Definitions. Terms used with initial capitalization in this Amendment Number Four and not otherwise defined herein shall have the meaning provided in the Agreement.
Definitions. Except as otherwise defined in this Agreement or as the context may otherwise require, the capitalized terms used in this Agreement shall have the meanings ascribed to them in Annex I attached hereto and incorporated herein by reference.
Definitions. The definitions of capitalized terms used in this Agreement (if not provided where a capitalized term initially appears) are provided in the last Section hereof.
Definitions. Unless determined otherwise by the Administrator and set forth in the applicable Term Sheet the following terms shall have the indicated meanings: (a) "Account" means the bookkeeping account maintained on the books and records of Morgan Stanley in a Participant's name to record Allocated Amounts and credits or debits thereto in accordance with SECAP. An Account is established only for purposes of tracking Notional Investments and not to segregate assets or to identify assets that may be used... to make payments under SECAP. (b) "Account Value" means the amount reflected on the books and records of Morgan Stanley as the value of a Participant's Account at any date of determination, as determined in accordance with SECAP. (c) An "Accredited Investor" is an individual who is able to represent at the time of allocation that he or she meets the conditions for being an "accredited investor" set forth in Rule 501 promulgated under the Securities Act (or any successor provision). For purposes of any income test including such conditions, income does not include the value of any mandatory allocations, such as annual equity-based or other incentive compensation awards. (d) "Allocated Amount" means the amount of Eligible Compensation allocated by a Participant to SECAP, as accepted or modified by the Administrator pursuant to SECAP. The amount a Participant allocates will be taken from the Participant's Eligible Compensation, after the following allocations (as applicable): (i) any non-elective equity-based awards or other incentive compensation; and 14 (ii) bonus waivers; but before the following deductions (as applicable): (i) elective equity-based awards (e.g., Voluntary Equity Incentive Compensation Program or Voluntary Equity Participation Plan); (ii) Morgan Stanley 401(k) Plan; and (iii) income taxes and US Social Security and Medicare tax. (e) "Allocation Preference" means, for each Fiscal Year's participation, a request made by a Participant to allocate payment of an amount of the Participant's Eligible Compensation subject to the terms and conditions of SECAP. An Allocation Preference cannot be revoked by the Participant or the Firm after the applicable deadline. (f) "Allocation Year" means the Fiscal Year with respect to which the Participant's Allocated Amount under SECAP relates. For instance, (i) with respect to year-end discretionary bonuses, the Allocation Year is the year in which the bonuses are earned even if the bonuses are paid in a subsequent Fiscal Year and (ii) with respect to commission payouts or notional revenue credit advances, the Allocation Year is the year in which the commission payouts or notional revenue credit advances are earned. (g) "Applicable Account Value" means the portion of the Participant's Account Value that corresponds to the applicable Fiscal Year's Allocated Amount. (h) "Beneficiary" means the person designated by a Participant pursuant to Section 14 to receive any payments under SECAP in the event of the Participant's death. (i) A "Cancellation Event" shall have the meaning set forth in the applicable Term Sheet. (j) "Chief Administrative Officer" means the officer of Morgan Stanley to whom the Compensation, Management Development and Succession Committee of Morgan Stanley's Board of Directors has delegated authority to administer SECAP. (k) "Descriptive Materials" means the applicable Term Sheet, International Supplement, if any, the SECAP plan document and all other brochures, letters, memoranda or other documents from Morgan Stanley to the Participant regarding SECAP, including all electronic-based materials. 