EXHIBIT 10 STOCK AGREEMENT --------------- THIS AGREEMENT is made as of this ___ day of ____, 1996, between MERRILL LYNCH CAPITAL SERVICES, INC. ("Purchaser"), a Delaware corporation and wholly- owned subsidiary of MERRILL LYNCH & CO., INC., a Delaware corporation ("ML & Co."), ML & Co. and Eli Broad ("Seller"). WHEREAS, ML & Co. has filed with the Securities and Exchange Commission (the "SEC") a registration statement on Form S-3 (File No. 33-65135) and Post- Effective Amendment No. 2 thereto contemplating the offering of up to 3,450,000 of its Structured Yield Product Exchangeable for Stock(SM), ____% STRYPES(SM) Due _____, 1999 (the "STRYPES"), the terms of which require ML & Co. to pay and discharge the STRYPES on _____, 1999 by delivering to the holders thereof a specified number of shares of Common Stock, par value $1.00 per share (the "SunAmerica Common Stock"), of SunAmerica, Inc., a Maryland corporation ("SunAmerica"), or, at ML & Co.'s option, an amount in cash. WHEREAS, ML & Co. has agreed, pursuant to an underwriting agreement dated the date hereof (the "Underwriting Agreement") between ML & Co. and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated (the "Underwriter"), to issue and sell to the Underwriter an aggregate of 3,000,000 STRYPES (the "Initial STRYPES") and, at the Underwriter's option, all or any part of 450,000 additional STRYPES (the "Option STRYPES") to cover over- allotments, if any. WHEREAS, the STRYPES are to be issued under an indenture, dated as of April 1, 1983 and restated as of April 1, 1987 (as amended and supplemented from time to time, the "Principal Indenture"), between ML & Co. and Chemical Bank (successor by merger to Manufacturers Hanover Trust Company), as trustee (the "Trustee"), as further amended and supplemented by the Ninth Supplemental Indenture, dated as of ______, 1996 (the "Supplemental Indenture"), between ML & Co. and the Trustee, relating to the STRYPES. The Principal Indenture, as amended and supplemented by the Supplemental Indenture, is hereinafter referred to as the "Indenture." WHEREAS, in order to obtain the cash and/or shares of SunAmerica Common Stock (or, in the event there shall occur a Reorganization Event (as such term is defined in the Supplemental Indenture), cash, securities and/or other property in lieu thereof) required to satisfy its obligations under the STRYPES, ML & Co. has agreed to purchase from Purchaser, and Purchaser has agreed to sell to ML & Co., (i) concurrent with the issuance and sale of the Initial STRYPES, an obligation of Purchaser (the "Initial Subsidiary STRYPES") and (ii) concurrent _____________________ (SM) Service mark of Merrill Lynch & Co., Inc. with each issuance and sale of any Option STRYPES, an additional obligation of Purchaser (an "Option Subsidiary STRYPES"); the Initial Subsidiary STRYPES and each Option Subsidiary STRYPES are hereinafter collectively referred to as the "Subsidiary STRYPES". WHEREAS, Seller owns a number of shares of Nontransferable Class B Stock, par value $1.00 per share (the "Nontransferable Class B Stock"), of SunAmerica in excess of the maximum number of shares of SunAmerica Common Stock that would be required by Purchaser to satisfy its obligations under the Subsidiary STRYPES; the SunAmerica Common Stock and the Nontransferable Class B Stock are hereinafter collectively referred to as the "SunAmerica Stock". WHEREAS, in exchange for certain consideration to be paid by Purchaser and to be established hereunder, Purchaser and Seller desire to provide for the future purchase, sale and delivery of a certain number of shares of Nontransferable Class B Stock, which Nontransferable Class B Stock will automatically convert to SunAmerica Common Stock upon delivery thereof to Purchaser pursuant to the provisions of this Agreement, (or, in the event there shall occur a Restructuring Event (as such term is defined in Section 1.2(h)(2) hereof), cash, securities and/or other property in lieu thereof), subject to Seller's right to deliver cash in lieu thereof, that would enable Purchaser to pay and discharge the Subsidiary STRYPES on the maturity date thereof or redeem any of the Subsidiary STRYPES on any redemption date, without taking into account any default with respect to the Subsidiary STRYPES or any acceleration of the maturity of the Subsidiary STRYPES resulting therefrom. WHEREAS, Seller and Purchaser desire that, at the option of Seller, the respective future purchase, sale and delivery obligations with respect to the Contract Shares (as such term is defined in Section 1.2(j) hereof) at any Closing (as such term is defined in Section 3.1 hereof) can be settled entirely, but not less than entirely, through cash settlement in lieu of delivery of the Contract Shares. WHEREAS, Seller has agreed, pursuant to a Collateral Agreement dated as of _________, 1996 (the "Collateral Agreement"), among Purchaser, Seller and _________________, as collateral agent (the "Collateral Agent"), under the circumstances set forth therein, to pledge and grant to Purchaser a first priority lien on, and security interest in, and right to set off against, all of Seller's right, title and interest in and to an aggregate of ________ shares of any combination of SunAmerica Stock (or, in the event there shall occur a Restructuring Event (as such term is defined in Section 1.2(h)(2) hereof), cash, securities and/or other property in lieu thereof) and any other cash or securities ("Substitute Collateral") held thereunder; all such shares of SunAmerica Stock (or, in the event there shall occur a Restructuring Event, cash, securities and/or other property in lieu thereof) and any Substitute Collateral are hereinafter referred to as the "Collateral Property". WHEREAS, the ownership, voting rights and rights to receive any dividends or other distributions in respect of the Collateral Property consisting of SunAmerica Stock (the "Collateral Shares") shall remain with Seller unless and until delivery, if any, of the Collateral 2 Shares to Purchaser pursuant to the provisions of this Agreement. Upon the delivery of any shares of Nontransferable Class B Stock to Purchaser pursuant to the provisions of this Agreement, such shares of Nontransferable Class B Stock will automatically convert to SunAmerica Common Stock. NOW, THEREFORE, in consideration of their mutual covenants herein contained, the parties hereto, intending to be legally bound, hereby mutually covenant and agree as follows: 1. Definitions ----------- 1.1. General. For all purposes of this Agreement, except as otherwise ------- expressly provided or unless the context otherwise requires, the terms defined in this Section have the meanings assigned to them in this Section. 