlier than the Net Share Valuation Date. The Resale
Period shall end on the Exchange Business Day on which GS completes the sale of
all Settlement Shares or a sufficient number of Settlement Shares so that the
realized net proceeds of such sales exceed the Forward Cash Settlement Amount,
plus the Net Cash Amount if applicable. Notwithstanding the foregoing, if resale
by GS of the Settlement Shares, as determined by as in its sole discretion (i)
occurs during a distribution for purposes of Regulation M, and if as would be
subject to the restrictions of Rule 101 of Regulation M in connection with such
distribution, the Resale Period will be postponed or tolled, as the case may be,
until the Exchange Business Day immediately following the end of any "restricted
period" as such term is defined in Regulation M with respect to such
distribution under Regulation M or (ii) conflicts with any legal, regulatory or
self-regulatory requirements or related policies and procedures applicable to as
(whether or not such requirements, policies or procedures are imposed by law or
have been voluntarily adopted by GS), the Resale Period will be postponed or
tolled, as the case may be, until such conflict is no longer applicable. During
the Resale Period, if the realized net proceeds from the resale of the
Settlement Shares exceed the Forward Cash Settlement Amount, plus the Net Cash
Amount if applicable, GS shall refund such excess in cash to Counterparty by the
close of business on the third Exchange Business Day immediately following the
last day of the Resale Period. If the Forward Cash Settlement Amount, plus
the Net Cash Amount if applicable, exceeds the realized net proceeds from such
resale, Counterparty shall transfer to as by the open of the regular trading
session on the Exchange on the third Scheduled Trading Day immediately
following the last day of the Resale Period the amount of such excess (the
"Additional Amount") in cash or in the number of Shares ("Make-whole Shares") in
an amount that, based on the Net Share Settlement Price on the last day of the
Resale Period (as if such day was the "Net Share Valuation Date" for purposes of
computing such Net Share Settlement Price), has a dollar value equal to the
Additional Amount. The Resale Period shall continue to enable the sale of the
Make-whole Shares. If Counterparty elects to pay the Additional Amount in
Shares, the requirements and provisions set forth below shall apply. This
provision shall be applied successively until the Additional Amount is equal to
zero.
Net Share Settlement of a Transaction is subject to the following conditions:
Counterparty at its sole expense shall:
(i) as promptly as practicable (but in no event more than five (5) Exchange
Business Days immediately following the Settlement Method Election Date or, in
the case of an election of Net Share Settlement upon the occurrence of an
Extraordinary Event or an Early Termination Date, no more than three (3)
Exchange Business Day immediately following either the Cancellation Date or the
Early Termination Date, as the case may be) tile under the Securities Act and
use its best efforts to make effective, as promptly as practicable, a
registration statement or supplement or amend an outstanding registration
statement, in any such case, in form and substance reasonably satisfactory to as
(the "Registration Statement") covering the offering and sale by GS of not less
than 150% of the Shares necessary to fulfill the Net Share Settlement delivery
obligation by Counterparty (determining the number of such Shares to be
registered on the basis of the average of the Settlement Prices on the five (5)
Exchange Business Days prior to the date of such filing, amendment or
supplement, as the case may be), provided, however, that Counterparty shall not
be deemed to have failed to comply with its obligation to file the
Registration Statement until one (1) Exchange Business Day after GS&Co. has
indicated that the Registration Statement is reasonable in form and substance to
GS&Co. so long as Counterparty has delivered to GS&Co. a form of the
Registration Statement Counterparty believes to be acceptable for filing
prior to the expiration of the aforementioned five-day or three-day period, as
the case may be;
(ii) maintain the effectiveness of the Registration Statement until GS has sold
all shares to be delivered by Counterparty in satisfaction of its Net Share
Settlement obligations;
(iii) have afforded GS and its counsel and other advisers a reasonable
opportunity to conduct a due diligence investigation of Counterparty customary
in scope for transactions in which GS acts as underwriter of equity securities,
and as shall have been reasonably satisfied (with the approval of its
Commitments Committee in accordance with its customary review process, which
such approval shall not be unreasonably withheld) with the results of such
investigation;
(iv) have negotiated and entered into an agreement with as providing for such
covenants, conditions, representations and warranties, underwriting discounts,
commissions, indemnities and contribution rights as are customary for GS equity
underwriting agreements, together with customary certificates and opinions of
counsel and letters of independent auditors of Counterparty to be delivered to
as covering the shares to be delivered by Counterparty in satisfaction of its
Net Share Settlement obligations;
(v) have delivered to GS such number of prospectuses relating thereto as
OS shall have reasonably requested and shall promptly update and provide GS with
replacement prospectuses as necessary to ensure the prospectus does not contain
any untrue statement of a material fact or any omission of a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances in which they were made, not misleading;
(vi) reimburse GS for an underwriting counsel selected by GS (in its sole
discretion);
(vii) have taken all steps necessary for the shares sold by as to be listed or
quoted on the primary exchange or quotation system that the Shares are listed or
quoted on;
(viii) have paid all reasonable and actual out-of-pocket costs and expenses of
GS and all reasonable and actual fees and expenses of GS's outside counsel and
other independent experts in connection with the foregoing; and
(ix) take such action as is required to ensure that GS's sale of the Shares does
not violate, or result in a violation of, the federal or state securities laws.
