Amendment #3 to the SC 13D

-----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, LdJOQZinBb02FOssycCkf1bcnH9nVBMmo0jcpCDD6k9Fpd14HbB8YkyLmV4P/PL2 S6BiUxAgGFGC8VfVc8G/fA== 0000928385-03-001759.txt : 20030604 0000928385-03-001759.hdr.sgml : 20030604 20030604152118 ACCESSION NUMBER: 0000928385-03-001759 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20030604 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: KAY RICHARD A CENTRAL INDEX KEY: 0001138924 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: C/O OTG SOFTWARE INC STREET 2: 6701 DEMOCRACY BLVD SUITE 800 CITY: BETHESDA STATE: MD ZIP: 20817 BUSINESS PHONE: 3018971400 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: LEGATO SYSTEMS INC CENTRAL INDEX KEY: 0000859360 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 943077394 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-48554 FILM NUMBER: 03732453 BUSINESS ADDRESS: STREET 1: 3210 PORTER DR CITY: PALO ALTO STATE: CA ZIP: 94304 BUSINESS PHONE: 4158126000 MAIL ADDRESS: STREET 1: 3210 PORTER DRIVE CITY: PALO ALTO STATE: CA ZIP: 94304 SC 13D/A 1 dsc13da.htm AMENDMENT #3 TO THE SC 13D Amendment #3 to the SC 13D

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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under The Securities Exchange Act of 1934

Amendment No. 3

Legato Systems, Inc.

(Name of Issuer)

Common Stock

(Title of Class of Securities)

524651 106

(CUSIP Number)

Richard A. Kay

c/o Strategic Management Consultants, LLC

11200 Rockville Pike, Suite 220

Rockville, MD 20852

with a copy to:

Michael A. Schlesinger, Esq.

Latham & Watkins LLP

555 Eleventh Street, N.W., Suite 1000

Washington, D.C. 20004

(202) 637-2200

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

May 29, 2003

(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 which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box. ¨

Note: Schedules filed in paper format shall include a signed original and five copies of this schedule, including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent.

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.


1.	Name of Reporting Person, S.S. or I.R.S. Identification No. of above person Richard A. Kay

2.	Check the Appropriate Box if a Member of a Group* (a) ¨ (b) ¨

3.	SEC Use Only

4.	Source of Funds SC

5.	Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)	¨

6.	Citizenship or Place of Organization United States

NUMBER OF

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7. Sole Voting Power

6,966,605

8. Shared Voting Power

10,314

9. Sole Dispositive Power

6,966,605

10. Shared Dispositive Power

10,314

11.	Aggregate Amount Beneficially Owned by Each Reporting Person 6,976,919 (See Item 5 (a))

12.	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares	¨

13.	Percent of Class Represented by Amount in Row (11) 6.0%

14.	Type of Reporting Person IN

This Amendment No. 3 to Schedule 13D (the “Amendment”) amends and restates the Schedule 13D originally filed on May 24, 2002 by the Reporting Person, as amended by the Reporting Person on June 3, 2002 and November 14, 2002.

Item

1. Security and Issuer.

This Schedule 13D relates to 6,976,919 shares of common stock, $0.0001 par value per share (the “Common Stock”), of Legato Systems, Inc. (the “Issuer” or “Company”), a Delaware corporation whose principal business address is 3210 Porter Drive, Palo Alto, CA 94304.

Item 2. Identity and Background.

Richard A. Kay (the “Reporting Person”), an individual citizen of the United States of America, has been appointed as a director of the Company. The principal business address of the Reporting Person is c/o Strategic Management Consultants, LLC, 11200 Rockville Pike, Suite 220, Rockville, MD 20852.

During the last five years, the Reporting Person has not been (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to any civil proceeding of a judicial or administrative body of competent jurisdiction that, as a result of such proceeding, rendered the Reporting Person 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.

Item 3. Source and Amount of Funds or Other Consideration.

