-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, BMMwLvHN09QYGdoW1fwSvLFLiGGJibOL/T4HdPqq6SkMkC7kFJrEkXCZIOCzXrr/ SWkt6P68DaX9canOx81wnQ== 0000950123-06-012010.txt : 20060927 0000950123-06-012010.hdr.sgml : 20060927 20060927142942 ACCESSION NUMBER: 0000950123-06-012010 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20060927 DATE AS OF CHANGE: 20060927 GROUP MEMBERS: ARTHUR STEINBERG, ESQ. GROUP MEMBERS: WOOD RIVER CAPITAL MANAGEMENT L.L.C. GROUP MEMBERS: WOOD RIVER PARTNERS OFFSHORE, LTD. GROUP MEMBERS: WOOD RIVER PARTNERS, L.P. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ENDWAVE CORP CENTRAL INDEX KEY: 0001118941 STANDARD INDUSTRIAL CLASSIFICATION: RADIO & TV BROADCASTING & COMMUNICATIONS EQUIPMENT [3663] IRS NUMBER: 954333817 STATE OF INCORPORATION: DE FISCAL YEAR END: 1130 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-60995 FILM NUMBER: 061110869 BUSINESS ADDRESS: STREET 1: 776 PALOMAR AVE. CITY: SUNNYVALE STATE: CA ZIP: 94085 BUSINESS PHONE: (408)522-3141 MAIL ADDRESS: STREET 1: 776 PALOMAR AVE. CITY: SUNNYVALE STATE: CA ZIP: 94085 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: WOOD RIVER ASSOCIATES,L.L.C. CENTRAL INDEX KEY: 0001334063 IRS NUMBER: 000000000 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: C/O WOOD RIVER CAPITAL MANAGEMENT, LLC STREET 2: 44 MONTGOMERY STREET, SUITE 3700 CITY: SAN FRANCISCO STATE: CA ZIP: 94104 BUSINESS PHONE: 415-982-1001 MAIL ADDRESS: STREET 1: C/O WOOD RIVER CAPITAL MANAGEMENT, LLC STREET 2: 44 MONTGOMERY STREET, SUITE 3700 CITY: SAN FRANCISCO STATE: CA ZIP: 94104 SC 13D/A 1 y25418sc13dza.txt SC 13D/A UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 2)(1) ENDWAVE CORPORATION (Name of Issuer) Common Stock (Title of Class of Securities) 29264A206 (CUSIP Number) ARTHUR STEINBERG, ESQ., SOLELY IN HIS CAPACITY AS THE RECEIVER AS DESCRIBED HEREIN, AND NOT IN HIS INDIVIDUAL CAPACITY, C/O KAYE SCHOLER LLP 425 PARK AVENUE NEW YORK, NEW YORK 10022 (212) 836-8000 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) September 26, 2006 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. [ ] NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Section 240.13d-7 for other parties to whom copies are to be sent. (1) The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 (the "Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). CUSIP NO. 29264A206 - -------------------------------------------------------------------------------- 1. NAME OF REPORTING PERSONS: Wood River Capital Management, L.L.C. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY): - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS): (A) [X] (B) [ ] - -------------------------------------------------------------------------------- 3. SEC USE ONLY: - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS (SEE INSTRUCTIONS): AF - -------------------------------------------------------------------------------- 5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E): [X] - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER: -0- NUMBER OF ----------------------------------------------------------------- SHARES 8. SHARED VOTING POWER: BENEFICIALLY 2,122,176 OWNED BY ----------------------------------------------------------------- EACH 9. SOLE DISPOSITIVE POWER: REPORTING -0- PERSON ----------------------------------------------------------------- WITH 10. SHARED DISPOSITIVE POWER: 2,122,176 - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 2,122,176 - -------------------------------------------------------------------------------- 12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS): [ ] - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 18.6% - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON (SEE INSTRUCTIONS): IA, OO - -------------------------------------------------------------------------------- Page 2 of 16 Pages CUSIP NO. 29264A206 - -------------------------------------------------------------------------------- 1. NAME OF REPORTING PERSONS: Wood River Associates, L.L.C. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY): - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS): (A) [X] (B) [ ] - -------------------------------------------------------------------------------- 3. SEC USE ONLY: - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS (SEE INSTRUCTIONS): AF - -------------------------------------------------------------------------------- 5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E): [X] - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER: -0- NUMBER OF ----------------------------------------------------------------- SHARES 8. SHARED VOTING POWER: BENEFICIALLY 1,980,071 OWNED BY ----------------------------------------------------------------- EACH 9. SOLE DISPOSITIVE POWER: REPORTING -0- PERSON ----------------------------------------------------------------- WITH 10. SHARED DISPOSITIVE POWER: 1,980,071 - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 1,980,071 - -------------------------------------------------------------------------------- 12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS): [ ] - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 17.3% - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON (SEE INSTRUCTIONS): HC, OO - -------------------------------------------------------------------------------- Page 3 of 16 Pages CUSIP NO. 29264A206 - -------------------------------------------------------------------------------- 1. NAME OF REPORTING PERSONS: Wood River Partners, L.P. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY): - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS): (A) [X] (B) [ ] - -------------------------------------------------------------------------------- 3. SEC USE ONLY: - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS (SEE INSTRUCTIONS): WC - -------------------------------------------------------------------------------- 5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E): [X] - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER: 1,980,071 NUMBER OF ----------------------------------------------------------------- SHARES 8. SHARED VOTING POWER: BENEFICIALLY -0- OWNED BY ----------------------------------------------------------------- EACH 9. SOLE DISPOSITIVE POWER: REPORTING 1,980,071 PERSON ----------------------------------------------------------------- WITH 10. SHARED DISPOSITIVE POWER: -0- - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 1,980,071 - -------------------------------------------------------------------------------- 12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS): [ ] - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 17.3% - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON (SEE INSTRUCTIONS): PN - -------------------------------------------------------------------------------- Page 4 of 16 Pages CUSIP NO. 29264A206 - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS: Wood River Partners Offshore, Ltd. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY): - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS): (A) [X] (B) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY: - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS (SEE INSTRUCTIONS): WC - -------------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E): [X] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION: Cayman Islands - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER: 2,122,176 NUMBER OF ----------------------------------------------------------------- SHARES 8 SHARED VOTING POWER: BENEFICIALLY -0- OWNED BY ----------------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER: REPORTING 2,122,176 PERSON ----------------------------------------------------------------- WITH 10 SHARED DISPOSITIVE POWER: -0- - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 2,122,176 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS): [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 18.6% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS): CO - -------------------------------------------------------------------------------- Page 5 of 16 Pages CUSIP NO. 29264A206 - -------------------------------------------------------------------------------- 1. NAME OF REPORTING PERSONS: Arthur Steinberg, Esq., solely as the Receiver of the Wood River Entities (as defined herein) and not in his individual capacity (1) I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY): - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS): (A) [ ] (B) [ ] - -------------------------------------------------------------------------------- 3. SEC USE ONLY: - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS (SEE INSTRUCTIONS): OO - -------------------------------------------------------------------------------- 5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E): [ ] - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A. - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER: -0- NUMBER OF ----------------------------------------------------------------- SHARES 8. SHARED VOTING POWER: BENEFICIALLY 4,102,247(1) OWNED BY ----------------------------------------------------------------- EACH 9. SOLE DISPOSITIVE POWER: REPORTING -0- PERSON ----------------------------------------------------------------- WITH 10. SHARED DISPOSITIVE POWER: 4,102,247(1) - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 4,102,247(1) - -------------------------------------------------------------------------------- 12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS): [ ] - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 35.9%(1) - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON (SEE INSTRUCTIONS): OO (Receiver) - -------------------------------------------------------------------------------- (1) See Introduction and Item 5 herein. Page 6 of 16 Pages INTRODUCTION On October 13, 2005, Arthur Steinberg, Esq. was appointed receiver of Wood River Capital Management, L.L.C., Wood River Associates, L.L.C., Wood River Partners, L.P., Wood River Partners Offshore, Ltd. and their respective subsidiaries, successors and assigns (collectively, the "Wood River Entities") pursuant to the Order described in Item 4. A Schedule 13D was previously filed with the Securities and Exchange Commission (the "Commission") on October 7, 2005 by the Wood River Entities and John H. Whittier purporting to reflect the acquisition and beneficial ownership of certain shares of Endwave Corporation by the Wood River Entities and Mr. Whittier as of such date (the "Existing Schedule 13D"). A Schedule 13D was filed by Arthur Steinberg, Esq., solely in his capacity as Receiver of the Wood River Entities and not in his individual capacity (the "Receiver"), and the Wood River Entities (collectively with the Receiver, the "Reporting Persons") on October 24, 2005, primarily to reflect