15 (l) "Disability" means any condition that would qualify for a benefit under any group long-term disability plan maintained by the Firm and applicable to the Participant. (m) "Distribution Commencement Date" means, with respect to each Allocation Year, the date specified in a Participant's Allocation Preference for commencement of the distributions in respect of the Applicable Account Value, as accepted or modified by the Administrator pursuant to SECAP. (n) "Distribution Method" means, with respect to each Allocation Year, the form of payment method (lump sum or two to ten annual installments) specified in a Participant's Allocation Preference in respect of the Applicable Account Value, as accepted or modified by the Administrator pursuant to SECAP. (o) "Eligible Compensation" means the cash compensation a Participant may allocate pursuant to SECAP, as determined by the Administrator from time to time and set forth in the applicable Term Sheet. (p) "Eligible Employees" shall have the meaning set forth in the applicable Term Sheet. (q) "Executive Compensation Department" means Morgan Stanley's Executive Compensation Department or any other department of Morgan Stanley that succeeds to the functions of the Executive Compensation Department. (r) The "Firm" means Morgan Stanley (including any successor thereto) together with its subsidiaries and other affiliates. (s) "Fiscal Year" means a fiscal year of Morgan Stanley. (t) "Internal Revenue Code" means the Internal Revenue Code of 1986, as amended, and the rules, regulations and guidance thereunder. (u) "Legal Requirement" means any law, regulation, ruling, judicial decision, accounting standard, regulatory guidance or other legal requirement. (v) "Notional Investments" means the Referenced Funds or other investment vehicles used to measure the return (positive or negative) to be attributed to Allocated Amounts. (w) "Participant" means an Eligible Employee who participates in SECAP. (x) "Preferred Distribution Commencement Date" means, with respect to each Allocation Year, the date specified in a Participant's Allocation Preference for commencement of the distributions in respect of the Applicable Account Value. A Participant shall select a separate Preferred Distribution Date for each Applicable Account Value. 16 (y) "Preferred Distribution Method" means, with respect to each Allocation Year, the form of payment method (lump sum or two to ten annual installments) specified in a Participant's Allocation Preference in respect of the Applicable Account Value. (z) "SECAP" means the Select Employees' Capital Accumulation Program. (aa) "Section 409A" means Section 409A of the Internal Revenue Code. (bb) "Securities Act" means the Securities Act of 1933, as amended. (cc) "Separation from Service" means a separation from service with the Firm for purposes of Section 409A determined using the default provisions set forth in Treasury Regulation §1.409A-1(h) or any successor regulation thereto. For purposes of this definition, Morgan Stanley's subsidiaries and affiliates include (and are limited to) any corporation that is in the same controlled group of corporations (within the meaning of Section 414(b) of the Internal Revenue Code) as Morgan Stanley and any trade or business that is under common control with Morgan Stanley (within the meaning of Section 414(c) of the Internal Revenue Code), determined in each case in accordance with the default provisions set forth in Treasury Regulation §1.409A-1(h)(3). (dd) "Term Sheet" means a written or electronic document which, for each specified Fiscal Year's allocation, sets forth those terms and conditions of SECAP that, pursuant to the terms of this plan document, are to be communicated in a Term Sheet, including terms and definitions that are not otherwise set forth herein or that the Administrator has determined to modify from those set forth herein. (ee) "Vesting Date" shall have the meaning set forth in the applicable Term Sheet with respect to the specified Fiscal Year's allocation.View More
Definitions. Whenever used in the Plan, the following terms shall have the meanings set forth in this Section 15. (a) "Alternative Termination Date" has the meaning ascribed in subsection (c) of Section 5. (b) "Board of Directors" or "Board" means the Board of Directors of Herman Miller, Inc., a Michigan corporation, at the time the term is applied. (c) "Change in Control" means: (i) The acquisition, by any one person or more than one person "acting as a group" (as described in subparagraph (D), below), of... Common Stock that, together with Common Stock held by such person or group, constitutes more than 50% of the total Fair Market Value or total voting power of Common Stock. (A) If any one person, or more than one person acting as a group, is considered to own more than 50% of the total Fair Market Value or total voting power of Common Stock, the acquisition of additional Common Stock by the same person or persons is not a Change in Control of the Company. (B) An increase in the percentage of Common Stock owned by any one person, or persons acting as a group, as a result of a transaction in which the Company acquires Common Stock