This Schedule 13D relates to (i) 4,313,046 shares of Common Stock held by the Reporting Person, (ii) options held by the Reporting Person to purchase 171,900 shares of Common Stock at an effective exercise price of $5.4542 per share, all of which are currently exercisable through June 30, 2004, (iii) 133,708 shares of Common Stock held by Rebecca J. Kay, the spouse of the Reporting Person, (iv) 142,517 shares of Common Stock held by the Brandon Kay November 1999 Grantor Retained Annuity Trust, a trust organized under the laws of the State of Maryland and of which the Reporting Person is the trustee, (v) 194,950 shares of Common Stock held by the Brandon Kay June 1999 Grantor Retained Annuity Trust, a trust organized under the laws of the State of Maryland and of which the Reporting Person is the trustee, (vi) 886,800 shares of Common Stock held by the Richard A. Kay Charitable Remainder Unitrust, a trust organized under the laws of the State of Maryland and of which the Reporting Person is the trustee, (vii) 362,056 shares of Common Stock held by the Bradley Evan Kay November 1999 Grantor Retained Annuity Trust, a trust organized under the laws of the State of Maryland and of which the Reporting Person is the trustee, (viii) 362,056 shares of Common Stock held by the Amanda Jean Kay November 1999 Grantor Retained Annuity Trust, a trust organized under the laws of the State of Maryland and of which the Reporting Person is the trustee, (ix) 10,314 shares of Common Stock held by the Kay Children’s 2001 Education Trust, a trust organized under the

laws of the State of Maryland and of which the Reporting Person is one of two trustees and (x) 399,572 shares of Common Stock owned by the Reporting Person’s minor child (collectively, the “Related Entities”). The Related Entities hold a total of 6,976,919 shares of Common Stock, which represents 6.0% of the Company’s outstanding shares, based upon 116,205,000 total shares of Common Stock issued and outstanding as of March 31, 2003.

Pursuant to that certain Agreement and Plan of Merger by and among the Company, OTG Software, Inc. (“OTG”), and Orion Acquisition Sub Corp. (“Orion”), dated as of February 20, 2002 (the “Merger Agreement”), the shares of common stock of OTG held by the Related Entities were exchanged for common stock of the Company effective as of May 14, 2002. Under the terms of the Merger Agreement, each share of common stock of OTG was converted into 0.6876 shares of Common Stock of the Company and a cash payment of $2.50. With respect to the OTG common stock held by the Related Entities other than the persons identified in clauses (iii), (x) and (xi) of the foregoing paragraph (the “Subject Holders”), the total merger consideration payable in respect of the shares of the Subject Holders (other than such shares of the Reporting Person) was allocated among the Subject Holders such that the cash portion of the merger consideration was distributed solely to the Reporting Person, and an offsetting number of shares of Common Stock was distributed on a pro rata basis to each of the Subject Holders. The foregoing summary is qualified in its entirety by reference to the Merger Agreement included as Annex A-1 to the Registration Statement on Form S-4 of the Company, filed as of March 15, 2002, and incorporated herein by reference.

The Reporting Person acquired beneficial ownership of 7,744,936 shares of Common Stock in exchange for a total of 11,263,722 shares of OTG common stock beneficially held by the Reporting Person prior to the consummation of the Merger Agreement. The Reporting Person’s options to purchase shares of Common Stock of the Company were assumed by the Company on May 14, 2002 pursuant to the Merger Agreement and were converted from an option to purchase 250,000 shares of OTG common stock at an exercise price of $6.25 per share.

