EXHIBIT 10.3
SCHEDULE
to the Master Agreement
dated as of October 8, 1997
between
SWISS BANK CORPORATION, and MYRIAD GENETICS, INC., a corporation
LONDON BRANCH organized under the laws of the State of
Delaware
("Party A") ("Party B")
PART 1
TERMINATION PROVISIONS
In this Agreement:
(a) "SPECIFIED ENTITY" means in relation to Party A for the purpose of:
Section 5(a)(v), NONE
Section 5(a)(vi), NONE
Section 5(a)(vii), NONE
Section 5(b)(iv), NONE
and in relation to Party B for the purpose of:
Section 5(a)(v), NONE
Section 5(a)(vi), NONE
Section 5(a)(vii), NONE
Section 5(b)(iv), NONE
(b) The definition of "SPECIFIED TRANSACTION" shall have the meaning specified
in Section 14 of the Agreement.
(c) The "CROSS DEFAULT" provisions of Section 5(a)(vi) will apply to both
parties but shall exclude any default that results solely from wire
transfer difficulties or an error or omission of an administrative or
operational nature (so long as sufficient funds are available to the
relevant party on the relevant date), but only if payment is made within
three Business Days after such transfer difficulties have been corrected or
the error or omission has been discovered.
If such provisions apply:
"SPECIFIED INDEBTEDNESS" means any obligation (whether present or future,
contingent or otherwise, as principal or surety or otherwise) in respect of
borrowed money or any Derivative Transaction other than any Specified
Transaction.
"THRESHOLD AMOUNT" means
(i) with respect to Party A, 2% of "Total Capital and Reserves" of Swiss Bank
Corporation as shown on the most recent annual audited financial statements
of Swiss Bank Corporation and
(ii) with respect to Party B, or any Specified Entity or Credit Support
Provider, the lesser of U.S. Dollars 10mm or 2% of the stockholders' equity
(however described) of Party B or the relevant Specified Entity or the
Credit Support Provider as shown on the most recent annual audited
financial statements of Party B or the relevant Specified Entity or the
Credit Support Provider.
(d) THE "CREDIT EVENT UPON MERGER" provisions of Section 5 (b)(iv) will not
apply to Party A or Party B.
(e) THE "AUTOMATIC EARLY TERMINATION" provision of Section 6 (a) will not apply
to Party A or Party B.
(f) "PAYMENTS ON EARLY TERMINATION". For the purpose of Section 6 (e) of this
Agreement:
(i) Loss will apply.
(ii) The Second Method will apply.
(g) "TERMINATION CURRENCY" means United States Dollars.
(h) "ADDITIONAL TERMINATION EVENT " will not apply.
PART 2
TAX REPRESENTATIONS
(a) Payer Representation. For the purpose of Section 3(e) of this Agreement,
Party A will make the following representation and Party B will make the
following representation:-
It is not required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, of any Relevant Jurisdiction to
make any deduction or withholding for or on account of any Tax from any payment
(other than interest under Section 2(e), 6 (d) (ii) or 6 (e) of this Agreement)
to be made by it to the other party under this Agreement. In making this
representation, it may rely on (i) the accuracy of any representations made by
the other party pursuant to Section 3 (f) of this Agreement, (ii) the
satisfaction of the agreement contained in Section 4 (a)(iii) of this Agreement
and the accuracy and effectiveness of any document provided by the other party
pursuant to Section 4 (a)(i) or 4 (a)(iii) of this Agreement and (iii) the
satisfaction of the agreement of the other party contained in Section 4 (d) of
this Agreement, provided that it shall not be a breach of this representation
where reliance is placed on clause (ii) and the other party does not deliver a
form or document under Section 4 (a)(iii) by reason of material prejudice to its
legal or commercial position.
(b) Payee Representations. For the purpose of Section 3(f) of this Agreement,
Party A makes the following representation:
Each payment received or to be received by it in connection with this Agreement
will be effectively connected with its conduct of a trade or business in the
United States of America.