1.2. Definitions. ----------- (a) "Applicable Early Settlement Contract Shares" means a number of shares of Nontransferable Class B Stock (or, in the event there shall occur a Restructuring Event, cash, securities and/or other property in lieu thereof) equal to the Applicable Early Settlement Price on any Applicable Early Settlement Date divided by the Current Market Price of SunAmerica Common Stock determined as of the second Trading Day preceding the Early Settlement Notice Date relating to such Applicable Early Settlement Date. (b) "Applicable Early Settlement Date" means the date designated and fixed by Seller as the Early Settlement Date in any Early Settlement Notice as provided for in Section 3.1 hereof. (c) "Applicable Early Settlement Percentage" means the percentage of Seller's outstanding obligations under this Agreement designated and fixed by Seller in any Early Settlement Notice to be satisfied and discharged by Seller on the Applicable Early Settlement Date as provided for in Section 3.1 hereof. (d) "Applicable Early Settlement Price" means, with respect to any Applicable Early Settlement Date, an amount equal to the product of (i) an amount initially equal to $______, declining by $_____ on each day following the Contract Date to $____ on _____, 1999, and equal to $_____ thereafter multiplied by a percentage equal to 100% less the Previous Applicable Early Settlement Percentage and (ii) the Applicable Early Settlement Percentage. The Applicable Early Settlement Price shall be adjusted in any amendment made to this Agreement pursuant to Section 9.4(b) hereof by increasing each of the dollar amounts specified in (i) above, as each such dollar amount specified in (i) 3 above is stated as of the date immediately prior to the date on which any such amendment is made, by an amount, as determined separately for each such dollar amount specified in (i) above, equal to the product of (a) the dollar amount of each such dollar amount specified in (i) above, as each such dollar amount specified in (i) above is stated as of the date hereof, and (b) a fraction, the numerator of which shall equal the Option Share Amount specified in the related Option Notice and the denominator of which shall equal 3,000,000. (e) "Applicable Early Settlement Required Cash Component" means, with respect to any Applicable Early Settlement Date, an amount equal the product of (i) an amount equal to the amount which will have accrued at the rate of ___% on an amount equal to $_____ to but excluding any Applicable Early Settlement Date from the later of the Contract Date or the most recent Reset Date (as defined below), multiplied by a percentage equal to 100% less the Previous Applicable Early Settlement Percentage (provided that if the Applicable Early Settlement Date is a Reset Date, such amount shall be zero) and (ii) the Applicable Early Settlement Percentage. ________, ______, ______, and _______, beginning _______, 1996, each constitute a "Reset Date". For these purposes, accrued amounts shall be computed on the basis of a 360-day year of twelve 30-day months. The Early Settlement Required Cash Component shall be adjusted in any amendment made to this Agreement pursuant to Section 9.4(b) hereof by increasing the dollar amount specified in (i) above, as such dollar amount specified in (i) above is stated as of the date immediately prior to the date on which any such amendment is made, by an amount equal to the product of (i) the Option Share Amount specified in the related Option Notice and (ii) $_________. (f) "Business Day" means any day that is not a Saturday, a Sunday or a day on which the NYSE, banking institutions or trust companies in The City of New York are authorized or obligated by law or executive order to close. (g) "Closing Price" means the closing sales price regular way of any security on any day or, in case no such sale takes place on such day, the average of the reported closing bid and asked prices regular way on such day, in each case on the NYSE, or, if such security is not listed or admitted to trading on the NYSE, on the principal national securities exchange on which such security is listed or admitted to trading, or, if not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices of such security on the over- the-counter market on the day in question as reported by the National Quotation Bureau Incorporated, or a similarly generally accepted reporting service, or if not so available in such manner, as furnished by any NYSE member firm selected from time to time by the Board of Directors of ML & Co. for that purpose. (h) "Common Equivalent Rate" shall mean the Common Equivalent Rate in effect at any time as determined below. 4 (1) The Common Equivalent Rate shall be initially one share of SunAmerica Common Stock; provided, however, that such Common Equivalent Rate shall be subject to adjustment from time to time as provided below. (A) If SunAmerica shall: (1) pay a stock dividend or make a distribution with respect to SunAmerica Common Stock in shares of such stock; (2) subdivide or split the outstanding shares of SunAmerica Common Stock into a greater number of shares; (3) combine the outstanding shares of SunAmerica Common Stock into a smaller number of shares; or (4) issue by reclassification of shares of SunAmerica Common Stock any shares of common stock of SunAmerica; then, in any such event, the Common Equivalent Rate shall be adjusted by multiplying the Common Equivalent Rate in effect immediately prior to such event by a fraction, the numerator of which shall be the number of shares of SunAmerica Common Stock outstanding immediately following such event, and the denominator of which shall be the number of shares of SunAmerica Common Stock outstanding immediately prior to such event. Each such adjustment shall become effective at the opening of business on the Business Day next following the record date for determination of holders of SunAmerica Common Stock entitled to receive such dividend or distribution in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, split, combination or reclassification. Each such adjustment shall be made successively. (B) If SunAmerica shall, after the date hereof, issue rights or warrants to all holders of SunAmerica Common Stock entitling them (for a period not exceeding 45 days from the date of such issuance) to subscribe for or purchase shares of SunAmerica Common Stock at a price per share less than the then Current Market Price of the SunAmerica Common Stock determined as of the second Trading Day preceding the date of such issuance, then in each case the Common Equivalent Rate shall be adjusted by multiplying the Common Equivalent Rate in effect immediately prior to the date of issuance of such rights or warrants by a fraction, the numerator of which shall be the number of shares of SunAmerica Common Stock outstanding on the date of issuance of such rights or warrants, immediately prior to such issuance, plus the number of additional shares of SunAmerica Common Stock offered for subscription or purchase pursuant to such rights or warrants, and the denominator of which shall be the number of shares of SunAmerica Common Stock outstanding on the date of issuance of such rights or warrants, immediately prior to such issuance, plus the number of additional shares of SunAmerica Common Stock which the aggregate offering price of the total number of shares of SunAmerica Common Stock so offered for subscription or purchase pursuant to such rights or warrants would purchase at such Current Market Price, which shall be determined by 5 multiplying such total number of shares by the exercise price of such rights or warrants and dividing the product so obtained by such Current Market Price. Such adjustment shall become effective at the opening of business on the Business Day next following the record date