in exchange for property will be treated as an acquisition of Common Stock for purposes of paragraph (i). (C) Paragraph (i) applies only when there is a transfer of Common Stock (or issuance of Common Stock), and Common Stock remains outstanding after the transaction. (D) For purposes of this subsection (c), persons will not be considered to be acting as a group solely because they purchase or own Common Stock at the same time, or as a result of the same public offering. Persons will be considered to be acting as a group if they are owners of a corporation that enters into a merger, consolidation, purchase or acquisition of stock, or similar business transaction with the Company. If a person, including an entity, owns both Common Stock and stock of another corporation and the Company and such corporation enter into a merger, consolidation, purchase or acquisition of stock, or similar transaction, such shareholder is considered to be acting as a group with other shareholders in the Company prior to the transaction giving rise to the change and not with respect to the ownership interest in the other corporation. (E) For purposes of this subsection (c), Section 318 of the Internal Revenue Code of 1986, as amended applies to determine the ownership of Common Stock. Common Stock underlying a vested option is considered owned by the individual who holds the vested option, and the Common Stock underlying an unvested option is not considered owned by the individual who holds the unvested option. However, if a vested option is exercisable for Common Stock that is not "substantially vested" (as that term is defined in Section 1.83-3(b) and (j) of the Treasury Regulations), the Common Stock underlying the option is not treated as owned by the individual who holds the option. (F) For purposes of this subsection (c), a "person" means an individual, a trust, estate, partnership, association, company, or corporation; (ii) The acquisition, by any one person or more than one person acting as a group, or the acquisitions over a 12-month period ending on the date of the most recent acquisition by such person or persons, of Common Stock possessing 35% or more of the total voting power of the Common Stock. If any one person, or more than one person acting as a group, possesses 35% or more of the total voting power of the Common Stock, the acquisition of additional control of the Company by the same person or persons is not considered to cause a Change in Control of the Company under this paragraph (ii) or under paragraph (i). A Change in Control under this paragraph (ii) also may occur in any transaction in which either of the two corporations involved in the transaction has a Change in Control under paragraph (i) or (iv); (iii) The replacement, during any 12-month period, of a majority of members of the Board by directors whose appointment or election is not endorsed by a majority of the members of the Board prior to the date of the appointment or election. A Change in Control under this paragraph (iii) also may occur in any transaction in which either of the two corporations involved in the transaction has a Change in Control under paragraph (i) or (iv); or (iv) The acquisition by any one person or more than one person acting as a group, or the acquisitions over a 12-month period ending on the date of the most recent acquisition by such person or persons, of assets from the Company that have a total gross fair market value equal to or more than 40% of the total gross fair market value of all of the assets of the Company immediately prior to such acquisition or acquisitions. (A) For purposes of paragraph (iv), "gross fair market value" means the value of the assets of the Company, or the value of the assets being disposed of, determined without regard to any liabilities associated with such assets. (B) A transfer of assets by the Company is not treated as a Change in Control if the assets are transferred to: (I) A shareholder of the Company (immediately before the asset transfer) in exchange for or with respect to Common Stock; (II) An entity, 50% or more of the total value or voting power of which is owned, directly or indirectly, by the Company; (III) A person, or more than one person acting as a group, that owns, directly or indirectly, 50% or more of the total value or voting power of all the outstanding stock of the Company; or (IV) An entity, at least 50% of the total value or voting power of which is owned, directly or indirectly, by a person described in clause (III). For purposes of this subparagraph (B), a person's status is determined immediately after the transfer of assets.View More