that the Receiver may be deemed the beneficial owner of shares of Common Stock of Endwave Corporation due to being appointed Receiver and his duties and responsibilities as the Receiver (the "Original Schedule 13D"). On December 7, 2005, the Receiver and the Wood River Entities filed Amendment Number 1 to the Original Schedule 13D (the "First Amendment") to amend and restate the information in the Original Schedule 13D. This Amendment Number 2 to the Original Schedule 13D and the First Amendment (the "Second Amendment," and together with the Original Schedule 13D and the First Amendment, are collectively referred to herein as this "Schedule 13D") amends and restates in its entirety the Original Schedule 13D and the First Amendment and amends the information in the Existing Schedule 13D solely to the extent it relates to the Wood River Entities or the shares of Common Stock (as defined herein) of Endwave Corporation that may be deemed to be beneficially owned thereby. This Second Amendment is being filed to correct the number and percentage of shares of Common Stock of Endwave Corporation that may be deemed to be beneficially owned as of October 24, 2005 by the Reporting Persons from those set forth in the Original Schedule 13D and the First Amendment and the Existing Schedule 13D, based on additional information obtained by the Receiver since the date of the filing of the First Amendment, and to reflect the reduction of beneficial ownership of shares of Common Stock of Endwave Corporation in connection with the settlement of the Options (as defined and described in Item 6 hereof) by the Receiver. Since the date of the filing of the Original Schedule 13D (i.e., October 24, 2005), the Reporting Persons have not become the beneficial owner of any additional shares of Common Stock of Endwave Corporation or engaged in any transactions in the shares of Common Stock of Endwave Corporation (other than the reduction of beneficial ownership of shares of Common Stock of Endwave Corporation in connection with the settlement of the Options (as defined and described in Item 6 hereof) by the Receiver). Mr. Whittier is not a Reporting Person with respect to this Schedule 13D and the information contained herein relating to him is solely based on the information contained in the Existing Schedule 13D. The information contained in this Schedule 13D regarding the Wood River Entities and the shares of Common Stock of Endwave Corporation that may be beneficially owned by the Reporting Persons is primarily based upon a review of certain brokerage account statements and account information delivered prior to the date hereof to the Receiver by certain brokers for the Wood River Entities, as the Receiver has not yet completed reviewing other information and the books, records and accounts of the Wood River Entities, and, hence, has not been able to (i) determine, verify or confirm the amount of shares of Common Stock of Endwave Corporation that may be beneficially owned by the Reporting Persons or the other information contained herein or (ii) complete certain parts of this Schedule 13D. See Item 4. The Reporting Persons expressly disclaim knowledge as to the completeness and the accuracy of the information contained in this Schedule 13D. The Receiver is still in the process of exploring whether or not any other brokers or nominees are holding additional shares of Common Stock of Endwave Corporation with respect to which the Wood River Entities and the Receiver may be deemed to be the beneficial owners. Similarly, the Receiver is still in the process of (i) determining whether any of the Wood River Entities have entered into any type of agreement, contract, trust or other arrangement pursuant to which the Receiver and the Wood River Entities may be deemed the beneficial owner of more or fewer shares of Common Stock of Endwave Corporation than indicated herein and (ii) determining and correcting the allocation of shares of Endwave Corporation Common Stock held by the Wood River Entities as of October 24, 2005 among the Wood River Entities. The filing of this Schedule 13D (or any amendment hereto) shall not be construed as an admission that any Reporting Person is, for the purposes of Section 13(d) or 13(g) of the Securities Exchange Act of 1934, as amended, the beneficial owner of any securities covered by this Schedule 13D. The Receiver is in Page 7 of 16 Pages the process of confirming and verifying the facts and circumstances stated in this Schedule 13D, and therefore, all statements made herein are made based upon the Receiver's current information and belief and subject to confirmation, correction, change and future amendment. The Receiver may be deemed to share beneficial ownership of the shares of Common Stock of Endwave Corporation reported herein due to being appointed the Receiver of the Wood River Entities pursuant to the Order described in Item 4. Item 1. Security and Issuer. This Schedule 13D relates to shares of common stock, par value $0.001 per share (the "Common Stock"), of Endwave Corporation, a Delaware corporation (the "Issuer"). The address of the principal executive office of the Issuer is 776 Palomar Avenue, Sunnyvale, CA 94085. Item 2. Identity and Background. The persons filing this statement and the persons enumerated in Instruction C of Schedule 13D and, where applicable, their respective places of organization, general partners, directors, executive officers and controlling persons, and the information regarding them, are as follows: (a) Wood River Capital Management, L.L.C. (the "Adviser"), Wood River Associates, L.L.C. (the "General Partner"), Wood River Partners, L.P. (the "Partnership"), Wood River Partners Offshore, Ltd. (the "Offshore Fund"), David Bree ("Bree"), Peter J. O'Dwyer ("Dwyer"), and Don Seymour ("Seymour," and collectively with Bree and Dwyer, the "Offshore Fund Directors"). This Schedule 13D is also being filed on behalf of Arthur Steinberg, Esq., solely in his capacity as the Receiver of the Wood River Entities, pursuant to the Order described in Item 4, and not in his individual capacity. (b) The business address of each Reporting Person, except the Offshore Fund and the Offshore Fund Directors is: c/o Kaye Scholer LLP 425 Park Avenue, New York, New York 10022 The business address of the Offshore Fund is: c/o Campbell's Corporate Services P.O. Box 268GT Scotiabank Building, Georgetown Grand Cayman, Cayman Islands The business address of Bree and Seymour is: P.O. Box 31910 Ansbacher House George Town Grand Cayman, Cayman Islands The business address of Dwyer is: 26 Pembroke Street Upper Dublin 2, Ireland Page 8 of 16 Pages (c) Present principal occupation or employment of the Reporting Persons and the name, principal business and address of any corporation or other organization in which such employment is conducted: The Adviser is an investment adviser to the Offshore Fund and is the management company for the Partnership. The Partnership and the Offshore Fund are principally engaged in the business of making investments. The General Partner is the general partner of the Partnership. The business address of the Adviser, the Partnership, the Offshore Fund and the General Partner are set forth above. Bree's principal occupation is a Managing Director at dms Management Ltd., a company management firm, and his business address is set forth above. O'Dwyer's principal occupation is a Managing Director at Hainault Capital Limited, a business advisory company, and his business address is set forth above. Seymour's principal occupation is a Managing Director at dms Management Ltd., a company management firm, and his business address is set forth above. The Receiver's principal occupation is an attorney and partner at Kaye Scholer LLP, a law firm, and his business address is set forth above. (d), (e) During the last five years, none of the Wood River Entities have been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). The Wood River Entities and John H. Whittier (and their officers, agents, servants, attorneys, successors-in-interest and certain others) are presently a party to a civil proceeding of a judicial or administrative body of competent jurisdiction which has resulted in the Wood River Entities and Mr. Whittier (and their officers, agents, servants, attorneys, successors-in-interest and certain others) becoming subject to a preliminary injunction (pending entry of a final judgment) enjoining future violations of and prohibiting and mandating activities subject to, Federal securities laws. See Item 4 and the Order that is an Exhibit hereto. Specifically, the Wood River Entities and Mr. Whittier are preliminarily enjoined from violating, directly or indirectly: (1)...Section 10(b) of the Securities Exchange Act of 1934 (the "Exchange Act") [15 U.S.C. Sec. 78j(b)] and Rule 10b-5 promulgated thereunder [17 C.F.R. Sec. 240.10b-5], by using any means or instrumentality of interstate commerce, or of the mails, or of any facility of any national securities exchange, in connection with the purchase or sale of any security: (a) to employ any device, scheme, or artifice to defraud; (b) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; or (c) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person; (2)...Section 17(a) of the Securities Act of 1933 [15 U.S.C. Sec. 77q(a)], by, in the offer or sale of any security using any means or instruments of transportation or communication in interstate commerce or by use of the mails, directly or indirectly: (a) to employ any device, scheme, or artifice to defraud; (b) to obtain money or property by means of any untrue statement of a material fact or any omission of a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; or (c) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser; (3)...Section 13(d) of the Exchange Act [15 U.S.C. Sec. 78m(d)] and Rules 13d-1 and 13d-2 thereunder [17 C.F.R. Sec. 240.13d-1 and 240.13d-2] by failing to: (a) within Page 9 of 16 Pages ten days of acquiring beneficial ownership of more than five percent of any equity security registered pursuant to Section 12 of the Exchange Act: (i) file a complete and accurate schedule 13D with the Commission; and (ii) send to the issuer of such security, and each exchange where such security is traded, a statement describing the purchases and other information; or (b) amend a Schedule 13D if there is any material change in the beneficial ownership position in the security noted therein, or any other facts set forth in a previously filed Schedule 13D; [and] (4)...Section 16(a) of the Exchange Act [15 U.S.C. Sec. 78p(a)], and Rules 16a-2 and 16a-3 thereunder [17 C.F.R. Sec. 240.16a-2 and 240.16a-3], by failing to file timely with the Commission (and, if such security is registered on a national securities exchange, also with the exchange), as