Item 4. Purpose of Transaction

On May 14, 2002, the Company acquired OTG pursuant to the Merger Agreement described in Item 3 above. Under the Merger Agreement, OTG was merged with and into Orion, a wholly-owned subsidiary of the Company. In connection with the Merger Agreement, the Subject Holders and the Company entered into a certain Voting Agreement, dated as of February 20, 2002 (the “Voting Agreement”), pursuant to which the Subject Holders agreed to vote their shares in favor of the merger and to irrevocably appoint the Company or its nominee as their proxy. In addition, the Subject Holders agreed to refrain from disposing of beneficial ownership of any of their shares during the term of the Voting Agreement, which expired upon the consummation of the Merger Agreement. The foregoing summary is qualified in its entirety by reference to the copy of the Voting Agreement filed as Exhibit 2 to Schedule 13D of the Company, filed as of March 1, 2002, and incorporated herein by reference.

The Common Stock held directly or indirectly by the Reporting Person is being held for investment purposes. On May 31, 2002, the Reporting Person established a selling program under Rule 10b5-1 covering his shares of Common Stock for the purposes of diversifying his holdings in an orderly manner, pursuant to which 891,143 shares of Common

Stock have been sold during the period from January 13, 2003 through June 3, 2003, and which will expire by its terms as of June 13, 2003. On March 31, 2003, the Richard and Rebecca Kay Foundation made a charitable contribution of 48,774 shares transferred by gift to Venture Philanthropy Partners. On May 29, 2003, the Reporting Person adopted an additional selling program, as further described in Item 6 below. In addition, the Reporting Person expects to evaluate on an ongoing basis the Company’s financial condition, business operations and prospects, the status of any business combination involving the Company, if any, the market price of the Common Stock, conditions in the securities market generally, general economic and industry conditions, and other factors that may arise. The Reporting Person has no other specific plan or proposal in connection with the Common Stock.

The Reporting Person has no plans or proposals which relate to or would result in any of the actions or transactions described in paragraphs (b) through (j) of the instructions to Item 4 of Schedule 13D.

Item 5. Interest and Securities of the Issuer.

(a)

The Reporting Person is deemed to beneficially own, directly or indirectly, 6,976,919 shares of Common Stock, representing 6.0% of the total issued and outstanding Common Stock, based upon 116,205,000 total shares of Common Stock issued and outstanding as of March 31, 2003.

(b)

The Reporting Person has the power to vote, direct the vote, dispose, or direct the disposition of all the shares of Common Stock covered by this Schedule 13D.

(c)

The transactions described in Item 4 above are the only transactions effected during the last 60 days by the Reporting Persons.

(d)

Not Applicable.

(e)

Not Applicable.

Item

6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.

The Reporting Person entered into a Sales Plan, dated as of May 31, 2002 and modified as of November 12, 2002 (the “First Sales Plan”), with Goldman, Sachs & Co., pursuant to Rule 10b5-1. The First Sales Plan provided for the sale on each trading day commencing June 17, 2002 through and including June 13, 2003 (the date on which the First Sales Plan automatically expires) of the number of shares of Common Stock as specified pursuant to limit orders stated in the First Sales Plan. The foregoing summary is qualified in its entirety by reference to the copy of the First Sales Plan, included as Exhibit 10.1 to the Company’s Schedule 13D, filed as of November 14, 2002, and incorporated herein by reference, and the modification thereto, included as Exhibit 10.2 to the Company’s Schedule 13D, filed as of November 14, 2002, and incorporated herein by reference.

In addition, the Reporting Person has entered into a new Sales Plan, dated as of May 29, 2003 (the “Second Sales Plan”), with Goldman, Sachs & Co., pursuant to Rule 10b5-1. Under the Second Sales Plan, the Reporting Person is obligated to sell (beginning no earlier than June 16, 2003) up to 2,500,000 shares of Common Stock, which represents 35.8% of the shares of Common Stock reported on this

Schedule 13D, unless the Second Sales Plan is terminated pursuant to its terms. The Second Sales Plan provides for the sale on each trading day commencing June 16, 2003 through and including June 11, 2004 of the number of shares of Common Stock to be sold pursuant to limit orders as specified in the Second Sales Plan. The foregoing summary is qualified in its entirety by reference to the copy of the Second Sales Plan attached hereto as Exhibit 10.3.