for the determination of stockholders entitled to receive such rights or warrants. To the extent that shares of SunAmerica Common Stock are not delivered after the expiration of such rights or warrants, or if such rights or warrants are not issued, the Common Equivalent Rate shall be readjusted to the Common Equivalent Rate which would then be in effect had such adjustments for the issuance of such rights or warrants been made upon the basis of delivery of only the number of shares of SunAmerica Common Stock actually delivered. Each such adjustment shall be made successively. (C) If SunAmerica shall pay a dividend or make a distribution to all holders of SunAmerica Common Stock of evidences of its indebtedness or other assets (including shares of capital stock of SunAmerica but excluding any cash dividends and any stock dividends or distributions referred to in subparagraph (A) above) or shall issue to all holders of SunAmerica Common Stock rights or warrants to subscribe for or purchase any of its securities (other than those referred to in subparagraph (B) above) (any of the foregoing being hereinafter referred to in this subparagraph (C) as the "Distributed Assets"), then in each such case, the Common Equivalent Rate shall be adjusted by multiplying the Common Equivalent Rate in effect on the record date referred to below by a fraction, the numerator of which shall be the Current Market Price per share of the SunAmerica Common Stock determined as of the second Trading Day preceding the record date for the determination of stockholders entitled to receive such dividend or distribution or such rights or warrants, and the denominator of which shall be such Current Market Price per share of SunAmerica Common Stock less the fair market value (as determined by the Board of Directors of ML&Co., whose determination shall be conclusive as of such record date) of the portion of the Distributed Assets so distributed applicable to one share of SunAmerica Common Stock. Each such adjustment shall become effective on the opening of business on the Business Day next following the record date for the determination of stockholders entitled to receive such dividend or distribution or such rights or warrants. To the extent that such dividend or distribution is not so paid or made, the Common Equivalent Rate shall be readjusted to the Common Equivalent Rate which would then be in effect if such dividend or distribution had not occurred. Each such adjustment shall be made successively. (D) Any shares of SunAmerica Common Stock issuable in payment of a dividend or distribution shall be deemed to have been issued immediately prior to the close of business on the record date for such dividend or distribution for purposes of calculating the number of outstanding shares of SunAmerica Common Stock under subparagraphs (B) and (C) above. (E) All adjustments to the Common Equivalent Rate shall be calculated to the nearest 1/100th of a share of SunAmerica Common Stock (or if there is not a nearest 1/100th of a share to the next lower 1/100th of a share). No adjustment in the Common Equivalent Rate shall be required unless such adjustment would require an increase or decrease of at least one percent therein; provided, however, that any adjustments which by reason of this 6 subparagraph are not required to be made shall be carried forward and taken into account in any subsequent adjustment. (2) Adjustment for Consolidation, Merger or Other --------------------------------------------- Restructuring Event. In the event of (A) any consolidation or merger of - ------------------- SunAmerica, or any surviving entity or subsequent surviving entity of SunAmerica (a "SunAmerica Successor"), with or into another entity (other than a merger or consolidation in which SunAmerica is the continuing corporation and in which the SunAmerica Common Stock outstanding immediately prior to the merger or consolidation is not exchanged for cash, securities or other property of SunAmerica or another corporation), (B) any sale, transfer, lease or conveyance to another corporation of the property of SunAmerica or any SunAmerica Successor as an entirety or substantially as an entirety, (C) any statutory exchange of securities of SunAmerica or any SunAmerica Successor with another corporation (other than in connection with a merger or acquisition) or (D) any liquidation, dissolution, winding up or bankruptcy of SunAmerica or any SunAmerica Successor (any such event described in clause (A), (B), (C) or (D), a "Restructuring Event"), the Common Equivalent Rate will be adjusted to provide that Purchaser will receive for each share of Nontransferable Class B Stock deliverable by Seller hereunder on the Termination Date or any Early Settlement Date cash in an amount equal to the Transaction Value. "Transaction Value" means (x) for any cash received in any such Restructuring Event, the amount of cash received per share of SunAmerica Common Stock, (y) for any property other than cash or securities received in any such Restructuring Event, an amount equal to the market value on the Termination Date or any Early Settlement Date of such property received per share of SunAmerica Common Stock as determined by a nationally recognized independent investment banking firm retained for this purpose by ML & Co. and (z) for any securities received in any such Restructuring Event, an amount equal to the average Closing Price per unit of such securities on the five Trading Days immediately prior to the second Trading Day preceding the Termination Date or any Early Settlement Date, multiplied by the number of such securities received for each share of SunAmerica Common Stock. Notwithstanding the foregoing, in the event that property or securities, or a combination of cash, on the one hand, and property or securities, on the other, are received in such Restructuring Event, the Seller may, at his option, in lieu of delivering cash as described above, deliver the amount of cash, securities and other property received per share of SunAmerica Common Stock in such Restructuring Event determined in accordance with clause (x), (y) or (z) above, as applicable. The kind and amount of securities with which the Seller's obligations hereunder shall be paid and discharged after consummation of such transaction shall be subject to adjustment as described in paragraph (1) above following the date of consummation of such transaction. (i) "Contract Date" means __________, 1996. (j) "Contract Shares" means, with respect to any Closing (as such term is defined in Section 3.1 hereof), the Termination Contract Shares or the Applicable Early Settlement Contract Shares, as the case may be. 7 (k) "Current Market Price" means the Current Market Price per share of SunAmerica Common Stock on any date of determination which shall be the average of the daily Closing Prices for the five consecutive Trading Days ending on and including the date of determination of the Current Market Price (appropriately adjusted to take into account the occurrence during such five-day period of any event that results in an adjustment of the Common Equivalent Rate); provided, however, that if the Closing Price for the Trading Day next following such five-day period (the "Next-Day Closing Price") is less than 95% of