a direct or indirect beneficial owner of more than 10 percent of any class of any equity security (other than an exempted security) which is registered pursuant to Section 12 of the Exchange Act [15 U.S.C. Sec. 78l], or as a director or an officer of the issuer of such security: (a) at the time of the registration of such security on a national securities exchange or by the effective date of a registration statement filed pursuant to Section 12(g) of the Exchange Act [15 U.S.C. Sec. 78l(g)], or within ten days after becoming such a beneficial owner, director, or officer, a statement on Form 3 [17 C.F.R. Sec. 249.103], Initial Statement of Beneficial Ownership of Securities, of the amount of all equity securities of such issuer of which he is the beneficial owner; (b) within ten days after the close of each calendar month thereafter, if there has been a change in such ownership during such month, a statement on Form 4 [17 C.F.R. Sec. 249.104], Statement of Changes in Beneficial Ownership of Securities, indicating ownership at the close of the calendar month and such changes in ownership as have occurred during such calendar month; and (c) within forty-five days of the issuer's year-end, a statement on Form 5 [17 C.F.R. Sec. 249.105], Annual Statement of Beneficial Ownership of Securities, disclosing, among other things, all holdings and transactions that should have been, but were not, reported on Forms 3, 4, or 5 during the most recent fiscal year. In addition, the Adviser, the General Partner and Mr. Whittier (and their officers, agents, servants, attorneys, successors-in-interest and certain others) are preliminarily enjoined (pending receipt of a final judgment) from: by use of the mails or any means or instrumentality of interstate commerce: (1) employing any device, scheme, or artifice to defraud; and/or (2) engaging in any act, practice or course of business which would operate as a fraud or deceit upon any client or prospective client, in violation of Section 206(1) and (2) of the Investment Advisers Act of 1940 [15 U.S.C. Sec. 80b-6(1) and (2)]. During the last five years, none of the Receiver or any of the Offshore Fund Directors have been (a) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction which resulted in any of them becoming subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or State securities laws or finding any violation with respect to such laws. (f) The Adviser is a Delaware entity. The General Partner is a Delaware entity. The Partnership is a Delaware entity. The Offshore Fund is a Cayman Islands entity. Bree is a citizen of the United States. O'Dwyer is a citizen of Ireland. Seymour is a citizen of the Cayman Islands. The Receiver is a citizen of the United States. Item 3. Source and Amount of Funds and Other Consideration. Page 10 of 16 Pages See Item 4. The Receiver may be deemed to share beneficial ownership of the shares of Common Stock reported herein due to being appointed the Receiver of the Wood River Entities pursuant to the Order. The Wood River Entities hold the shares of Common Stock reported herein. See Item 5. Item 4. Purpose of Transaction. The Existing Schedule 13D stated that the Wood River Entities acquired the Common Stock for investment purposes. The Reporting Persons acknowledge that this Schedule 13D is incomplete. See the Introduction hereof. Nonetheless, subject to the Introduction hereof, they are filing now to avoid further delay in (i) correcting the amount of Common Stock that each of them currently believes it held as of October 24, 2005, based on additional information obtained by the Receiver since the date of the filing of the First Amendment (i.e, October 24, 2005) (provided, however, that the allocation of shares of Common Stock held by the Wood River Entities as of October 24, 2005 among the Wood River Entities remains subject to further review and possible correction) and (ii) reflecting the reduction of beneficial ownership of shares of Common Stock in connection with the settlement of the Options (as described and defined in Item 6 hereof) by the Receiver. Pursuant to an order of the United States District Court for the Southern District of New York (the "Court"), dated October 13, 2005, in connection with the action entitled Commission v. the Adviser, the General Partner, John Hunting Whittier, the Partnership and the Offshore Fund (the "Order"), Arthur Steinberg, Esq., was appointed as the Receiver of the Wood River Entities and granted the powers and authority described in the Order. Due to the powers and authority conveyed upon the Receiver by the Order, the Receiver may be deemed to share beneficial ownership of the shares of Common Stock reported herein. See Item 5. Pursuant to Section 13 of the Order, the Receiver is authorized, empowered and directed to perform, among others, the following duties and responsibilities at all times with a view towards, first, locating, preserving and protecting all of the Wood River Entities' assets, and second, maximizing returns to investors in the Wood River Entities: (i) locate and take immediate possession and control of all assets of every kind whatsoever and wherever located owned by, controlled by, belonging to, or traceable to the Wood River Entities, whether tangible, intangible, real, equitable, personal, realized, unrealized or otherwise (the "Assets"), and to hold, manage, and administer such Assets as is required to comply with and effectuate the directives of the Order; (ii) assume control of, and be named as authorized signatory for, all accounts at any bank, brokerage firm, or financial institution which has possession, custody or control of any Assets (the "Accounts"); (iii) manage, retain, sell and/or liquidate the Accounts as necessary and appropriate to comply with and effectuate the directives of the Order; (iv) take all reasonable and necessary actions to manage, maintain, and wind-down business operations of the Wood River Entities, including making legally required payments to creditors, employees and agents of the Wood River Entities; (v) communicate with vendors, investors, and others, as required to comply with and effectuate the purposes of the Order; (vi) make or authorize such payments and disbursements from the Assets, and incur, or authorize the incurrence of such expenses and make, or authorize the making of, such agreements as the Receiver deems reasonable and necessary in discharging the Receiver's duties; and (vii) develop a plan with respect to the retention, liquidation, and/or distribution of all remaining Assets to investors in the Wood River Entities. Accordingly, the Reporting Persons may from time-to-time (i) acquire additional shares of Common Stock (subject to availability at prices deemed favorable) in the open market, in privately negotiated transactions or otherwise, or (ii) dispose of shares of Common Stock at prices deemed favorable in the open market, in privately negotiated transactions or otherwise, in each case in accordance with applicable law. A copy of the Order was attached to the Original Schedule 13D and is hereby incorporated herein by this reference. Except to the extent that the matters discussed in this Schedule 13D may be deemed a plan or proposal, none of the Reporting Persons has any plans or proposals which relate to, or could result in: (a) the acquisition by any person of additional securities of the Issuer, or the disposition of securities of the Issuer; Page 11 of 16 Pages (b) an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Issuer or any of its subsidiaries; (c) a sale or transfer of a material amount of assets of the Issuer or of any of its subsidiaries; (d) any change in the present board of directors or management of the Issuer, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the board; (e) any material change in the present capitalization or dividend policy of the Issuer; (f) any other material change in the Issuer's business or corporate structure; (g) changes in the Issuer's charter, by-laws or instruments corresponding thereto or other actions that may impede the acquisition of control of the Issuer by any person; (h) causing a class of securities of the Issuer to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (i) a class of equity securities of the Issuer becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act; or (j) any action similar to any of those enumerated above. The Reporting Persons reserve the right to change their intentions with respect to all matters referred to in this Item 4. Item 5. Interest in Securities of the Issuer. (a) The Adviser may be deemed to beneficially own 2,122,176 shares of Common Stock, which constitute approximately 18.6% of the outstanding shares of Common Stock (based on 11,429,793 shares of Common Stock outstanding as of July 24, 2006, according to the Issuer's most recent Form 10-Q filed August 7, 2006). The General Partner may be deemed to beneficially own 1,980,071 shares of Common Stock, which constitute approximately 17.3% of the outstanding shares of Common Stock (based on 11,429,793 shares of Common Stock outstanding as of July 24, 2006, according to the Issuer's most recent Form 10-Q filed August 7, 2006). The Partnership may be deemed to beneficially own 1,980,071 shares of Common Stock, which constitute approximately 17.3% of the outstanding shares of Common Stock (based on 11,429,793 shares of Common Stock outstanding as of July 24, 2006, according to the Issuer's most recent Form 10-Q filed August 7, 2006). The Offshore Fund may be deemed to beneficially own 2,122,176 shares of Common Stock, which constitute approximately 18.6% of the outstanding shares of Common Stock (based on 11,429,793 shares of Common Stock outstanding as of July 24, 2006, according to the Issuer's most recent Form 10-Q filed August 7, 2006). The Offshore Fund Directors may be deemed to beneficially own 2,122,176 shares of Common Stock, which constitute approximately 18.6% of the outstanding shares of Common Stock (based on 11,429,793 shares of Common Stock outstanding as of July 24, 2006, according to the Issuer's most recent Form 10-Q filed August 7, 2006). Pursuant to the Order described in Item 4, the Receiver may be deemed to beneficially own 4,102,247 shares of Common Stock, which constitute approximately 35.9% of the outstanding shares of Common Stock (based on 11,429,793 shares of Common Stock outstanding as of July 24, 2006, according to the Issuer's most recent Form 10-Q filed August 7, 2006). (b) The Adviser is an investment adviser of the Offshore Fund and may be deemed to have shared power to vote or to direct the vote and shared power to dispose or direct the disposition of 2,122,176 shares of Common Stock that may be deemed to be beneficially owned by the Offshore Fund, which constitute approximately 18.6% of the outstanding