Except as described above, the Reporting Person does not have any contracts, arrangements, understandings or relationships with any person with respect to any securities of the Company.

Item 7. Materials to be Filed as Exhibits.

Exhibit 10.1:		Sales Plan, dated as of May 31, 2002, by and between Richard A. Kay and Goldman, Sachs & Co. (filed as Exhibit 10.1 to the Company’s Amendment No. 2 to Schedule 13D filed on November 14, 2002 and incorporated by reference herein)

Exhibit 10.2:		Sales Plan Modification No. 1, dated as of November 12, 2002, by and between Richard A. Kay and Goldman, Sachs & Co. (filed as Exhibit 10.1 to the Company’s Amendment No. 2 to Schedule 13D filed on November 14, 2002 and incorporated by reference herein)

Exhibit 10.3:		Sales Plan, dated as of May 29, 2003, by and between Richard A. Kay and Goldman, Sachs & Co. (filed herewith)

Exhibit 99.1:		Merger Agreement (filed as Annex A-1 to the Company’s Registration Statement on Form S-4 filed on March 15, 2002, File No. 333-84420, and incorporated by reference herein)

Exhibit 99.2:		Voting Agreement (filed as Exhibit 2 to the Company’s Schedule 13D filed on March 1, 2002, File No. 005-61115, and incorporated by reference herein)

SIGNATURES

After reasonable inquiry and to the best of my knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.



		Dated: June 4, 2003						/s/ RICHARD A. KAY
								Richard A. Kay

EX-10.3 3 dex103.htm EXHIBIT 10.3 Exhibit 10.3

Exhibit 10.3

Sales Plan

Sales Plan, dated as of May 29, 2003 (the “Sales Plan”), between Richard Kay (“Seller”) and Goldman, Sachs & Co. (“Broker”).

WHEREAS, the Seller desires to establish the Sales Plan to sell shares of common stock, par value $0.0001 per share (the “Stock”), of Legato Systems, Inc. (the “Issuer”) in accordance with the requirements of Rule 10b5-1 as further set forth herein;

NOW, THEREFORE, the Seller and Broker hereby agree as follows:

1. Broker shall effect one or more sales (each a “Sale”) of shares of Stock (the “Shares”) as further set forth in the attached Annex A to the Sales Plan.

2. This Sales Plan shall become effective as of the date hereof and shall terminate on the earlier of (i) June 11, 2004, (ii) the date all Shares have been sold in accordance with this Plan or (iii) the death of the Seller.

3. Seller understands that Broker may effect Sales hereunder jointly with orders for other sellers of Stock of the Issuer and that the average price for executions resulting from bunched orders will be assigned to Seller’s account. All orders will be deemed day orders only and not held unless otherwise specified in Annex A.

4. Seller represents and warrants that, as of the date first set forth above, Seller is not aware of material, nonpublic information with respect to the Issuer or any securities of the Issuer (including the Stock) and is entering into this Sales Plan in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1.

5. It is the intent of the parties that this Sales Plan comply with the requirements of Rule 10b5-1(c)(1)(i)(B) under the Exchange Act and this Sales Plan shall be interpreted to comply with the requirements of Rule 10b5-1(c).

6. Seller represents that the Shares were acquired in a transaction to which Rule 145 under the Securities Act of 1933, as amended, applies. The Sales of the Shares pursuant to the Sales Plan shall be effected pursuant to Rule 145(d)(1), provided that Broker may assume that Sales effected hereunder are the only sales for Seller’s account which must be aggregated for purposes of compliance with Rule 144(e), and Seller shall not take, and shall not cause any person or entity with which he or she would be required to aggregate sales of Stock pursuant to paragraph (a)(2) or (e) of Rule 144 to take, any action that would cause the Sales not to comply with Rule 145 and Rule 144(e).