such five-day average, then the Current Market Price per share of SunAmerica Common Stock on such date of determination shall be the Next-Day Closing Price; and provided, further, that, for the purposes of calculating the Current Market Price in connection with the Termination Date Closing or any Early Settlement Date Closing or any determination of an amount in cash payable in lieu of a fraction of a share of SunAmerica Common Stock, if any adjustment of the Common Equivalent Rate becomes effective as of any date during the period beginning on the first day of such five-day period and ending on the Termination Date, then the Current Market Price as determined pursuant to the foregoing will be appropriately adjusted to reflect such adjustment. (l) "Early Settlement Notice Date" has the meaning specified in Section 3.1 hereof. (m) "Notice Date" means any Termination Notice Date or Early Settlement Notice Date. (n) "NYSE" means the New York Stock Exchange. (o) "Previous Applicable Early Settlement Percentage" means, with respect to any Applicable Early Settlement Date or the Termination Date Closing, a percentage equal to the sum of the Applicable Early Settlement Percentages designated and fixed by Seller in any Early Settlement Notices relating to any Early Settlement Dates occurring prior to such Applicable Early Settlement Date or Termination Date Closing. (p) "Restructuring Event" has the meaning specified in Section 1.2(h)(2) hereof. (q) "SunAmerica Successor" has the meaning specified in Section 1.2(h)(2) hereof. (r) "Termination Contract Share Amount" means a number of shares of Nontransferable Class B Stock equal to the product of (i) the Common Equivalent Rate in effect on the Termination Date Closing (as defined in Section 2.3 hereof), (ii) 3,000,000 and (iii) a percentage equal to 100% less the Previous Applicable Early Settlement Percentage. The Termination Contract Share Amount shall be adjusted in any amendment made to this Agreement pursuant to Section 9.4(b) hereof by increasing the 8 amount specified in (ii) above, as such amount specified in (ii) above is stated as of the date immediately prior to the date on which any such amendment is made, by the Option Share Amount specified in the related Option Notice. (s) "Termination Contract Shares" mean a number of shares of Nontransferable Class B Stock (or, in the event there shall occur a Restructuring Event, cash, securities and/or other property in lieu thereof) equal to the Termination Contract Share Amount. (t) "Termination Date" means _________, 1999. (u) "Termination Date Closing" has the meaning specified in Section 2.3 hereof. (v) "Termination Notice Date" has the meaning specified in Section 2.5 hereof. (w) "Termination Price" has the meaning specified in Section 2.4 hereof. (x) "Trading Day" means a day on which the security, the Closing Price of which is being determined, (A) is not suspended from trading on any national or regional securities exchange or association or over-the- counter market at the close of business and (B) has traded at least once on the national or regional securities exchange or association or over-the- counter market that is the primary market for the trading of such security; provided that, if the Closing Price of such security is to be determined by a NYSE member firm, then the term Trading Day shall mean, for purposes of determining such Closing Price, a day on which the NYSE is open for trading. (y) "Transaction Value" has the meaning specified in Section 1.2(h)(2) hereof. 2. Future Sale of Contract Shares or Cash Settlement ------------------------------------------------- 2.1. Sale and Purchase. On the basis of the representations and ----------------- warranties herein set forth and subject to the terms and conditions herein set forth, (i) Purchaser agrees to pay the consideration to Seller required by Section 2.2 hereof, and (ii) on the Termination Date Closing (as defined in Section 2.3 hereof) or on any Early Settlement Date Closing (as defined in Section 3.1 hereof), Seller agrees to sell, assign, transfer, convey and deliver to Purchaser, and Purchaser agrees to purchase and acquire from Seller, the Contract Shares, subject to Seller's right, pursuant to Section 2.5 hereof and Section 3.4 hereof, to deliver cash in lieu of the Contract Shares. 9 2.2. Consideration. ------------- (a) The aggregate consideration to be paid by Purchaser in exchange for Seller's obligations hereunder to deliver the Contract Shares (the "Firm Consideration Amount") shall be $_______ in cash. Upon the terms and subject to the conditions of this Agreement, Purchaser shall deliver to Seller the Firm Consideration Amount on _____, 1996 (the "Firm Payment Date") at the offices of Brown & Wood, One World Trade Center, New York, New York 10048, or at such other place as shall be agreed upon by Purchaser and Seller. (b) The consideration (the "Option Consideration Amount") to be paid by Purchaser in exchange for Seller's obligations hereunder to deliver the Contract Shares arising from any amendment made to this Agreement pursuant to Section 9.4(b) hereof shall be set forth in such amendment and shall be in an amount equal to ____% of an amount equal to the product of (i) the Option Share Amount specified in the related Option Notice and (ii) $_________. Upon the terms and subject to the conditions of this Agreement, Purchaser shall deliver to Seller the Option Consideration Amount on the related Date of Delivery (as such term is defined in Section 9.4(b) hereof) at the offices of Brown & Wood, One World Trade Center, New York, New York 10048, or at such other place as shall be agreed upon by Purchaser and Seller. (c) Payment of the Firm Consideration Amount and the Option Consideration Amount shall be made by Fedwire transfer of immediately available funds to an account designated by Seller, or such other form of payment specified by Seller, against delivery by Seller to the Collateral Agent of the number of shares of SunAmerica Stock (or, in the event there shall occur a Restructuring Event, cash, securities and/or other property in lieu thereof) necessary to comply with Seller's obligations under Section 6.1 hereof. 2.3. Delivery upon Termination. Consummation of the purchase, sale and ------------------------- delivery of the Termination Contract Shares shall take place on a date mutually agreeable to Purchaser and Seller, not later than one (1) Trading Day prior to the Termination Date (the "Termination Date Closing"). Delivery of the certificates representing the Termination Contract Shares (unless the Termination Contract Shares are represented by one or more global certificates registered in the name of a depositary or a nominee of a depositary, in which event Purchaser's interest in such Termination Contract Shares shall be noted in a manner reasonably satisfactory to Purchaser and its counsel) shall be made at the offices of Purchaser, or at such other place as shall be agreed upon by Purchaser and Seller. Any certificates for the Termination Contract Shares delivered shall be registered in Purchaser's name (or endorsed in blank or otherwise registered as requested by Purchaser). 