shares of Common Stock (based on 11,429,793 shares of Common Stock outstanding as of July 24, 2006, according to the Issuer's most recent Form 10-Q filed August 7, 2006). The General Partner is the general partner of the Partnership and may be deemed to have shared power to vote or to direct the vote and shared power to dispose or direct the disposition of the 1,980,071 shares of Common Stock that may be deemed to be beneficially owned by the Partnership, which constitute approximately 17.3% of the outstanding shares of Common Stock (based on 11,429,793 shares of Page 12 of 16 Pages Common Stock outstanding as of July 24, 2006, according to the Issuer's most recent Form 10-Q filed August 7, 2006). The Partnership has the sole power to vote or to direct the vote and the sole power to dispose or direct the disposition of the 1,980,071 shares of Common Stock, which constitute approximately 17.3% of the outstanding shares of Common Stock (based on 11,429,793 shares of Common Stock outstanding as of July 24, 2006, according to the Issuer's most recent Form 10-Q filed August 7, 2006). The Offshore Fund has the sole power to vote or to direct the vote and the sole power to dispose or direct the disposition of the 2,122,176 shares of Common Stock, which constitute approximately 18.6% of the outstanding shares of Common Stock (based on 11,429,793 shares of Common Stock outstanding as of July 24, 2006, according to the Issuer's most recent Form 10-Q filed August 7, 2006). The Offshore Fund Directors may be deemed to have the shared power to vote or to direct the vote and the shared power to dispose or direct the disposition of the 2,122,176 shares of Common Stock, which constitute approximately 18.6% of the outstanding shares of Common Stock (based on 11,429,793 shares of Common Stock outstanding as of July 24, 2006, according to the Issuer's most recent Form 10-Q filed August 7, 2006). The Receiver may be deemed to have shared power to vote or to direct the vote and shared power to dispose or direct the disposition of the 4,102,247 shares of Common Stock that may be deemed to be beneficially owned by the Wood River Entities, which constitute approximately 35.9% of the outstanding shares of Common Stock (based on 11,429,793 shares of Common Stock outstanding as of July 24, 2006, according to the Issuer's most recent Form 10-Q filed August 7, 2006). (c) On September 26, 2006, the settlement of the Options was completed by the Receiver, and the Partnership, the General Partner and the Receiver may no longer be deemed to be the beneficial owners of the 140,100 shares of Common Stock formerly covered thereby. See Item 6. See the Reporting Persons' response to Item 4. Arthur Steinberg, Esq. was appointed the Receiver for the Wood River Entities pursuant to the Order on October 13, 2005. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. The General Partner is the general partner of the Partnership pursuant to the Partnership's agreement of limited partnership. The Adviser is the manager of the Offshore Fund pursuant to an investment advisory agreement. The agreement of limited partnership gives the General Partner the authority, among other things, to invest the funds of the Partnership in the Common Stock, to vote and dispose of Common Stock and to file this Schedule on behalf of the Partnership. The investment advisory agreement gives the Adviser the authority, among other things, to invest the funds of the Offshore Fund in the Common Stock, to vote and dispose of Common Stock and to file this Schedule on behalf of the Offshore Fund. Pursuant to the Partnership's agreement of limited partnership and the Adviser's investment advisory agreement with the Offshore Fund, the Adviser and the General Partner are entitled to allocations based on assets under management and realized and unrealized gains from the Partnership and the Offshore Fund, respectively. The General Partner and the Adviser are filing this Schedule 13D jointly with the other Reporting Persons, but not as a member of a group, within the meaning of Rule 13d-5(b) under the Exchange Act, except as hereinafter described, but each expressly disclaims membership in a group with any other person, other than (x) in the case of the General Partner, with the Partnership, and (y) in the case of the Adviser, the Offshore Fund. Each of the Receiver, the Partnership and the Offshore Fund is filing this Schedule 13D jointly with the other Reporting Persons, but not as a member of a group, and each expressly disclaims membership in a group (except as described above). In addition, the filing of this Schedule 13D on behalf of the Partnership or the Offshore Fund should not be construed as an admission that either of them is, and each of them disclaims that it is, the beneficial owner, as defined in Rule 13d-3 under the Exchange Act, of any of the securities covered by this Schedule 13D. Page 13 of 16 Pages For a description of the Order see Item 4. The Order was attached as an Exhibit to the Original Schedule 13D and is incorporated herein by this reference. On January 20, 2004, the Partnership entered into a Special Expiration Price Options Master Agreement (the "Options") with CDC Securities, as agent for CDC Derivatives, Inc. (collectively, "CDCS"). The Options had a stated expiration date of October 11, 2006. Pursuant to the Options, the Partnership had the right to exercise one or more special expiration price options on the terms and conditions set forth therein. The Options provided the Partnership with the right to acquire various securities, including 140,100 shares of Common Stock. These 140,100 shares of Common Stock were included within the number and percentage of the shares of Common Stock that may be deemed to be beneficially owned by the Partnership, the General Partner and the Receiver in the Original Schedule 13D and the First Amendment. On September 26, 2006, the Receiver completed the settlement of the Options in a transaction with CDCS. As a consequence, the Partnership, the General Partner and the Receiver may no longer be deemed to be the beneficial owner of the 140,100 shares of Common Stock formerly covered by the Options and such shares are no longer included within the number and percentage of shares of Common Stock which may be deemed to be beneficially owned by the Partnership, the General Partner or the Receiver. See Item 7. Item 7. Material to be Filed as Exhibits. (a) Joint Filing Agreement, dated September 26, 2006, among Wood River Capital Management, L.L.C., Wood River Associates, L.L.C., Wood River Partners, L.P., Wood River Partners Offshore, Ltd. and Arthur Steinberg, Esq. (b) Order of the United States District Court for the Southern District of New York, dated October 13, 2005 incorporated by reference to Exhibit 1 to the Schedule 13D filed with the Securities and Exchange Commission by Wood River Capital Management, L.L.C., Wood River Associates, L.L.C., Wood River Partners, L.P., Wood River Partners Offshore, Ltd. and Arthur Steinberg, Esq. on October 24, 2005. (c) Special Expiration Price Options Master Agreement, dated January 20, 2004, between Wood River Partners, L.P. and CDC Securities, as agent for CDC Derivatives, Inc. Page 14 of 16 Pages SIGNATURE Subject to the information set forth in the Introduction hereof, after reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and current. September 26, 2006 ARTHUR STEINBERG, ESQ., as the Receiver of the Wood River Entities, to the extent contemplated by the Order, but not in his individual capacity By: /s/ Arthur Steinberg ------------------------------------------- Arthur Steinberg, as the Receiver of the Wood River Entities, to the extent contemplated by the Order, but not in his individual capacity Page 15 of 16 Pages INDEX TO EXHIBITS
Exhibit - ------- 1 Joint Filing Agreement, dated September 26, 2006, among Wood River Capital Management, L.L.C., Wood River Associates, L.L.C., Wood River Partners, L.P., Wood River Partners Offshore, Ltd. and Arthur Steinberg, Esq. 2 Special Expiration Price Options Master Agreement, dated January 20, 2004, between Wood River Partners, L.P. and CDC Securities, as agent for CDC Derivatives, Inc.
Page 16 of 16 Pages EX-99.1 2 y25418exv99w1.txt JOINT FILING AGREEMENT EXHIBIT 1 Pursuant to Rule 13d-1(k)(1) under the Securities Exchange Act of 1934, the undersigned hereby agree that only one statement containing the information required by Schedule 13D (or any amendment thereof) need be filed on their behalf with respect to the beneficial ownership of any equity securities of Endwave Corporation or any subsequent acquisitions or dispositions of equity securities of Endwave Corporation by any of the undersigned. Dated: September 26, 2006 ARTHUR STEINBERG, ESQ., as the Receiver of Wood River Capital Management, L.L.C., Wood River Associates, L.L.C., Wood River Partners, L.P. and Wood River Partners Offshore, Ltd., to the extent contemplated by the Order dated October 13, 2005, entered in the Receivership case in the United States District Court for the Southern District of New York, and not in his individual capacity By: /s/ Arthur Steinberg ------------------------------------------- Name: Arthur Steinberg Title: Receiver EX-99.2 3 y25418exv99w2.txt SPECIAL EXPIRATION PRICE OPTIONS MASTER AGREEMENT Exhibit 2 Special Expiration Price Options Master Agreement CDC Securities ("CDCS"), as agent for CDC Derivatives Inc., a United States Broker-Dealer that is registered with and regulated by the U.S. Securities and Exchange Commission (the "Issuer"), anticipates entering into one or more Special Expiration Price Options ("Options" or "Special Expiration Price Options") with the party specified as Purchaser on the signature page hereto (the "Purchaser" or "you"). This Master Agreement sets forth the terms and conditions under which the Issuer will sell such Options to you. Each Special Expiration Price Option you purchase will be confirmed by a transaction confirmation (each a "Confirmation") that will contain the specific terms of that particular option, as set forth in greater detail in Section 2 below. Any Special Expiration Price Option you purchase will be subject to all of the general terms and conditions set forth in this Master Agreement, all the specific terms contained in the related Confirmation and the Client Agreement you enter with CDCS. In the event of any conflict between the terms of this Master Agreement and the Client Agreement, the terms of this Master Agreement shall govern. 1. ORAL AND WRITTEN AGREEMENTS ARE BINDING. We may agree orally or in writing to enter into, exercise, or amend any Option, and such oral or written agreements will be binding on both of us, subject to the qualifications set forth in Section 2 below. Any other amendments or modifications must be in writing as specified in Section 25. 