Definitions. The following definitions shall hereafter mean the following, for purposes of this Amendment and the Credit Agreement as amended by this Agreement: "Account Debtor" has the meaning assigned to such term in the definition of "Consolidated Eligible Accounts Receivable." 1 "Aggregate Revolving Loan Commitments" shall mean the aggregate of all Revolving Loan Commitments of all the Lenders. "Alternate Capital" shall mean cash obtained by Borrower through the issuance of any common... stock, preferred stock, warrant or other equity (other than the exercise of stock options by current or former employees, officers and directors) or through Subordinated Indebtedness, in each case on such terms and in such amounts as are approved by the Required Lenders. "Borrowing Base" means one hundred percent (100%) of Consolidated Eligible Accounts Receivable. "Excess Cash Amount" shall mean the amount by which the Non-Earmarked Cash exceeds $5,000,000. "Grantor" shall mean Borrower and each Subsidiary that is a party to a Security Agreement. "Large Disputed Accounts" shall mean Accounts with gross amounts outstanding greater than $1,000,000 (before consideration of (i) costs and estimated earnings in excess of billings, (ii) billings in excess of costs and estimated earnings or (iii) any bad debt reserves associated with any such Accounts) that are in dispute as of November 30, 2004. "Loan Parties" means, collectively, Borrower and each Person (other than Agent or any Lender) executing a Loan Document including, without limitation, each Guarantor, each Grantor and each Person executing a Collateral Document, each of which shall be referred to individually herein as a "Loan Party." "Net Cash Proceeds" shall mean (a) with respect to any Alternate Capital or other funds received through Subordinated Indebtedness, cash received by Borrower on or after the date of incurrence of such Subordinated Indebtedness after payment of all attorneys' fees and usual and customary underwriting commissions, closing costs, and other reasonable expenses associated with such Subordinated Indebtedness; and (b) with respect to any Alternate Capital or other funds received through the issuance of any common stock, preferred stock, warrant or other equity, cash received by Borrower on or after the date of such equity issuance, from such equity issuance after payment of all attorneys' fees and usual and customary underwriting commissions, closing costs, and other reasonable expenses associated with such equity issuance. "Non-Earmarked Cash" shall mean (i) the aggregate of all Cash Equivalent Investments of Borrower and all Subsidiaries excluding (ii) (A) funds required by Sections 2.7.2 (i), 2.7.2(ii), 2.7.2 (iv), or 2.7.2(v) to be paid as mandatory prepayments under such Sections, provided that such amounts are paid as required by such Sections immediately upon being received by Borrower or the applicable Subsidiary in collected funds, and (B) funds kept on hand in the ordinary course of business of Borrower and its Subsidiaries for payroll funding. "Responsible Officer" means the chief executive officer, president, chief financial officer, treasurer or assistant treasurer of a Loan Party. Any document delivered to Agent or any 2 Lender that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party. "Revolving Loan Commitment" means, for each Lender, the obligation of such Lender to make Revolving Loans to, and participate in Facility LCs issued upon the application of, the Borrower in an aggregate amount not exceeding the amount set forth below or as set forth in any Notice of Assignment relating to any assignment that has become effective pursuant to Section 12.3.2, as such amount may be modified from time to time pursuant to the terms hereof.View More
Definitions. (a) Section 1.01 of the Existing Credit Agreement shall be amended by inserting the following definitions (or, in the case of any of the following defined terms that are already defined in the Existing Credit Agreement, by amending and restating in its entirety each such term to read as set forth below) in their proper respective alphabetical locations: "Applicable Additional Margin" means 0.10% per annum. "Applicable Margin" and "Applicable Facility Fee Rate" means, for any day, with... respect to any Euro-Dollar Loan or with respect to the facility fees payable hereunder, as the case may be, the applicable rate per annum set forth below under the caption "Applicable Margin" or "Applicable Facility Fee Rate", respectively, based upon the ratings by Moody's and S&P, respectively, applicable on such date to the Index Debt: Index DebtRatings (S&P/Moody's) ApplicableMargin Applicable Facility Fee Rate Category 1 > A / A2 0.215 % 0.06 % Category 