2.4. No Fractional Shares. No fractional shares or script representing -------------------- fractional shares of Nontransferable Class B Stock shall be delivered at the Termination Date Closing. Instead of any fractional share of Nontransferable Class B Stock which would otherwise be deliverable by Seller at the Termination Date Closing, Seller shall make a cash payment in respect of such fractional interest in an amount equal to the value of such fractional share at the Current Market Price of the SunAmerica Common Stock (the "Termination Price") determined as of the second 10 Trading Day preceding the Termination Notice Date (as such term is defined in Section 2.5 hereof). 2.5. Cash Settlement. Notwithstanding the provisions of Sections 2.1, 2.3 --------------- and 2.4 hereof, except as provided in Section 8.1 hereof, Seller shall have the option, exercisable in his sole discretion, to require that his obligation contained therein be settled, in whole, through a cash payment at the Termination Date Closing in lieu of delivery of the Termination Contract Shares. The amount of such cash settlement payment shall be equal to the value of the Termination Contract Shares at the Termination Price. On or prior to a date that is at least 32 but not more than 62 calendar days before the Termination Date, Seller shall notify Purchaser whether he will exercise his option to require cash settlement pursuant to this Section 2.5. The date on which Seller provides such notice to Purchaser shall be referred to herein as the "Termination Notice Date". In the event of a failure by Seller to provide such notice to Purchaser, Seller shall be deemed to have elected not to exercise his option to require cash settlement pursuant to this Section 2.5 and the Termination Notice Date shall be deemed to be the date that is 32 days before the Termination Date. 2.6. Termination Date Closing Condition. If a Restructuring Event shall ---------------------------------- have occurred, Seller's right to deliver to Purchaser hereunder securities and/or other property received pursuant to such Restructuring Event shall be conditioned upon such securities and/or other property so delivered being (a) transferable after such delivery without contemporaneous registration under the Securities Act of 1933, as amended (the "1933 Act"), and (b) free of any transfer restrictions. If the condition set forth in the preceding sentence shall not be satisfied, then, notwithstanding the provisions hereof, the parties respective obligations contained in clause (ii) of Section 2.1 shall be settled, in whole, through a cash payment at the Termination Date Closing in lieu of delivery of the Termination Contract Shares as provided in Section 2.5 hereof. 3. Early Satisfaction and Discharge -------------------------------- 3.1. Early Satisfaction and Discharge. Except as provided in Section 8.1 -------------------------------- hereof, Seller shall have the option, exercisable at any time, to require that the parties satisfy and discharge their respective obligations hereunder, in whole or in part, on any date or dates fixed by Seller for early settlement (each an "Early Settlement Date Closing" and, together with the Termination Date Closing, a "Closing"), in the following manner: (i) Seller shall sell, assign, transfer, convey and deliver to Purchaser, and Purchaser shall purchase and acquire from Seller, the Applicable Early Settlement Contract Shares; and (ii) Seller shall deliver to Purchaser cash in an amount equal to the Applicable Early Settlement Required Cash Component. 11 Seller shall provide notice ("Early Settlement Notice") of his intention to require early satisfaction and discharge, in whole or in part, of this Agreement to Purchaser and ML & Co. on or prior to a date that is not less than 32 but not more than 62 calendar days prior to any Early Settlement Date Closing. Seller shall designate and fix the date (the "Early Settlement Date") of Early Settlement Date Closing in any Early Settlement Notice. Seller shall also designate and fix in any Early Settlement Notice the percentage (the "Applicable Early Settlement Percentage") of his then outstanding obligations under this Agreement that he will satisfy and discharge on any Early Settlement Date. Notwithstanding the foregoing, Seller shall have the option set forth in this Section 3.1 only if, as of the date (the "Early Settlement Notice Date") on which Seller provides Early Settlement Notice to Purchaser and ML & Co., Seller has fully complied with the provisions contained in Sections 6.1(b), 6.1(c) and 6.2 hereof. 3.2. Payment and Delivery. Consummation of the purchase, sale and -------------------- delivery of the Early Settlement Contract Shares and delivery of the Early Settlement Required Cash Component shall take place at the Early Settlement Date Closing. Payment of the Early Settlement Required Cash Component shall be made by Fedwire transfer of immediately available funds to an account designated by Purchaser, or such other form of payment specified by Purchaser. Delivery of the certificates representing the Early Settlement Contract Shares (unless the Early Settlement Contract Shares are represented by one or more global certificates registered in the name of a depositary or a nominee of a depositary, in which event Purchaser's interest in such Early Settlement Contract Shares shall be noted in a manner reasonably satisfactory to Purchaser and its counsel) shall be made at the offices of Purchaser, or at such other place as shall be agreed upon by Purchaser and Seller. Any certificates for the Early Settlement Contract Shares delivered shall be registered in Purchaser's name (or endorsed in blank or otherwise registered as requested by Purchaser). 3.3. No Fractional Shares. No fractional shares or script representing -------------------- fractional shares of Nontransferable Class B Stock shall be delivered at any Early Settlement Date Closing. Instead of any fractional share of Nontransferable Class B Stock which would otherwise be deliverable by Seller at any Early Settlement Date Closing, Seller shall make a cash payment in respect of such fractional interest in an amount equal to such fractional share at the Current Market Price of the SunAmerica Common Stock determined as of the second Trading Day preceding the applicable Early Settlement Notice Date. 3.4. Cash Settlement. Notwithstanding the provisions of Sections 3.1, 3.2 --------------- and 3.3 hereof, Seller shall have the option, exercisable in his sole discretion, to require that his obligation contained therein be settled, in whole, through a cash payment at any Early Settlement Date Closing in lieu of delivery of the Early Settlement Contract Shares. The amount of any such cash settlement payment shall be equal to the Applicable Early Settlement Price. In the Early Settlement Notice given to Purchaser pursuant to Section 3.1 hereof, Seller shall notify Purchaser whether he will exercise his option to require cash settlement pursuant to this Section 3.4. 