2. CONFIRMATIONS, WORKSHEETS AND PERIODIC REPORTS. CDCS, as agent for Issuer, will deliver to you by fax or email a confirmation, and a worksheet each time a Special Expiration Price Option is established, or modified as set forth in Section 17 resulting in a change to either the Special Expiration Price, Special Expiration Allowance, any Exercise Price, the Expiration Date, Amortizable Premium, Unamortizable Premium, or Contingent Premium, detailing the Option Terms and any additional terms with respect to a relevant Option that you and Issuer have agreed upon. You will also be sent a Confirmation and a worksheet following any full or partial exercise, or when the Option is cashed-in, canceled, terminated or expires. If you believe that such confirmation does not accurately reflect the agreement between us, you must notify CDCS as agent for Issuer immediately, and in any event before the next Trading Day. ABSENT SUCH TIMELY NOTIFICATION, THE CONFIRMATION AND IF, APPLICABLE, WORKSHEET WILL BE DEEMED TO ACCURATELY REFLECT OUR AGREEMENT. In the event of a discrepancy or alleged discrepancy, you and Issuer agree that the taped or electronic records of your communications maintained by Issuer or its agent (and made reasonably available to you) will constitute dispositive evidence of the agreement between you and Issuer. CDCS, as agent for Issuer, also will deliver to you periodic reports that reflect the Market Value of the Option based on the prices determined in accordance with the method described in Section 7(b) below in the Primary Trading Market for the Reference Asset on the close of business on the current Trading Day, gains and losses on the Option, current strike prices, Amortizable Premium, Unamortizable Premium, and other relevant information relating to the period covered by the report. If the Reference Asset is a basket or index, the periodic report will include prices of each instrument in the basket or index and the weight of each instrument 1 relative to the basket or index. Copies of such periodic reports maintained by CDCS will be the official record of activity of the Option, unless you promptly notify CDCS, as agent for Issuer, of any discrepancies, in which case the official record may be supplemented as required to resolve any such discrepancy. 3. SPECIFIC TERMS WE WILL AGREE ON WHEN ENTERING INTO AN OPTION. When entering into an Option you and we will agree on the following terms (the "Option Terms"): (a) The "Reference Asset", which is the stipulated financial instrument(s) underlying an Option, and the number of units of such Reference Asset. The Reference Asset could be, but is not limited to, U.S. or foreign equity securities, fixed income instruments, currencies, indices, baskets of financial instruments, commodities, derivative instruments, or any combination of the aforementioned. In the event of a Pair Option (as defined below), the Reference Asset will be divided into two parts, one consisting of the financial instruments underlying the call portion of the Pair Option (the "Pair Long Portfolio") and one underlying the put portion of the Pair Option (the "Pair Short Portfolio"). (b) Whether the relevant Special Expiration Price Option shall constitute a right to buy (such right a "call", and the Option a "Call Option"), sell (such right a "put" and the Option a "Put Option"), or simultaneously buy and sell (such Option a "Pair Option") units of the Reference Asset; (c) Whether the Option is "American Style" that may be exercised on any Trading Day prior to the Scheduled Expiration Date, or "European Style", that may only be exercised on the Scheduled Expiration Date. Any Option, whether American Style or European Style, will be cancelled before its full term in the event of a Special Expiration Event, absent a Mark-to-Market as described in Section 7 below, and may be terminated following an Early Termination Event. Unless otherwise agreed at the time we enter into the Option, the Option shall be American Style. (d) The "Exercise Price", which is the reference price against which the value of the Option will be measured upon exercise, cash-in, expiration, or termination. The Exercise Price of the Option will be either (i) the average net market price (net of any fees) at which Issuer purchases or sells the underlying Reference Asset or derivative instrument in establishing Issuer's hedge positions for the Option, or (ii) a price determined pursuant to a method agreed to between you and Issuer at the time of entering into the Option. If the Reference Asset underlying the Option is a basket or index, the Exercise Price will be aggregate of the average net market prices at which Issuer purchases or sells each of the financial instruments included in the Reference Asset to establish a hedge. (e) The "Special Expiration Price" or, in the event of a Pair Option, the "Special Expiration Allowance", that will be used in determining whether a Special Expiration Event has occurred, as set forth in Section 7. Unless otherwise agreed (i) the Special Expiration Price will be calculated in terms of a percentage of the Exercise Price (for example 5% below the 2 Exercise Price for a Call Option or 3% above the Exercise Price for a Put Option); and (ii) the Special Expiration Allowance for a Pair Option will be calculated as an aggregate of the amount below the Exercise Price for the Pair Long Portfolio and an amount above the Exercise Price for the Pair Short Portfolio. Both the Special Expiration Price and Special Expiration Allowance, will be expressed as a dollar amount, rounded to the nearer penny. The Special Expiration Price and the Special Expiration Allowance may be subject to further terms and conditions mutually agreed upon by you and Issuer. (f) The "Mark-to-Market Continuation Premium", which is the premium you must pay as specified in Section 7 to avoid cancellation and "mark-to-market" the Option to following a Special Expiration Event. The Mark-to-Market Continuation Premium is not amortized over the life of the Option. Unless otherwise agreed at the time you agree the Option to be "marked-to-market," the Continuation Premium will be equal to the difference between the Current Market Price of the Reference Asset and the Special Expiration Price plus an additional 0.5% of the Exercise Price in the case of a Put Option or a Call Option, or plus an additional 0.5% of the greater of the Exercise Price relating to the Pair Long Portfolio or the Exercise Price relating to the Pair Short Portfolio in the case of a Pair Option. (g) The "Amortizable Premium", which is a premium that is amortized at the Amortization Rate on a daily basis over the life of the Option. The Amortizable Premium is due and payable on the Business Day after the Option is issued, and any portion of the Amortizable Premium that has not been amortized at the time the Option expires, is cashed-in, exercised or terminated will be returned to you. The Amortizable Premium will be expressed as a percentage of the aggregate market value of the Reference Asset units underlying the Option. The dollar amount of the Amortizable Premium is calculated by multiplying the agreed upon percentage by the costs of the aggregate units of the Reference Asset underlying the Option. For example, if the average cost of the applicable Reference Asset (for purposes of this example, consisting of a single stock) is $31 per share, the dollar amount of a 9% Amortizable Premium on one twelve month call option contract on 100 shares would be $279 (9% of $3100). (h) The "Amortization Rate" at which the Amortizable Premium will amortize, expressed as an actual over actual percentage rate. (i) The "Unamortizable Premium", which is an additional premium related to the aggregate market value of the underlying Reference Asset at the time the Option is issued. The Unamortizable Premium is due and payable on the Business Day after the Option is issued. The Unamortizable Premium will be used to offset any transaction costs or losses incurred by Issuer in liquidating the hedge following exercise, cash-in, cancellation, expiration, or termination of the Option. In the event the Option is exercised or expires, Issuer will return any unused portion of the Unamortizable Premium to you promptly after the hedge has been liquidated. In the event the Option is cancelled, Issuer may, at its discretion, return any unused portion of Unamortizable Premium to you promptly after the hedge has been liquidated. CDCS, as agent for Issuer, will deliver to you a closing confirmation that reflects the liquidation price(s) with respect to the hedge and the amount of the Unamortizable Premium used to offset Issuer's 3 liquidation costs or losses, if any. Unless otherwise agreed at the time the Option is entered into, the Unamortizable Premium will be zero. (j) The "Contingent Premium", which is an additional premium due on the Business Day following the cancellation or expiration of the Option in the event the Option is either cancelled or allowed to expire worthless by the Purchaser. It can be either a fixed dollar amount or a percentage of the market value of the underlying Reference Asset. Issuer may, at its discretion, determine that an amount less than the originally negotiated Contingent Premium, if any, is due or return any portion of the Contingent Premium that Issuer deems appropriate when the Option is cancelled or expires. Unless otherwise agreed at the time the Option is entered into, the Contingent Premium will be zero. (k) Any "Hedging Fees", which are fees agreed upon by you and Issuer that Issuer may charge you for establishing any hedge in connection with entering into or modifying an Option, or for liquidating any hedge upon the exercise, termination, cash-in, or expiration of an Option (but not if the Option is cancelled). The portion of such fees relating to the establishment of a hedge will be reflected in the Exercise Price of the Option. The portion of such fees relating to the liquidation of a hedge will be reflected in the final Market Value of the Option. (l) The "Scheduled Expiration Date", which is the date on which an Option that has not previously been exercised, cancelled, cashed-in, or terminated will either be automatically exercised or expire worthless. Such Option will be automatically exercised if, at 3:00 P.M. Eastern Time on the Scheduled Expiration Date (the "Scheduled Expiration Time"), the Market Value of such Option (as defined in Section 6(d)) is greater than zero (referred to as "in-the-money"). In all other circumstances, such Option will expire worthless. 