7. Seller represents and warrants that Seller is currently permitted to sell Stock in accordance with the Issuer’s insider trading policies and has obtained the approval of the Issuer to enter into this Sales Plan and that, other than any Rule 145 requirements set forth herein, there are no contractual, regulatory, or other restrictions applicable to the Sales contemplated under this Sales Plan that would interfere with Broker’s ability to

execute Sales and effect delivery and settlement of such Sales on behalf of Seller, other than restrictions with respect to which the Seller has obtained all required consents, approvals and waivers. Seller shall notify Broker immediately in the event that any of the above statements become inaccurate prior to the termination of this Sales Plan.

8. Seller shall make all filings, if any, required under Sections 13(d) and 16 of the Exchange Act.

9. Seller understands that Broker may not be able to effect a Sale due to a market disruption or a legal, regulatory or contractual restriction applicable to the Broker or any other event or circumstance (a “Blackout”). Seller also understands that even in the absence of a Blackout, Broker may be unable to effect Sales consistent with ordinary principles of best execution due to insufficient volume of trading, failure of the Stock to reach and sustain a limit order price, or other market factors in effect on the date of a Sale set forth in Annex A (“Unfilled Sales”).

Broker agrees that if Issuer enters into a transaction that results, in Issuer’s good faith determination, in the imposition of trading restrictions on the Seller and on all directors and senior executive officers of the Issuer, such as a stock offering requiring a lock-up of all such persons (“Issuer Restriction”), and if Issuer and Seller shall provide Broker at least three (3) days’ prior written notice signed by Issuer and Seller and confirmed by telephone of such trading restrictions (Attn: Restricted Stock Desk, c/o Control Room; Fax No. (212) 902-0943; Tel: (212) 902-1511), then Broker will cease effecting Sales under this Plan until notified in writing by Issuer and Seller that such restrictions have terminated. Broker shall resume effecting Sales in accordance with this Plan as soon as practicable after the cessation or termination of a Blackout or Issuer Restriction. Any Unfilled Sales, and any Sales that would have been executed in accordance with the terms of Annex A but are not executed due to the existence of a Blackout or Issuer Restriction, shall be deemed to be cancelled and shall not be effected pursuant to this Sales Plan.

10. This Sales Plan shall be governed by and construed in accordance with the laws of the State of Delaware and may be modified or amended only by a writing signed by the parties hereto (and, if required by Broker, upon the acknowledgement in writing by the Issuer if at such time Seller is a person covered by section 16(a) of the Securities Exchange Act of 1934, as amended, with respect to the Issuer or is otherwise then subject to the Issuer’s insider trading policies) or terminated upon delivery by Seller of written notice to Broker of such termination in the form attached hereto as Annex B, and provided that any such modification, termination or amendment shall only be permitted at a time when the Seller is otherwise permitted to effect sales under the Issuer’s trading policies and at a time when the Seller is not aware of material nonpublic information concerning the Issuer or its securities. In the event of a modification or amendment to this Sales Plan, or in the event Seller establishes a new plan after termination of the Sales Plan, no sales shall be effected during the thirty days immediately following such modification, amendment or termination (other than Sales already provided for in the Sales Plan prior to modification, amendment or termination).

11. Broker shall have the right to require, as a condition to Broker’s consent to any modification, termination or amendment under paragraph 10, that Seller shall (i) exculpate Broker from any action taken or omitted to be taken by Broker and (ii) indemnify Broker against any losses, damages, liabilities or expenses incurred by Broker, in each case for actions or losses in connection with or arising out of this Sales Plan and any amended or subsequent sales plan.

12. This Sales Plan may be executed in one or more counterparts (whether delivered by facsimile or otherwise), all of which shall constitute one and the same instrument.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, the undersigned have signed this Sales Plan as of the date first written above.

	Goldman, Sachs & Co.

/s/ Richard A. Kay	By:	/s/ Michael Dweck
Richard A. Kay	Name: Title:	Michael Dweck Managing Director

Annex A

Richard A. Kay

Legato Systems, Inc.