12 4. Representations and Warranties of Seller ---------------------------------------- Seller represents and warrants to Purchaser as of the date hereof and as of the date of each Closing as follows: (a) This Agreement has been duly executed and delivered by Seller and (assuming the due authorization, execution and delivery by Purchaser and ML & Co.) constitutes a valid and binding agreement of Seller, enforceable against Seller in accordance with its terms, except as the enforcement hereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), or similar laws affecting enforcement of creditors' rights generally, except as enforcement hereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law), and except that Seller makes no representation or warranty as to the application of the Commodities Exchange Act or the rules and regulations of the Commodities Futures Trading Commission promulgated thereunder (collectively, the "CEA"), to the matters set forth in this Section 4(a). (b) (i) At the date hereof, Seller is the sole registered owner of and has all rights in and to at least ____________ shares of SunAmerica Stock, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity; and (ii) to the extent Seller elects to deliver the Contract Shares at Closing, upon delivery of such Contract Shares pursuant to this Agreement, Purchaser will be the sole registered owner of an equivalent number of shares of SunAmerica Common Stock and, assuming Purchaser purchased for value in good faith and without notice of any adverse claim, Purchaser will have acquired all rights in and to such shares of SunAmerica Common Stock, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. (c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the execution, delivery or performance by Seller of this Agreement or the consummation by Seller or SunAmerica of the transactions contemplated herein, except such as have been already obtained or as may be required under the 1933 Act or the rules and regulations promulgated thereunder or state securities laws and except that Seller makes no representation or warranty as to the application of the CEA to the matters set forth in this Section 4(c); and Seller has full right and power to enter into this Agreement and to sell, assign, transfer and deliver the Contract Shares pursuant to this Agreement. (d) The execution, delivery and performance by Seller of this Agreement and the consummation by Seller of the transactions contemplated herein and compliance by Seller with his obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any shares of SunAmerica Stock owned by Seller pursuant to any contract, mortgage, deed of trust, loan or credit 13 agreement, note, lease or any other agreement or instrument to which Seller is a party or by which Seller is bound, or to which any shares of SunAmerica Stock owned by Seller is subject (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not, singly or in the aggregate, materially and adversely affect the ability of Seller to perform his obligations under this Agreement), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over Seller or any of Seller's assets or properties (except for violations that would not, singly or in the aggregate, materially and adversely affect the ability of Seller to perform his obligations under this Agreement) and except that Seller makes no representation and warranty as to the application of the CEA to the matters set forth in this Section 4(d). 5. Representations and Warranties of Purchaser ------------------------------------------- Purchaser represents and warrants to Seller as of the date hereof and as of the date of each Closing as follows: (a) Purchaser has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware. (b) This Agreement has been duly authorized, executed and delivered by Purchaser and (assuming the due execution and delivery by Seller) constitutes a valid and binding agreement of Purchaser, enforceable against Purchaser in accordance with its terms, except as the enforcement hereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement hereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law). (c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the execution, delivery or performance by Purchaser of this Agreement or the consummation by Purchaser of the transactions contemplated herein, except such as have been already obtained or as may be required under the 1933 Act or the rules and regulations promulgated thereunder or state securities laws; and Purchaser has full right, power and authority to enter into this Agreement and to purchase the Contract Shares pursuant to this Agreement. (d) The execution, delivery and performance by Purchaser of this Agreement and the consummation by Purchaser of the transactions contemplated herein and compliance by Purchaser with its obligations hereunder do not and will not, whether with or without the giving 14 of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of Purchaser pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreement or instrument to which Purchaser is a party or by which Purchaser is bound, or to which any of the property or assets of Purchaser is subject (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not, singly or in the aggregate, materially and adversely affect the ability of Purchaser to perform its obligations under this Agreement), nor will such action result in any violation of the provisions of the charter or by-laws of Purchaser, or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over Purchaser or any of its assets, properties or operations (except for violations that would not, singly or in the aggregate, materially and adversely affect the ability of Purchaser to perform its obligations under this Agreement). 6. Covenants --------- 6.1. Collateral. ---------- (a) Seller shall, on the date hereof and at all times from the date hereof through the later of the last Early Settlement Date or the date of the Termination Date Closing hereunder (the "Final Closing Date"), cause to be held by the Collateral Agent under the Collateral Agreement an aggregate number of shares of any combination of SunAmerica Stock (or, in the event there shall occur a Restructuring Event, cash, securities and/or other property in lieu thereof) at least equal to the maximum number of shares of Nontransferable Class B Stock (or, in the event there shall occur a Restructuring Event, cash, securities and/or other property in lieu thereof) that would be required by Seller to pay and discharge all of Seller's outstanding obligations to deliver Contract Shares hereunder on the Termination Date Closing (the "Applicable Maximum Contract Shares"), subject to Seller's right under the Collateral Agreement, as set forth therein, to cause to be held by the Collateral Agent under the Collateral Agreement any Substitute Collateral in the manner and amount required under the Collateral Agreement. (b) In the event that Seller exercises his option set forth in Section 3.1 hereof, on or before any Early Settlement Notice Date, Seller shall cause to be held by the Collateral Agent under the Collateral Agreement an amount of cash equal to the Applicable Early Settlement Required Cash Component that would be deliverable by Seller to Purchaser hereunder on the Applicable Early Settlement Date to which such Early Settlement Notice Date relates. (c) Seller shall cause the required orders to be given to the Transfer Agent for the SunAmerica Stock in order to restrict the transfer thereof. 