4. EXERCISE and UNWIND ("CASH-IN"). (a) Any Option that is "in the money" and that has not previously been cancelled, exercised, cashed-in, terminated, or expired will be automatically exercised at the Scheduled Expiration Time. An American Style Option that has not previously been cancelled, exercised, cashed-in, terminated, or expired may be exercised prior to the Scheduled Expiration Date, in whole or in part (except for Pair Options, which only may be exercised in their entirety), by providing notice as set forth in Section 5 below. Unless otherwise specified in such notice, an exercise notice will be deemed effective when given, if the notice is given prior to 3:00 P.M. Eastern Time on any Business Day, and otherwise on the opening of business on the next following Business Day. (b) Subject to Issuer's approval, which may be withheld in its sole discretion, you may unwind ("cash-in") an Option that has not previously been cancelled, exercised, cashed-in, terminated, or expired, by providing notice as set forth in Section 5 below. Unless you and Issuer agree otherwise, the Settlement for a cashed-in Option will be the same as for a cash-settled Option. 5. EXERCISE, CASH-IN, AND MARK-TO-MARKET NOTICES. (a) Any notice of exercise, cash-in or agreement to pay the Mark-to-Market Continuation Premium must 4 be made to Joseph Vencil, Michael Pantoliano, Matt Demm, or Ursula Anders at CDCS, prior to 3:00 P.M. Eastern Time, using one of the following phone numbers: PHONE: (212) 891-5750 or (800) 232-1135 No notice of exercise, cash-in or agreement to pay the Mark-to-Market Continuation Premium will be deemed to be given until you notify CDCS, as agent for Issuer, by telephone as described above, regardless of whether Issuer or CDCS has received a facsimile notification. (b) Issuer may change the notice provisions of this Section 5 at any time by sending a written notice via fax or email to the address you most recently provided to CDCS, and any such change will be effective three Business Days after being sent by Issuer or CDCS, as agent for Issuer. 6. SETTLEMENT. (a) If the Option is physically settled, settlement will take place 3 Trading Days following the date on which the Option was exercised by (i) the Physically Settling Party delivering the relevant Reference Asset underlying the exercised portion of the Option to the other party against payment of the Exercise Price, and (ii) Issuer returning the remaining portion of the Amortizable Premium, plus any unused portion of the Unamortizable Premium to you. The "Physically Settling Party" will be Issuer with respect to the long portfolio portion of a Pair Option or where the relevant Option is a Call Option, and it will be you with respect to the short portfolio portion of a Pair Option or where the relevant Option is a Put Option. (b) If any portion of an Option is cash-settled, Issuer will promptly proceed to liquidate its hedge relating to the exercised portion of the Option. Settlement will take place one Trading Day following the day on which such liquidation is complete by Issuer paying the Market Value relating to the exercised portion of the Option to you in readily available funds to the account set forth on the signature page hereof or pursuant to such other payment instructions as provided by you to CDCS, as agent for Issuer, prior to settlement. (c) All payments will be made in U.S. dollars unless another currency is specified in the initial Option Confirmation. (d) The "Market Value" of a Special Expiration Price Option is as follows: (i) For a Put Option, the Market Value is equal to the sum of the following, if positive: (A) the Exercise Price less the Current Market Price for the underlying Reference Asset, (B) the remaining portion of the Amortizable Premium, and (C) any unused portion of the Unamortizable Premium. Otherwise the Market Value is Zero. (ii) For a Call Option, the Market Value is equal to the sum of the following, if positive: (A) the Current Market Price of the underlying Reference Asset less the Exercise Price, (B) the remaining portion of the Amortizable Premium, and 5 (C) any unused portion of the Unamortizable Premium. Otherwise the Market Value is Zero. (iii) For a Pair Option, the Market Value is the sum of the following, if positive: (A) the Current Market Price of the Pair Long Portfolio less the Exercise Price of the Pair Long Portfolio, (B) the Exercise Price of the Pair Short Portfolio less the Current Market Price of the Pair Short Portfolio, (C) the remaining portion of the Amortizable Premium, and (D) any unused portion of the Unamortizable Premium. Otherwise the Market Value is Zero. The "Current Market Price" is calculated by Issuer based on the price it actually receives or pays for the underlying Reference Asset in liquidating its hedge following exercise, cash-in or termination of the Option. If Issuer is unable to liquidate its hedge for any reason, or in the case of a cash-settled Option the agreed-upon formula cannot be applied, Issuer will determine the Current Market Price based on the closing prices in the Primary Trading Market for the Reference Asset or, if no trading market exists, based on a reasonable method of appraising the value of the Reference Asset. 7. SPECIAL EXPIRATION. (a) The Special Expiration Options will be cancelled, and will become worthless, if a Special Expiration Event occurs at any time during regular business hours on any Trading Day during the life of the Option, unless you timely agree to pay, and timely pay, the Mark-to-Market Continuation Premium (such timely notice and payment referred to as a "Mark-to-Market" or simply a "mark"). (i) Your agreement to pay the Mark-to-Market Continuation Premium will be timely if you either (i) prior to the occurrence of a relevant Special Expiration Event instruct, either by means of standing instructions or otherwise, Issuer to Mark-to-Market the Option following such Special Expiration Event; or (ii) no later than 15 minutes after the occurrence of the relevant Special Expiration Event, notify Issuer in the manner set forth in Section 5 that you will timely pay the agreed upon Mark-to-Market Continuation Premium. (ii) You must pay the Mark-to-Market Continuation Premium to CDC IXIS no later than by 4:00 P.M. Eastern Time on the Business Day following the occurrence of the relevant Special Expiration Event. Failure to make such payment may, at Issuer's sole discretion, result in immediate cancellation of the relevant Option and permits Issuer to terminate all other outstanding Options hereunder. (iii) You are solely responsible for monitoring your Options, and all values and amounts relevant to determine whether a Special Expiration Event has occurred. Issuer may make a reasonable attempt at notifying you promptly if a Special Expiration Event occurs, and may specify the proposed Mark-to-Market Continuation Premium and a calculation of the proposed "mark" amount, but is not obligated to do so, and is not responsible for any failure or delay in notifying you. (iv) A "Special Expiration Event" will occur: 6 (1) in the case of a Call Option, if the value of the Reference Asset hits, or falls below, the Special Expiration Price (also referred to as a "down and out"). (2) In the case of a Put Option, if the value of the Reference Asset hits, or exceeds the Special Expiration Price (also referred to as a "up and out"). (3) In the case of a Pair Option, if the amount of loss in the aggregate value of the Reference Asset equals or exceeds the Special Expiration Allowance (also referred to as an "out"). (b) Issuer will monitor the current market value of the underlying Reference Asset on the Primary Trading Market for that Reference Asset on a continuous basis during each Trading Day to determine whether a Special Expiration Event has been triggered. If the Reference Asset is a basket or an index, Issuer will calculate the current value of the Reference Asset on an aggregate basis. If the Primary Trading Market for the Reference Asset is a centralized auction "Specialist" market (e.g. the New York Stock Exchange) the current value of the Reference Asset will be determined by the price at which the Primary Trading Market reports a trade for the Reference Asset. Unless otherwise agreed between Issuer and you, if the Primary Trading Market is a multi-dealer market (e.g. NASDAQ National Market), the current value of the Reference Asset will be determined by the inside offer for the Reference Asset underlying a Put Option or comprising the Pair Short Portfolio, and the current inside bid for the Reference Asset underlying a Call Option or comprising the Pair Long Portfolio. In the case of a basket Issuer will use the appropriate method for calculating the current market value of each component of the basket, based on the market in which it trades as described above. If a Market Disruption Event occurs, Issuer will determine the value of the Reference Asset based on a reasonable appraisal method. (c) In the event of a Mark-to-Market, Issuer will make the following adjustments to the Option: (i) for a Call Option, both the Exercise Price and the Special Expiration Price will be reduced by the paid Mark-to-Market Continuation Premium amount. (ii) for a Put Option, both the Exercise Price and the Special Expiration Price will be increased by the paid Mark-to-Market Continuation Premium amount. (iii) for a Pair Option, the absolute value of the Special Expiration Allowance will be increased by the paid Mark-to-Market Continuation Premium amount, the Exercise Price of the Pair Long Portfolio and the Exercise Price of the Pair Short Portfolio will be reduced and increased, respectively, so that the aggregate net change in their Exercise Prices is equivalent to the paid Mark-to-Market Continuation Premium 7 amount, and such adjustment to the Exercise Prices will be allocated on a pro-rata basis based on the relative values of the original Exercise Prices. 