PART 3
AGREEMENT TO DELIVER DOCUMENTS
For the purpose of Sections 4(a) (i) and (ii) of this Agreement, each party
agrees to deliver the following documents, as applicable:
(a) Tax forms, documents or certificates to be delivered are:
PARTY REQUIRED TO FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO
DELIVER DOCUMENT BE DELIVERED
Party A Department of the Treasury On or before
Internal Revenue Service execution of
Form 4224 this Agreement
and on an annual
basis thereafter
Party B Department of the Treasury On or before execution
Internal Revenue Service Form of this Agreement
W-9
(b) Other documents to be delivered are:
PARTY REQUIRED TO DATE BY WHICH TO BE COVERED BY SECTION 3(D)
DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE DELIVERED REPRESENTATION
Party A and Signature authentication On or before execution YES
Party B satisfactory the other of this Agreement
party hereto
Party B Copy (certified by an officer) On or before execution of YES
of the board resolution (or this Agreement
equivalent authorizing
documentation) permitting the
entering into of this Agreement
and Transactions hereunder
Party B Legal opinion satisfactory On or before execution of NO
to Party A regarding (inter this Agreement
alia) the ability of Party B
to enter into this Agreement
and Transactions hereunder
PART 4
MISCELLANEOUS
(a) ADDRESSES FOR NOTICES. For the purposes of Section 12(a) of this
Agreement:
(i) All notices or communications to Party A shall be sent to the address,
telex number, or facsimile number reflected below:
Address: Swiss Bank Corporation, London Branch, ▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, Attention: Swaps Group, Telex: 887434, Answerback:
SBCO G
(ii) All notices or communications to Party B shall be sent to the address,
telex number, or facsimile number reflected below:
Address: Myriad Genetics, Inc., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
(b) PROCESS AGENT. For the purpose of Section 13(c) of this Agreement:
Party A appoints as its Process Agent: Swiss Bank Corporation, New York
Branch, ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Legal Affairs
Party B appoints as its Process Agent: N/A
(c) OFFICES. The provisions of Section 10(a) will apply to Party A and Party
B, it being the understanding of the parties that while obligations entered
into by an Office of a party pursuant to this Agreement constitute
obligations of the company (and not merely of such Office), each party
will, in respect of any Transaction and in the ordinary course of business,
send payments and notices to and receive payments and notices from the
Office of the other party specified in the Confirmation of such Transaction
rather than any other office of such party. A party (the "owed party") may
seek payment from the head office of the other party (the "owing party")
with
respect to this Agreement in the event that an amount payable to the
owed party by the owing party pursuant to this Agreement (including any
amount payable as a result of the occurrence or designation of an Early
Termination Date) has not been paid in full when due.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement
neither Party A nor Party B is a Multibranch Party.
(e) CALCULATION AGENT. The Calculation Agent is Party A, unless otherwise
specified in a Confirmation in relation to the relevant Transaction.
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document: NONE
(g) CREDIT SUPPORT PROVIDER. Credit Support Provider means: NOT APPLICABLE
(h) GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO
CHOICE OF LAW DOCTRINE).
(i) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) of this Agreement
will apply.
(j) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement.
PART 5
OTHER PROVISIONS
(a) SET-OFF. Without affecting the provisions of the Agreement requiring the
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calculation of certain net payment amounts, all payments under this
Agreement will be made without set-off or counterclaim; provided, however,
that upon the designation of any Early Termination Date, in addition to and
not in limitation of any other right or remedy (including any right to set
off, counterclaim, or otherwise withhold payment or any recourse to any
Credit Support Document) under applicable law the Non-defaulting Party or
Non-affected Party (in either case, "X") may without prior notice to any
person set off any sum or obligation (whether or not arising under this
Agreement and whether matured or unmatured, whether or not contingent and
irrespective of the currency, place of payment or booking office of the sum
or obligation) owed by the Defaulting Party or Affected Party (in either
case, "Y") to X or any Affiliate of X against any sum or obligation
(whether or not arising under this Agreement, whether matured or unmatured,
whether or not contingent and irrespective of the currency, place of
payment or booking office of the sum or obligation) owed by X or any
Affiliate of X to Y. If any sum or obligation is unascertained, X may in
good faith estimate that sum or obligation and set-off in respect of that
estimate, subject to X or Y, as the case may be, accounting to the other
party when such sum or obligation is ascertained.