15 6.2. No Default. Seller agrees that at all times from the date hereof ---------- through the Final Closing Date, Seller will conduct Seller's affairs so that compliance with his obligations hereunder and under the Collateral Agreement do not and will not result in any conflict with or constitute a breach or default (or in any situation that, with the giving of notice or the passage of time, or both, would result in default) in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which Seller is a party or by which he may be bound or to which any of the property or assets of Seller is subject (except for such conflicts, breaches or defaults that would not, singly or in the aggregate, materially and adversely affect the ability of Seller to perform his obligations under this Agreement and under the Collateral Agreement). 6.3. Taxes. ----- (a) Seller shall pay any and all documentary, stamp, transfer or similar taxes and charges that may be payable in respect of the entry into this Agreement and the transfer and delivery of the Contract Shares pursuant hereto. (b) Purchaser and Seller hereby agree to treat, for all United States Federal, state and local tax purposes, this Agreement as a pre-paid forward contract, which does not constitute, in whole or in part, indebtedness, pursuant to which Purchaser is obligated to purchase at the Termination Date Closing or any Early Settlement Date Closing the Contract Shares which Seller is obligated to deliver at that time (subject to Seller's right to deliver cash in lieu of the Contract Shares). 6.4. Certain Notices. --------------- (a) In case at any time from the date hereof through the Final Closing Date Seller receives notice that: (i) SunAmerica shall declare a dividend (or any other distribution) on or in respect of the SunAmerica Common Stock to which Section 1.2(h)(1)(A) or 1.2(h)(1)(C) of this Agreement shall apply; (ii) SunAmerica shall authorize the issuance to all holders of SunAmerica Common Stock of rights or warrants to subscribe for or purchase shares of SunAmerica Common Stock or of any other subscription rights or warrants; (iii) there shall occur any conversion or reclassification of SunAmerica Common Stock (other than a subdivision or combination of outstanding shares of such SunAmerica Common Stock) or any consolidation, merger or reorganization to which SunAmerica is a party and for which approval of any stockholders of 16 SunAmerica is required, or the sale or transfer of all or substantially all of the assets of SunAmerica; or (iv) there shall occur the voluntary or involuntary dissolution, liquidation, winding up or bankruptcy of SunAmerica; then Seller shall promptly notify Purchaser and ML & Co. of such fact and of (x) the date on which a record is to be taken for the purpose of such dividend, distribution or grant of rights or warrants, or, if a record is not to be taken, the date as of which the holders of SunAmerica Common Stock of record to be entitled to such dividend, distribution or grant of rights or warrants are to be determined, or (y) the date, if known by Seller, on which such reclassification, consolidation, merger, sale, transfer, dissolution, liquidation, winding up or bankruptcy is expected to become effective. (b) Whenever the Common Equivalent Rate requires adjustment as herein provided, the Purchaser shall forthwith compute the adjusted Common Equivalent Rate in accordance with Section 1.2(h) hereof and prepare a certificate signed by an officer of Purchaser setting forth the adjusted Common Equivalent Rate, the method of calculation thereof in reasonable detail, and the facts requiring such adjustment and upon which such adjustment is based, which certificate shall be conclusive, final and binding evidence of the correctness of the adjustment, and deliver such certificate to Seller within 15 Business Days following the occurrence of an event that requires an adjustment to the Common Equivalent Rate pursuant to Section 1.2(h) (or if Purchaser is not aware of such occurrence, as soon as practicable after becoming so aware). 6.5. Limitations on Trading During Certain Days. Each of Seller and ML & ------------------------------------------ Co. hereby agrees that it will not, and ML & Co. will cause each of its Majority-Owned Subsidiaries not to, buy or sell shares of SunAmerica Common Stock for their own account during the five consecutive Trading Days immediately prior to the second Trading Day preceding any Notice Date hereunder relating to an Early Settlement pursuant to Section 3.1 hereof or any cash settlement pursuant to Section 2.5 or 3.4 hereof. For purposes hereof, "Majority-Owned Subsidiaries" with respect to ML & Co. means a subsidiary more than 50% of whose outstanding securities representing the right to vote for the election of directors is owned by ML & Co. and/or one or more of ML & Co.'s other Majority- Owned Subsidiaries. 6.6. Further Assurances. From time to time on and after the date hereof ------------------ through the Final Closing Date, each of the parties hereto shall use its best efforts to take, or cause to be taken, all action and to do, or cause to be done, all things necessary, proper and advisable to consummate and make effective as promptly as practicable the transactions contemplated by this Agreement in accordance with the terms and conditions hereof, including (i) using best efforts to remove any legal impediment to the consummation of such transactions and (ii) the execution and delivery of all such deeds, agreements, assignments and further instruments of transfer and conveyance necessary, proper or advisable to consummate and make effective the transactions contemplated by this Agreement in accordance with the terms and conditions hereof. 17 7. Conditions to Closing --------------------- 7.1. Seller's Conditions to Each Closing. Seller's obligation to ----------------------------------- consummate the transactions contemplated hereunder is conditioned upon (i) the representations and warranties of Purchaser contained in Article 5 hereof being true and correct as of the date of each such Closing, and (ii) the performance by Purchaser and ML & Co. of their respective covenants and other obligations hereunder as of the date of each such Closing. 7.2. Purchaser's Conditions to each Closing. Purchaser's obligation to -------------------------------------- consummate the transactions contemplated hereunder is conditioned upon (i) the representations and warranties of Seller contained in Section 4 hereof being true and correct as of the date of each such Closing, and (ii) the performance by Seller of his covenants and other obligations hereunder as of the date of each such Closing. 