Broker shall sell up to a maximum of 2,500,000 Shares under this Sales Plan pursuant to the following limit orders:


Date	Shares to be sold*	$ Limit**	Cost Basis	Purchase Date	Nature of Acquisition


Each Trading Day commencing June 16, 2003 through and including June 11, 2004	[***]	[***]


Each Trading Day commencing June 16, 2003 through and including June 11, 2004	[***]	[***]


Each Trading Day commencing June 16, 2003 through and including June 11, 2004	[***]	[***]

Share amounts and limit prices listed shall be increased or decreased to reflect stock splits, stock dividends, recapitalizations and the like, should they occur

Any Sale executed at a time when more than one limit order is in effect shall be allocated to the highest such limit order.

Commissions:

If the average per share price of Broker’s daily executions hereunder is less than $8.00, then Seller shall pay a per share commission of $0.06. If the average per share price of Broker’s daily executions hereunder is $8.00 or greater, then Seller shall pay a per share commission of $0.08. Such commissions comply with the requirements of Rule 144(g)(1).

[SIGNATURE PAGE FOLLOWS]

[***]

Means that certain confidential information has been deleted from this document and filed separately with the Securities and Exchange Commission.

IN WITNESS WHEREOF, the undersigned have signed this Annex A to the Sales Plan of Richard A. Kay as of the date of such Sales Plan.

	Goldman, Sachs & Co.

/s/ Richard A. Kay	By:	/s/ Michael Dweck
Richard A. Kay	Name: Title:	Michael Dweck Managing Director

ANNEX B

FORM OF TERMINATION NOTICE

Termination Notice, dated as of ___________, 200 , of the Sales Plan, dated __________, _____ (the “Sales Plan”), between ____________ (“Seller”) and Goldman, Sachs & Co. (“Broker”).

WHEREAS, Seller and Broker have previously entered into the Sales Plan;

WHEREAS, Seller desires to terminate the Sales Plan in accordance with the terms thereof as hereinafter provided; and

WHEREAS, all capitalized and undefined terms have the meanings assigned to them in the Sales Plan;

NOW THEREFORE, the Seller hereby notifies Broker as follows:

1. Any Sales set forth under Annex A to the Sales Plan that have not been executed shall be cancelled as promptly as practicable but in no event later than three days following the date of delivery of this Termination Notice to Broker in accordance with the notice provisions set forth under paragraph 9 of the Sales Plan. The last day on which Sales are executed shall be the “Termination Date”.

2. Seller represents and warrants that Seller is not aware of material, nonpublic information with respect to the Issuer or any securities of the Issuer (including the Stock) and is providing this Termination Notice in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1.

3. Seller agrees that Broker shall not have any liability whatsoever to the Seller for any action previously or hereafter taken or omitted to be taken in connection with the Sales Plan or this Termination Notice or the making of any Sale thereunder, or for any sales of any securities of the Issuer that may be effected by Seller following the Termination Date, unless such liability is determined in a non-appealable order of a court

of competent jurisdiction to be solely the result of Broker’s bad faith or gross negligence. Seller further agrees to hold Broker free and harmless from any and all losses, damages, liabilities or expenses (including reasonable attorneys’ fees and costs) incurred or sustained by Broker in connection with or arising out of any suit, action or proceeding relating to the Sales Plan or this Termination Notice or any other sales of shares of any securities of the Issuer that may be effected by Seller following the Termination Date (each an “Action”) and to reimburse Broker for its expenses, as they are incurred, in connection with any Action, unless such loss, damage, liability or expense is determined in a non-appealable order of a court of competent jurisdiction to be solely the result of Broker’s bad faith or gross negligence.

4. This Termination shall be governed by and construed in accordance with the laws of the State of New York.

IN WITNESS WHEREOF, the undersigned have signed this Termination Notice as of the date first written above.

__________________________________

[Name of Seller] :

________________________________________

(Goldman, Sachs & Co.)

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