(b) REPRESENTATIONS AND WARRANTIES. Section 3(a) is amended by adding the
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following paragraphs (vi) and (vii):
"(vi) NO AGENCY. It is entering into this Agreement and each Transaction as
principal (and not as agent or in any other capacity, fiduciary or
otherwise).
(vii) ELIGIBLE SWAP PARTICIPANT. It is an "eligible swap participant" as
that term is defined by the United States Commodity Futures Trading
Commission in 17 C.F.R. (S)35.1(b)(2) and it has entered into this
Agreement and it is entering into each Transaction in connection with its
line of business (including financial intermediation services) or the
financing of its business; and the material terms of this Agreement and
such Transaction have been individually tailored and negotiated."
(c) RELATIONSHIP BETWEEN PARTIES. Each party will be deemed to represent to
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the other party on the date on which it enters into a Transaction that
(absent a written agreement between the parties that expressly imposes
affirmative obligations to the contrary for that Transaction):
(i) NON-RELIANCE. It is acting for its own account, and it has made its
own independent decisions to enter into that Transaction and as to whether that
Transaction is appropriate or proper for it based upon its own judgment and upon
advice from such advisers as it has deemed necessary. It is not relying on any
communication (written or oral) of the other party as investment advice or as a
recommendation to enter into that Transaction; it being understood that
information and explanations related to the terms and conditions of a
Transaction shall not be considered investment advice or a recommendation to
enter into that Transaction. No communication (written or oral) received from
the other party shall be deemed to be an assurance or guarantee as to the
expected results of that Transaction.
(ii) ASSESSMENT AND UNDERSTANDING. It is capable of assessing the merits
of and understanding (on its own behalf or through independent professional
advice), and understands and accepts the terms, conditions and risks of that
Transaction. It is also capable of assuming, and assumes, the risks of that
Transaction.
(iii) STATUS OF PARTIES. The other party is not acting as a fiduciary for
or an adviser to it in respect of that Transaction.
(d) TRANSFER. Section 7 is amended by the deletion of "and" at the end of
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paragraph (a), the deletion of the full stop at the end of paragraph (b) and the
insertion of a semi-colon followed by "and" in its place, and the insertion of a
new paragraph after paragraph (b) at the end thereof "(c) Party A may transfer
its rights and obligations under this Agreement in whole (but not in part) to
any branch of Swiss Bank Corporation provided that as a result of such transfer:
(i) it does not become unlawful for either party to perform any obligation
under this Agreement;
(ii) neither party is required to pay to the other party an additional
amount under Section 2(d)(i)(4) or to receive a payment from which an amount is
required to be deducted or withheld for or on account of a Tax and no additional
amount is required to be paid in respect of such Tax under Section 2(d)(i)(4);
and
(iii) no Event of Default occurs in respect of either party."
(e) WAIVER OF JURY TRIAL. Each party hereby irrevocably waives any and all
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right to trial by jury in any suit, action or proceeding arising out of or
relating to this Agreement or any Transaction and acknowledges that this waiver
is a material inducement to the other party's entering into this Agreement.
(f) CONSENT TO RECORDING. The parties agree that each may electronically
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record all telephonic conversations between them and that any such
recordings may be submitted in evidence to any court or in any Proceedings
for the purpose of establishing any matters pertinent to any Transaction,
provided any such conversation is on a telephone line emitting an audible
tone indicating that such line is being recorded.
(g) SEVERANCE. In the event any one or more of the provisions contained in
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this Agreement should be held invalid, illegal or unenforceable in any
respect, such provisions shall be severed from this Agreement to the extent
of such invalidity, illegality or unenforceability, unless such severance
shall substantially impair the benefits of the remaining portions of this
Agreement. The Agreement after such severance shall remain the valid,
binding and enforceable obligation of the parties hereto.