8. Acceleration of Delivery ------------------------ 8.1. Events of Default; Acceleration of Delivery. If one or more of the ------------------------------------------- following events (each an "Event of Default") shall occur: (a) Seller shall commence a voluntary case or other proceeding seeking relief with respect to himself or his debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, custodian or other similar person of his or any substantial part of his property, or shall consent to any such relief or to the appointment of or taking possession by any such person in an involuntary case or other proceeding commenced against him; (b) an involuntary case or other proceeding shall be commenced against Seller seeking relief with respect to himself or his debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, custodian or other similar person of his or any substantial part of his property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days; or an order for relief shall be entered against Seller, under any applicable bankruptcy laws as now or hereafter in effect; (c) a Collateral Event of Default within the meaning of the Collateral Agreement; and (d) the inaccuracy of the representation and warranty contained in Section 4 hereof; 18 then, (A) the Applicable Maximum Contract Shares as of the date on which an Event of Default occurs (the "Acceleration Value") shall become immediately deliverable and payable by Seller to Purchaser in accordance with the Collateral Agreement without any declaration or other action on the part of Purchaser hereunder, and (B) Seller's rights under Sections 2.5 and 3.1 hereof shall terminate immediately. [Purchaser, Seller and ML & Co. agree that the Acceleration Value is a reasonable pre-estimate of loss and not a penalty. Such amount is payable for the loss of bargain and Purchaser will not be entitled to recover additional damage as a consequence of loss resulting from an Event of Default.] 9. Miscellaneous ------------- 9.1. Notices. All notices and other communications hereunder shall be in ------- writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to Purchaser shall be directed to him at North Tower, World Financial Center, New York, New York 10281-1322, attention of _______________, with a copy to the Treasurer of ML & Co. at World Financial Center, South Tower, New York, New York, 10080-6105; notices to Seller shall be directed to Seller at _____________________. 9.2. Governing Law; Consent to Jurisdiction. This Agreement shall be -------------------------------------- governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed wholly within such State. For the purpose of any suit, action or proceeding arising out of or relating to this Agreement, the parties hereto hereby expressly and irrevocably consent and submit to the non-exclusive jurisdiction of any competent court in the place of its domicile and any United States Federal court sitting in the Borough of Manhattan, City and State of New York, and expressly and irrevocably waive, to the extent permitted under applicable law, any immunity from the jurisdiction thereof and any claim or defense in such suit, action or proceeding based on a claim of improper venue, forum non conveniens or any similar basis to which it might otherwise be entitled. 9.3. Entire Agreement. Except as expressly set forth herein, this ---------------- Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all prior agreements, understandings and negotiations, both written and oral, among the parties with respect to the subject matter of this Agreement. 9.4. Amendments; Waivers. ------------------- (a) Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by Purchaser, ML & Co. and Seller or, in the case of a waiver, by the party against whom the waiver is to be effective. No failure or delay by any party in exercising any right, 19 power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law. (b) Purchaser shall have the right, exercisable in Purchaser's sole discretion, at any time until ____, 1996, to cause an amendment to this Agreement providing for the future purchase, sale and delivery of an additional number of shares of Nontransferable Class B Stock (or, in the event there shall occur a Restructuring Event, cash, securities and/or other property in lieu thereof) on any Closing Date pursuant to the provisions of this Agreement, subject to Seller's right to deliver cash in lieu thereof pursuant to Section 2.5 and Section 3.4 hereof, by delivering notice (an "Option Notice") to ML & Co. and Seller. Any such Option Notice shall specify the total number (the "Option Share Amount") of additional shares of Nontransferable Class B Stock to be purchased, sold and delivered pursuant to the provisions of this Agreement; provided, however, that the aggregate Option Share Amounts specified in all Option Notices shall not exceed 450,000. Any such Option Notice shall also specify a date (the "Date of Delivery") on which the Option Consideration Amount to be paid by Purchaser in exchange for Seller's obligations hereunder to deliver the Contract Shares at any Closing arising from any amendment made to this Agreement pursuant to this Section 9.4(b) shall be delivered by Purchaser to Seller pursuant to Section 2.2(b) hereof. Any such Date of Delivery shall be no later than 8 Business Days after the date on which such Option Notice is delivered by Purchaser to ML & Co. and Seller. On the date on which any Option Notice is delivered by Purchaser to ML & Co. and Seller pursuant to this Section 9.4(b), ML & Co., Purchaser and Seller shall amend this Agreement. Any such amendment will include appropriate amendments to Sections 1.2(d), 1.2(e), 1.2(r), and 2.2(b) hereof as more fully described herein. 9.5. Unilateral Modification by Seller. Notwithstanding any other --------------------------------- provision contained herein, Seller shall have the right, exercisable in Seller's sole discretion, at any time and from time to time, to modify this Agreement so that he may satisfy his obligations under Sections 2.1, 2.3, 2.4, 3.1, 3.2, and 3.3 hereof (including related definitions), in whole or in part, by delivering shares of SunAmerica Common Stock instead of Nontransferable Class B Stock. 9.6. Conversion of Nontransferable Class B Stock. Notwithstanding any ------------------------------------------- other provision of this Agreement or the Collateral Agreement, Seller shall, to the extent necessary to comply with the Articles of Incorporation of SunAmerica, as amended and restated and including any Articles Supplementary, immediately prior to any sale, assignment, transfer, conveyance or delivery of any shares of Nontransferable Class B Stock to Purchaser required by this Agreement or the Collateral Agreement, convert such shares to shares of SunAmerica Common Stock. 9.7. Successors; Assigns. The provisions of this Agreement shall be ------------------- binding upon and accrue to the benefit of the parties hereto and their respective heirs, distributees, next of kin, 20 executors, administrators, legal and personal representatives, successors and assigns. Notwithstanding the foregoing, neither this Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof shall be assignable by any party hereto without the prior written consent of the other parties hereto. 9.8. No Third Party Rights. This Agreement is not intended and shall not --------------------- be construed to create any rights in any person other than Seller, Purchaser and ML & Co. and no person shall assert any rights as third party beneficiary hereunder. 9.9. Counterparts. This Agreement may be signed in any number of ------------ counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. 21 IN WITNESS WHEREOF, the parties have signed this Agreement as of the date and year first above written. MERRILL LYNCH CAPITAL SERVICES, INC. ELI BROAD By_________________________ By____________________________________ Name: Title: MERRILL LYNCH & CO., INC. By_________________________ Name: Title: 22