In the event that the Registration Statement is not declared effective by the
Securities Exchange Commission (the "SEC") or any of the conditions specified in
(ii) through (ix) above are not satisfied on or prior to the Valuation Date (or,
in the case of an election of Net Share Settlement upon the occurrence of an
Extraordinary Event or an Early Termination Date, on or prior to the first
Exchange Business Day following either the Cancellation Date or the Early
Termination Date, as the case may be), then Counterparty may deliver
Unregistered Shares (as defined below) to OS in accordance with the following
conditions. If GS and Counterparty can agree on acceptable pricing (including
any applicable discounts to the Net Share Settlement Price at which GS can sell
the Unregistered Shares), procedures and documentation relating to the sale of
such Unregistered Shares (including, without limitation, applicable requirements
in (iii) through (ix) above and insofar as pertaining to private offerings),
then such Unregistered Shares shall be deemed to be the "Settlement Shares" or
"Make-whole Shares" for the purposes of the related Transaction and the
settlement procedure specified in this Annex C shall be followed.
Notwithstanding the delivery of the Unregistered Shares, Counterparty shall
endeavor in good faith to have a registration statement declared effective by
the SEC as soon as practical and shall use commercially reasonable
efforts to maintain the effectiveness of any such registration statement. In the
event that as has not sold sufficient Unregistered Shares to satisfy
Counterparty's obligations to as contained herein at the time that a
Registration Statement covering the offering and sale by GS of a number of
Shares equal in value to not less than 150% of the amount then owed to GS is
declared effective (based on the Net Share Settlement Price on the Exchange
Business Day (as if such Exchange Business Day were the "Net Share Valuation
Date" for purposes of computing such Net Share Settlement Price) that the
Registration Statement was declared effective), as shall return al1 unsold
Unregistered Shares to Counterparty and Counterparty shall deliver such number
of Shares covered by the effective Registration Statement equal to 100% of the
amount then owed to as based on such Net Share Settlement Price. Such
delivered shares shall be deemed to be the "Settlement Shares" for the purposes
of the related Transaction and the settlement procedure specified in this Master
Confirmation (including the obligation to deliver any Make-whole Shares, if
applicable) shall be followed. In all cases as shall be entitled to take any and
all required actions in the course of its sales of the Settlement Shares,
including without limitation making sales of the Unregistered Shares only to
"Qualified Institutional Buyers" (as such term is defined under the Securities
Act), to ensure that the sales of the Unregistered Shares and the Settlement
Shares covered by the Registration Statement are not integrated resulting
in a violation of the securities laws and Counterparty agrees to take all
actions requested by GS in furtherance thereof.
If GS and Counterparty cannot agree on acceptable pricing, procedures and
documentation relating to the sales of such Unregistered Shares then the number
of Unregistered Shares to be delivered to as pursuant to the provisions above
shall be based on the value attributed by as to each Unregistered Share in a
commercially reasonable manner and based on such value Counterparty shall
deliver a number of Shares equal in value to the Forward Cash Settlement Amount,
plus the Net Cash Amount, if applicable. For the purposes hereof "Unregistered
Shares" means Shares that have not been registered pursuant to an effective
registration statement under the Securities Act or any state securities laws
("Blue Sky Laws") and that cannot be sold, transferred, pledged or otherwise
disposed of without registration under the Securities Act or under applicable
Blue Sky Laws unless such sale, transfer, pledge or other disposition is made in
a transaction exempt from registration thereunder.