8. EARLY TERMINATION EVENTS. (a) Each of the following events shall constitute an "Early Termination Event", provided, however, that it will not constitute an Early Termination Event if Issuer fails to pay or deliver, or Early Termination Event or other similar condition or event, as the case may be, arises solely (i) out of a wire transfer problem or an operational or administrative error or omission (so long as the required funds or property required to make that payment or delivery were otherwise available to Issuer), or (ii) from the general unavailability of the relevant currency due to exchange controls or other similar governmental action, but in either case only if the payment or delivery is made within three Business Days after the problem has been corrected, the error or omission has been discovered or the currency becomes generally available: (1) Failure to Pay or Deliver. Failure by either party to make, when due, any payment or delivery required under this Agreement (2) Breach of Agreement. Failure by either party to comply with or perform any agreement or obligation (other than an obligation to make any payment or delivery or to give notice of an Early Termination Event) if such failure is not remedied by the fifth day after notice of such failure is given to the party; (3) Misrepresentation. A representation made or repeated or deemed to have been made proves to have been incorrect or misleading in any material respect when made or repeated or deemed to have been made; (4) Bankruptcy. Either party: (i) is dissolved; (ii) becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due; (iii) makes a general assignment for the benefit of its creditors; (iv) institutes or has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation has a resolution passed for its winding-up, official management or liquidation; (v) seeks or becomes subject to the appointment of an administrator, liquidator, conservator, receiver, trustee custodian or other similar official; (vi) has a secured party take possession of a substantial part of its assets or has a distress, execution, attachment, or other legal process levied, enforced or sued on or against a substantial part of its assets; or (vii) causes or is subject to any event similar to those listed above; or takes any action in furtherance of, or indicating its consent to, or approval of any of those acts or events. (5) Merger Without Assumption. The Purchaser consolidates with, mergers with or into, or transfers all or substantially all its assets to, or reorganizes or reincorporates into or as, another entity and, at the time of such event, the 8 resulting, surviving or transferee entity fails to assume all of such party's obligations under this Agreement, each Confirmation, and the Client Agreement. (6) Illegality; Impracticability. The occurrence of any event that makes it illegal or impracticable for any financial instrument that constitutes a Reference Asset underlying any Option to be traded, bought or sold on any exchange or in any other organized market, due to any force majeure event, any change in applicable laws or regulations, or any other event that would impact the ability to transfer or hedge the Reference Asset. If such event affects one or more but not all, instruments in a larger basket or index that constitutes the Reference Asset, the Purchaser may elect (i) to terminate the Option, or (ii) to eliminate the affected instrument(s) from the basket or index and substitute another selected by the Purchaser that is acceptable to Issuer. If the Purchaser elects to substitute another instrument or instruments, Issuer will adjust the Exercise Price and Special Expiration Price accordingly in a manner acceptable to Issuer and the Purchaser. (b) If an Early Termination Event occurs (or an event that would be an Early Termination Event with the passage of time or the giving of notice) with respect to a party, that party will, promptly upon becoming aware of it, notify the other party, specifying the nature of the event and such other information about the event as the other party may reasonably require. The party with respect to which the Early Termination Event occurs will, on demand, indemnify and hold harmless the other party for and against all reasonable out-of-pocket expenses, including legal fees and related taxes and expenses, incurred by such other party by reason of the enforcement and protection of its rights under this Agreement, or by reason of the early termination of any Option, including, but not limited to, costs of collection. (c) Upon the occurrence, with respect to the Purchaser, of an Early Termination Event described in SubSection (a)(4) above, all Options under this Agreement will terminate immediately upon such occurrence. Upon the occurrence of any other Early Termination Event, Issuer may, by notice to the Purchaser, terminate all Options under this Agreement, and all such Options will be terminated as of the time and date of such termination notice. With respect to each such terminated Option, the Purchaser will be entitled to the Market Value of the Option, if any, as of the date of termination. Unless you and Issuer agree otherwise, the Settlement for an Option which is terminated early will be the same as for a cash-settled Option. 9. ADJUSTMENT EVENTS. If any takeover offer, delisting, bankruptcy, nationalization or corporate actions (such as distributions, ordinary and extraordinary dividends, reclassification of shares, merger, material asset sale) or similar event (each an "Adjustment Event") occurs, is announced, or in the reasonable opinion of Issuer is likely to occur, with respect to any issuer of the underlying Reference Asset that in Issuer's reasonable opinion could have a material effect on the nature of the Reference Asset, its volatility, their trading market or other material characteristics, Issuer may make an appropriate adjustment of the terms of the Option or may (except for an Adjustment Event arising solely due to ordinary dividends and ordinary distributions), in its sole discretion, terminate the Option. 9 10. CALCULATION OF AMOUNTS AND VALUES. Upon the occurrence of an Adjustment Event, Issuer will determine and adjust, as applicable, the Exercise Price, the Special Expiration Price, the Special Expiration Allowance, the Market Value of the Option at the time of such Adjustment Event, the current market value of the underlying Reference Asset, and any other calculations or determinations necessary to effect the economic objectives of the Special Expiration Price Option. 11. SET-OFF. Issuer shall be entitled to set off any amount that it owes Purchaser against any obligations Purchaser may have to it, whenever arising, including any contingent obligations. In addition, Issuer shall have any other rights which it may otherwise have by reason 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). 12. CONDITIONS PRECEDENT TO PAYMENT. Absent the occurrence of an Early Termination Event, each party's obligation to make a payment to the other party is subject to (i) the condition precedent that no Early Termination Event with respect to the other party has occurred and is continuing; and (ii) the condition precedent that the other party has made all payments due from it. 13. DEDUCTION OR WITHHOLDING FOR TAX - GROSS-UP. All payments under this Agreement shall be subject to any required deduction or withholding for or on account of any tax. 14. ADDITIONAL AGREEMENTS OF PURCHASER. Purchaser agrees with CDCS that, so long as either party has or may have any obligation under this Agreement: (a) Furnish Specified Information. Purchaser will deliver to Issuer or, where appropriate, to any relevant government or taxing authority, such financial information, legal authority information, or tax status information, as Issuer reasonably directs. (b) Compliance With Laws. Purchaser will comply in all material respects with all applicable laws and rules to which Purchaser may be subject. (c) Compliance with Representations. Purchaser will not take any action during the term of this Agreement or any Option that makes any of Purchaser's representations, warranties or agreements untrue, incorrect, or incomplete. If any of these do become untrue, incorrect, or incomplete, Purchaser will immediately give oral and written notice to Issuer. (d) Non-Contravention. None of Purchaser's organizational documents, or any other document or agreement governing Purchaser's conduct will prohibit, or will be amended to prohibit, Purchaser from entering into options or transactions in any cash market instruments on which any Options are based. 10 15. PURCHASER'S REPRESENTATIONS. The Purchaser represents and warrants to Issuer (which representations will be deemed to be repeated on each date an Option is purchased or is outstanding, or any payment is made with respect thereto) as follows: (a) The Purchaser is duly organized and validly existing under the laws of the jurisdiction of its organization and is in good standing. (b) The Purchaser is duly authorized to execute and deliver this Agreement, to enter the Options contemplated hereunder and to perform its obligations hereunder and has taken all necessary actions to authorize such execution, delivery and performance. Such execution, delivery and performance do not violate or conflict with any law applicable to the Purchaser, any provision of its constitutional documents or any order, judgment or contractual restriction binding on or affecting it or any of its assets. The person executing this Agreement on the Purchaser's behalf is authorized to do so on its behalf. (c) All governmental and other consents that are required to have been obtained by the Purchaser with respect to this Agreement have been obtained and are in full force and effect. (d) Purchaser's obligations under this Agreement constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms (subject to applicable bankruptcy or similar laws). (e) There is not pending nor, to its knowledge, threatened against the Purchaser, any action, suit or proceeding before any court, tribunal, governmental body, agency or official or any arbitrator that is likely to affect the legality, validity or enforceability against it of this Agreement or its ability to perform its obligations under this Agreement. (f) All applicable information that is furnished in writing by or on behalf of the Purchaser is, as of the date of the information, true, accurate and complete in every material respect. (g) The Purchaser is an "accredited investor" as the term is defined in Regulation D under the Securities Act of 1933, as Amended (the "Securities Act"). (h) Purchaser is an "eligible contract participant" within the meaning of the Commodity Exchange Act, as amended. (i) Purchaser is entering into each Option as principal and not as agent or in any other capacity, fiduciary or otherwise and no other person has an interest herein. (j) The Purchaser is not, and will not become, an Affiliate (within the meaning of Rule 144 of the Securities Act, which defines an Affiliate as "a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such issuer") with respect to the issuer of any Reference Asset underlying any Option. The Purchaser does not posses any material non-public information regarding the 11 issuer of any such Reference Asset nor did it posses any such information at the time placing any order with respect to the Option. (k) The Purchaser is not subject to the terms of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code"), or materially similar provisions of any other law. (l) The Purchaser understands that: (i) the Special Expiration Price Options are not registered under the Securities Act and can only be sold pursuant to an exemption from registration; (ii) the Special Expiration Price Options are not listed on any stock exchange; (iii) the obligations under these Options are not protected by