(h) NETTING PROVISIONS. If an Early Termination Date occurs, amounts
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determined in respect of all Terminated Transactions shall be aggregated
with and netted against one another in performing the calculations
contemplated by Section 6(e). If the calculation of the amount payable
pursuant to Section 6(e) in respect of an Early Termination Date would
involve the aggregation or netting of amounts determined in respect of
Transactions of different types, and
under applicable law amounts determined in respect of one or more types of
Transactions hereunder may not be aggregated with or netted against amounts
determined in respect of one or more other types of Transactions in performing
such calculation, then, notwithstanding the foregoing or any other provision of
this Agreement, aggregation and netting will be performed within and between
types of Transactions to the fullest extent permitted by law in performing such
calculation, and the set-off provisions of this Agreement and applicable law
shall be applied to the resulting amount or amounts.
(i) DEFINITIONS. The following definition shall appear in Section 14 after the
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definition of "Defaulting Party":
"'Derivative Transaction' means:
(a) any transaction (including an agreement with respect thereto) which is a
rate swap transaction, basis swap, forward rate transaction, commodity
swap, commodity option, equity or equity index swap, equity or equity index
option, bond option, interest rate option, foreign exchange transaction,
repurchase transaction, reverse repurchase transaction, precious metals
transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency
option or any other similar transaction (including any option with respect
to any of these transactions); and
(b) any combination of these transactions."
(j) ONE-WAY TRANSACTION. Party B agrees that in the event the parties enter
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into a Transaction, other than a call option transaction written by either
Party A or Party B where the property underlying the transaction is the
common stock of Party B, then Party B will enter into a new Master
Agreement with Party A or will amend this Agreement, in either case in a
form satisfactory to Party A and Party B.
PART 6
ADDITIONAL TERMS FOR EQUITY AND EQUITY INDEX TRANSACTIONS
Notwithstanding anything to the contrary in this Agreement, the following
provisions will apply for the purposes of any Transaction which is an option on
a single security, a basket of securities or an index, including any Transaction
which contemplates by its terms the physical delivery of shares, participation
certificates or other equity securities ("Shares"):
(a) DIVIDENDS AND EXPENSES. The following provision shall be included as
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Section 2(f):
"(f) DIVIDENDS AND EXPENSES ON DELIVERY: All dividends on the Shares to be
delivered shall be payable to and all costs and expenses incurred in connection
with the delivery of Shares (including, without prejudice to Section 2(d), any
Tax or Stamp Tax and any interest or penalties payable in connection therewith)
shall be payable by the party who would customarily receive such dividend or
bear such costs or expenses under a contract for the purchase of the Shares by
the deliveree through the clearance system specified in the relevant
Confirmation."
(b) DEFAULT INDEMNITY. If prior to the occurrence or effective designation of
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an Early Termination Date in respect of any Transaction a party defaults in
the performance of any obligation under such Transaction required to be
settled by delivery, it will indemnify the other party on demand for any
reasonable costs, losses or expenses (including the costs of borrowing
Shares, if applicable) resulting from such default.
(c) REPRESENTATIONS. Each party acknowledges that (i) certain Transactions may
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be securities that have not been registered under the Securities Act of
1933 of the United States of America, as amended (the "1933 Act"), or under
the laws of any state, (ii) no federal or state agency has passed upon such
Transactions or made any finding or determination as to the
fairness of such Transactions and (iii) such Transactions are intended to
be exempt from registration under the 1933 Act. In addition to the
representations made pursuant to Section 3 of this Agreement,each party
represents to the other party with respect to any such Transaction that (i)
it is an "accredited investor," as such term is defined in Regulation D
promulgated under the 1933 Act, (ii) it has had access to such information
regarding such Transaction and the other party as it requested, (iii) it
has knowledge and experience in financial and business matters and is
capable of evaluating the merits and risks of such Transaction and is able
to bear the economic risk of its investment, including without limitation
the risk of complete loss on the investment, (iv) it acquired its interest
in such Transaction for its own account for investment and not with a view
to, or in connection with, any distribution of such interests, (v) it will
not sell, transfer, assign or otherwise dispose such Transaction or
interests herein and therein in violation of the 1933 Act and the rules and
regulations promulgated thereunder, and (vi) with respect to any
Transaction which contemplates by its terms the physical delivery of
Shares, at the time of the delivery of any such Shares to the other party,
it possesses full legal and beneficial title thereto and it is delivering
the same free and clear of any lien, claim, encumbrance or security
interest of any kind whatsoever created by the deliveror.