In the event that Counterparty delivers Shares pursuant to an election of Net
Share Settlement then Counterparty agrees to indemnify and hold harmless GS, its
affiliates and its assignees and their respective directors, officers,
employees, agents and controlling persons (as and each such person being an
"Indemnified Party") from and against any and all losses, claims, damages and
liabilities (or actions in respect thereof), joint or several, to which such
Indemnified Party may become subject, under the Securities Act or otherwise. (i)
relating to or arising out of any of the Transactions contemplated by this
Master Confirmation concerning Net Share Settlement or (ii) arising out of or
based upon any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus, prospectus. Registration Statement or
other written material relating to the Shares delivered to prospective
purchasers, including in each case any amendments or supplements thereto and
including but not limited to any documents deemed to be incorporated in any such
document by reference (the "Offering Materials"), or arising out of or based
upon any omission or alleged omission to state in the Offering Materials a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however,
that, in the case of this clause (i), Counterparty will not be liable to the
extent that any loss, claim, damage or liability arises out of or is based upon
any untrue statement or omission or alleged untrue statement or omission in the
Offering Materials made in reliance upon and in conformity with written
information furnished to Counterparty by as expressly for use in the Offering
Materials, as expressly identified in a letter to be delivered at the closing of
the delivery of Shares by Counterparty to GS. For the avoidance of doubt, this
indemnification is not intended to influence the Company's selection of a
settlement procedure of this contract. The foregoing indemnity shall exc1ude
losses that as incurs solely by reason of the proceeds from the sale of a number
of Shares equal to the Capped Number (as defined below) being less than the
Forward Cash Settlement Amount plus any Net Cash Amount. Counterparty will not
be liable under the foregoing indemnification provision to the extent
that any loss, c1aim, damage, liability or expense is found in a nonappealable
judgment by a court of competent jurisdiction or arbitrator to have resulted
from GS's willful misconduct, gross negligence or bad faith in performing the
services that are subject of this Master Confirmation. If for any reason the
foregoing indemnification is unavailable to any Indemnified Party or
insufficient to hold harmless any Indemnified Party, then Counterparty shall
contribute, to the maximum extent permitted by law, to the amount paid or
payable by the Indemnified Party as a result of such loss, claim, damage or
liability. In addition, Counterparty will reimburse any Indemnified Party for
all expenses (including reasonable counsel fees and expenses) as they are
incurred (after notice to Counterparty) in connection with the investigation of,
preparation for or defense or settlement of any pending or threatened claim or
any action, suit or proceeding arising therefrom, whether or not such
Indemnified Party is a party thereto and whether or not such claim, action, suit
or proceeding is initiated or brought by or on behalf of Counterparty; provided
that such Indemnified Party is seeking a claim for indemnification in relation
to such expenses. In the event any Indemnified Party is found in a nonappealable
judgment by a court of competent jurisdiction or arbitrator to have acted in
gross negligence, willful misconduct or bad faith, such Indemnified Party
shall return any amounts paid by Counterparty to such Indemnified Party in
connection with such expenses. Counterparty also agrees that no Indemnified
Party shall have any liability to Counterparty or any person asserting
claims on behalf of or in right of Counterparty in connection with or as a
result of Net Share Settlement except to the extent that any losses, claims,
damages, liabilities or expenses incurred by Counterparty result from the gross
negligence, willful misconduct or bad faith of the Indemnified Party. This
indemnity shall survive the completion of any Transaction contemplated by this
Master Confirmation and any assignment and delegation of a Transaction
made pursuant to this Master Confirmation or the Agreement shall inure to the
benefit of any permitted assignee of GS&Co.
In no event shall the number of Shares deliverable under these Net Share
Settlement procedures (equal to the number of Settlement Shares (including,
without duplication, any Unregistered Shares) and any Make-whole Shares), be
greater than an amount of Shares equal to (i) the Reserved Shares minus (ii) 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 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 that would be required to be delivered to third
parties if Counterparty elected Net Share Settlement for all other 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.