any government or private entity, including the U.S. Federal Deposit Insurance Corporation or the Securities Investor Protection Corporation; (iv) Special Expiration Options are associated with a high degree of risk, including the risk that they may be worthless and that the Purchaser may lose all premium payments if a Special Expiration Event is triggered at any time during the life of the Option; and (v) the Securities Investor Protection Act of 1970, as amended, does not protect the Purchaser. (m) The Purchaser will not enter into a Special Expiration Price Option contract if its financial status would be materially affected by losing all of the Premium and the Unamortizable Premium for the Option. (n) The Purchaser's financial status is such that it has the means to exercise the Options purchased by it, should it decide to do so. (o) The Purchaser has considerable prior experience trading securities and is sophisticated with respect to trading options in particular, and has undertaken such investigation and has been provided with and has evaluated such documents and information as it has deemed necessary to enable it to make an informed and intelligent decision with respect to the execution, delivery and performance of this Agreement. (p) The Purchaser has, (i) consulted, to the extent it deemed necessary, with independent financial, tax, and legal advisors of its own choosing and made its investment, hedging, and trading decisions with respect to each Option based solely on its own judgment and the advice of such advisors, and not obtained or relied upon any representations, assurances, or advice by Issuer or CDCS as to expected profitability, success, tax treatment or other benefits of the Option; (ii) determined that the economic terms of the Option reflect the terms of similar 12 transactions in the relevant market; and (iii) not deemed any communication received from Issuer or CDCS, as its agent, a guarantee or assurance as to the expected results of the Option. (q) The Purchaser has read this letter in its entirety, understood it, and agrees to be bound by the terms and conditions set forth herein. 16. MARKET DISRUPTION EVENTS. A "Market Disruption Event" is a suspension or material limitation on the trading of the underlying Reference Asset in the Primary Trading Market for the instrument. If Issuer determines in good faith that there has been a Market Disruption Event, Issuer may, in its discretion, postpone calculation of the Market Value of an Option until the next Business Day on which no Market Disruption Event exists. If the Market Disruption Event affects one or more, but not all, instruments in a larger basket or index that constitutes the Reference Asset, Issuer may postpone calculation of the Market Value only if it determines in good faith that the Market Disruption Event will substantially or materially affect such calculation. 17. NEGOTIATED MODIFICATIONS OF THE OPTIONS. You and Issuer may agree from time to time to make modifications to the Options purchased by you from the Issuer pursuant to this Agreement, which modifications may include, without limitation, any changes in the composition of the Reference Asset underlying such Option, Scheduled Expiration Date, Amortizable Premium, Contingent Premium, Exercise Price, Special Expiration Price or Special Expiration Allowance. Issuer retains the sole right to accept or reject the request to make any modifications. Any modifications mutually agreed upon will be subject to the terms of this Agreement and will be reflected in a Confirmation and a worksheet. 18. CDCS AS AGENT. You hereby acknowledge that CDCS is acting as Issuer's agent under this Agreement and each Option hereunder. CDCS will send you Confirmations, Worksheets and transaction reports on behalf of Issuer, and if you have any questions regarding this Agreement or any Option, you should direct them to CDCS. However, CDCS is not acting as a principal and bears no responsibility for Issuer's obligations under the Options. 19. BUSINESS DAY. A "Business Day" is any day, except for Saturday and Sunday and other days on which banking institutions in the city of New York are authorized or required by law or executive order to remain closed. 20. PRIMARY TRADING MARKET AND TRADING DAY. The "Primary Trading Market" for the underlying Reference Asset is the principal trading market for such Reference Asset or any portion thereof (as determined by the Issuer). A "Trading Day" is any day that is (or, but for the occurrence of a Market Disruption Event, would have been) a trading day in the Primary Trading Market other then a day on which trading in any such market is scheduled to close prior to its regular closing time. 21. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and understanding of the parties with respect to its subject matter and supersedes all oral communication and prior writings with respect thereto. All Options are entered into in reliance 13 on the fact that this Master Agreement and all Confirmations form a single agreement between the parties (collectively referred to as this "Agreement"), and the parties would not otherwise enter into any Options. 22. NOTICES. Except as otherwise set forth in this Agreement, notice shall mean an actual notice by telephone, facsimile and/or email. Such notice shall be deemed effective as of such time when either (i) notice has been actually delivered by telephone; (ii) where a notice is sent via facsimile following reasonable efforts of a telephonic notice, at the time the facsimile machine has generated a "good transmission" report recording time and date sent and fax number of recipient; or (iii) where a notice is sent via email following reasonable efforts of a telephonic notice, at the time the email message is sent, provided that no error message to the effect that the message is not deliverable within a reasonable time after it is sent has been generated. The address for notices shall be as set out on the signature page, unless a party provides notice to the other party of different notice information with respect to it. 23. ASSIGNMENT. Neither this Agreement nor any interest or obligation in or under this Agreement, nor any Option may be transferred by either party without the prior written consent of the other party. 24. RECORDED CONVERSATIONS. Each party (or its agents) may electronically record any of its telephone conversations with the other party or with any of the other party's agents relating to the matters referred to in this Agreement or any Option. Each party hereby consents to such recording and understands that any such recordings may be submitted in evidence in any proceeding relating to this Agreement or any Option. 25. AMENDMENTS. No amendment, modification or waiver in respect of this Agreement will be effective unless in writing (including a writing evidenced by a facsimile transmission) and executed by each of the parties. 26. WAIVER OF RIGHTS; REMEDIES CUMULATIVE. No failure or delay by any party in exercising any right or power hereunder or under any Option shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the parties are cumulative and are not exclusive of any rights or remedies that they would otherwise have. 27. COUNTERPARTS. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. 28. SEVERABILITY. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction then, to the fullest extent permitted by law, (i) such provision shall, as to such jurisdiction, be ineffective to the extent (but only to the extent) of such invalidity, illegality or unenforceability, (ii) the other provisions hereof shall remain in full force 14 and effect in such jurisdiction and shall be liberally construed in favor of Issuer in order to carry out the intentions of the parties thereto as nearly as may be possible and (iii) the invalidity, illegality or unenforceability of any such provision in any jurisdiction shall not affect the validity, legality or enforceability of such provision in any other jurisdiction. 29. HEADINGS. The headings used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement. 30. GOVERNING LAW; JURISDICTION; SERVICE OF PROCESS. This Agreement shall be construed in accordance with and governed by the law of the State of New York. (a) Each party irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any relevant appellate court, in any action or proceeding arising out of or relating to this Agreement or any Option, or for recognition or enforcement of any judgment, and each party hereto irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State court or, to the extent permitted by law, in such Federal court. Each party hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement or any Option shall affect any right that Issuer may otherwise have to bring any action or proceeding relating to this Agreement or any Option against the Purchaser or its properties in the courts of any jurisdiction. (b) Each party irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any Option in any court referred to in subsection (a) of this Section. Each party hereto irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of any such suit, action or proceeding in any such court. (c) If Purchaser is not headquartered in the United States, it will maintain at all times a U.S. agent for service of process. Service of process on the Issuer may be accomplished by service on CDCS, as agent. Nothing in this Agreement shall affect the right of either party to serve process. 31. WAIVER OF JURY TRIAL. EACH PARTY HERETO WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO 15 REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. 16 IN WITNESS WHEREOF, the parties have executed this Special Expiration Price Options Master Agreement by their duly authorized signatories as of this 20 day of January, 2004. ISSUER CDC Derivatives, Inc. By: CDCS, as agent By: /s/ William Branagh -------------------------------- Name: William Branagh Title: By: /s/ Louis Pinto -------------------------------- Name: Louis Pinto Title: Managing Director Issuer's Contact Information: Attn: ----------------------------- Phone: ----------------------------- Fax: ------------------------------- Email: ----------------------------- Address: --------------------------- PURCHASER Wood River Partners, LP (Name of partnership or corporation) X: /s/ John H. Whittier --------------------------------- Name: John H. Whittier Title: General Partner Purchaser's Contact Information: Attn: Carolina Stevens ------------------------------ Phone: 208-622-1646 ---------------------------- Fax: 208-622-5551 ------------------------------- Email: cs@woodrivercapital.com ----------------------------- Address: P.O. Box 7050 --------------------------- 100 S. Leadville, 3rd Floor Ketchum, ID 83340 17 -----END PRIVACY-ENHANCED MESSAGE-----