2 A- / A3 0.245 % 0.08 % Category 3 BBB+ / Baa1 0.30 % 0.10 % Category 4 £ BBB / Baa2 0.50 % 0.15 % For purposes of the foregoing, (a) if the ratings established or deemed to have been established by Moody's and S&P for the Index Debt shall fall within different Categories that are one Category apart, the Applicable Margin and the Applicable Facility Fee Rate shall be determined by reference to the Category of the higher of the two ratings; (b) if the ratings established or deemed to have been established by Moody's and S&P for the Index Debt shall fall within different Categories that are more than one Category apart, the Applicable Margin and the Applicable Facility Fee Rate shall be determined by reference to the Category next below that of the higher of the two ratings; (c) if only one of Moody's and First Amended and Restated Credit Agreement S&P shall have in effect a rating for the Index Debt, the Applicable Margin and the Applicable Facility Fee Rate shall be determined by reference to the Category of such rating; (d) if neither Moody's nor S&P shall have in effect a rating for the Index Debt (other than by reason of the circumstances referred to in the last sentence of this definition), then the applicable rating shall be determined by reference to Category 4; and (e) if the ratings established or deemed to have been established by Moody's and S&P for the Index Debt shall be changed (other than as a result of a change in the rating system of Moody's or S&P), such change shall be effective as of the date on which it is first announced by the applicable rating agency, irrespective of when notice of such change shall have been furnished by the Company to the Administrative Agent and the Banks pursuant to Section 5.01 or otherwise. Each change in the Applicable Margin and the Applicable Facility Fee Rate shall apply during the period commencing on the effective date of such change and ending on the date immediately preceding the effective date of the next such change. If the rating system of Moody's or S&P shall change, or if either such rating agency shall cease to be in the business of rating corporate debt obligations, the Company and the Banks shall negotiate in good faith to amend this definition to reflect such changed rating system or the unavailability of ratings from such rating agency and, pending the effectiveness of any such amendment, the Applicable Margin and the Applicable Facility Fee Rate shall be determined by reference to the rating of Moody's and/or S&P, as the case may be, most recently in effect prior to such change or cessation. "Commitment Termination Date" means December 10, 2009 or, if such day is not a Business Day, the next preceding Business Day. "Commitment Utilization Day" means (i) any day on which the aggregate principal amount of outstanding Loans (excluding Money Market Loans) exceeds 50% of the aggregate amount of the Commitments and (ii) any day following the termination of the Commitments on which any Loans are outstanding hereunder. "Company's 2003 Form 10-K" means the Company's annual report on Form 10-K for 2003, as filed with the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended. "JPMCB" means JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank). "Restatement Effective Date" has the meaning set forth in Section 4 of the First Amended and Restated Credit Agreement dated as of December 10, 2004. (b) The definition of ""Applicable Margin", "Applicable Additional Margin" and "Applicable Commitment Fee Rate"" contained in Section 1.01 of the Existing Credit Agreement shall be deleted in its entirety. (c) The definition of "Commitment" shall be amended by inserting a new sentence at the end thereof to read as follows: "The aggregate amount of the Banks' Commitments is $500,000,000 as of the Restatement Effective Date." First Amended and Restated Credit Agreement (d) The definition of "Effective Date" contained in Section 1.01 of the Existing Credit Agreement shall be deleted in its entirety. (e) The definition of "LN(UK)" contained in Section 1.01 of the Existing Credit Agreement shall be deleted in its entirety. (f) Each reference to the term "Company's 2002 Form 10-K" in the Existing Credit Agreement shall be amended and replaced with the term "Company's 2003 Form 10-K".View More
Definitions. Clause (f) of the defined term "Permitted Indebtedness" in Section 14.1 of the Loan Agreement is amended and restated as follows: (f) Indebtedness of up to Ten Million Dollars ($10,000,000) secured exclusively by a security interest in a Deposit Account held with, or Certificate of Deposit issued by, the holder of such Indebtedness, and on terms reasonably acceptable to Agent;
