Exhibit 10.3


 





 


	
  EXECUTION COPY

  
	
   

  
	
  Date:

  	
  May 1,
  2009

  
	
   

  	
   

  
	
  To:

  	
  Affiliated
  Managers Group, Inc.

  
	
   

  	
  600 Hale
  Street

  
	
   

  	
  Prides
  Crossing, MA 01965

  
	
   

  	
   

  
	
  From:

  	
  Bank of
  America, N.A.

  
	
   

  	
  One Bryant
  Park

  
	
   

  	
  New York, NY
  10036

  
	
   

  	
   

  
	
  Re:

  	
  Registered
  Forward Transaction

  



 


Reference:             NY-38516


 


Ladies and
Gentlemen:


 


The purpose of
this letter agreement is to confirm the terms and conditions of the Transaction
entered into between Bank of America, N.A. (“BofA”)
and Affiliated Managers Group, Inc. (“Counterparty”)
on the Trade Date specified below (the “Transaction”).  This letter agreement constitutes a
“Confirmation” as referred to in the ISDA Master Agreement specified below.


 


The
definitions and provisions contained in the 2002 ISDA Equity Derivatives
Definitions (the “Equity Definitions”),
as published by the International Swaps and Derivatives Association, Inc.,
are incorporated into this Confirmation. 
In the event of any inconsistency between the Equity Definitions and
this Confirmation, this Confirmation shall govern.


 


Each party is
hereby advised, and each such party acknowledges, that the other party has
engaged in, or refrained from engaging in, substantial financial transactions
and has taken other material actions in reliance upon the parties’ entry into
the Transaction to which this Confirmation relates on the terms and conditions
set forth below.


 


1.             This Confirmation and the pricing
supplement delivered hereunder evidence a complete and binding agreement
between BofA and Counterparty as to the terms of the Transaction to which this
Confirmation relates.  This Confirmation,
together with all other Confirmations of Equity Contracts (as defined in
Paragraph 7(t) below), shall supplement, form a part of, and be subject to
an agreement in the form of the ISDA 2002 Master Agreement (the “Agreement”) as if BofA and Counterparty had
executed an agreement in such form (but without any Schedule except for the
election of United States dollars (“USD”)
as the Termination Currency).  In the
event of any inconsistency between provisions of that Agreement and this
Confirmation, this Confirmation will prevail for the purpose of the Transaction
to which this Confirmation relates.  The
parties hereby agree that, other than the Transaction to which this
Confirmation relates and any other Equity Contract, no Transaction shall be
governed by the Agreement.


 


2.             The terms of the particular
Transaction to which this Confirmation relates are as follows:


 


General Terms:


 


	
  Trade Date:

  	
   

  	
  May 1,
  2009

  
	
   

  	
   

  	
   

  
	
  Effective
  Date:

  	
   

  	
  The first
  day occurring on or after the Trade Date on which Shares are sold pursuant to
  the Distribution Agency Agreement dated as of May 1, 2009 between
  Counterparty and Merrill Lynch, Pierce, Fenner & Smith Incorporated
  (the “Distribution Agreement”)

  



 


1

















 


	
  Seller:

  	
   

  	
  Counterparty

  
	
   

  	
   

  	
   

  
	
  Buyer:

  	
   

  	
  BofA

  
	
   

  	
   

  	
   

  
	
  Shares:

  	
   

  	
  The common
  stock of Counterparty, par value USD 0.01 per share (Ticker Symbol: “AMG”)

  
	
   

  	
   

  	
   

  
	
  Number of
  Shares:

  	
   

  	
  The
  aggregate number of Shares sold pursuant to the Distribution Agreement during
  the period from and including the Trade Date through and including the Hedge
  Completion Date; provided, however, that on each Settlement Date,
  the Number of Shares shall be reduced by the number of Settlement Shares to
  be settled on such date.

  
	
   

  	
   

  	
   

  
	
  Hedge
  Completion Date:

  	
   

  	
  The earliest
  of (i) the date specified in writing as the Hedge Completion Date by the
  Counterparty, (ii) any Settlement Date and (iii) August 1,
  2009. Promptly after the Hedge Completion Date, BofA will furnish
  Counterparty with a pricing supplement (the “Pricing Supplement”) substantially in the form of Annex A
  hereto specifying the Number of Shares as of the Hedge Completion Date (the “Initial Number of Shares”), the Initial
  Forward Price and the Final Date, all determined in accordance with the terms
  hereof.

  
	
   

  	
   

  	
   

  
	
  Initial
  Forward Price:

  	
   

  	
  98.05% of
  the volume weighted average price at which the Shares are sold pursuant to
  the Distribution Agreement during the period from and including the Trade
  Date through and including the Hedge Completion Date.

  
	
   

  	
   

  	
   

  
	
  Forward
  Price:

  	
   

  	
  (a)

  	
  On the Hedge
  Completion Date, the Initial Forward Price; and

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (b)

  	
  on each
  calendar day thereafter, (i) the Forward Price as of the immediately
  preceding calendar day multiplied by (ii) the sum of
  1 and the Daily Rate for such day.

  
	
   

  	
   

  	
   

  
	
  Daily Rate:

  	
   

  	
  For any day,
  (i) (a) USD-Federal Funds Rate for such day minus
  (b) the Spread divided by (ii) 365.

  
	
   

  	
   

  	
   

  
	
  USD-Federal
  Funds Rate:

  	
   

  	
  For any day,
  the rate set forth for such day opposite the caption “Federal funds”, as such
  rate is displayed on the page “FedsOpen <Index><GO>” on the
  BLOOMBERG Professional Service, or any successor page; provided that if no rate appears for a
  particular day on such page, the rate for the immediately preceding day for
  which a rate does so appear shall be used for such day.

  
	
   

  	
   

  	
   

  
	
  Spread:

  	
   

  	
  1.00%,
  subject to adjustment from time to time by BofA in its commercially
  reasonable discretion; provided
  that no such adjustment may reduce the Spread below 1.00% or increase the
  Spread above 1.35%.

  
	
   

  	
   

  	
   

  
	
  Prepayment:

  	
   

  	
  Not
  Applicable

  
	
   

  	
   

  	
   

  
	
  Variable
  Obligation:

  	
   

  	
  Not
  Applicable

  
	
   

  	
   

  	
   

  
	
  Exchange:

  	
   

  	
  The New York
  Stock Exchange

  
	
   

  	
   

  	
   

  
	
  Related
  Exchange(s):

  	
   

  	
  All
  Exchanges

  



 


2

















 


	
  Clearance
  System:

  	
   

  	
  The
  Depository Trust Company

  
	
   

  	
   

  	
   

  
	
  Market
  Disruption Event:

  	
   

  	
  Section 6.3(a) of
  the Equity Definitions is hereby amended by deleting the words “during the
  one hour period that ends at the relevant Valuation Time, Latest Exercise
  Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may
  be,” in clause (ii) thereof.

  
	
   

  	
   

  	
   

  
	
  Early
  Closure:

  	
   

  	
  Section 6.3(d) of
  the Equity Definitions is hereby amended by deleting the remainder of the
  provision following the term “Scheduled Closing Time” in the fourth line
  thereof.

  
	
   

  	
   

  	
   

  
	
  Settlement:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Settlement
  Currency:

  	
   

  	
  USD (all
  amounts shall be converted to the Settlement Currency in good faith and in a
  commercially reasonable manner by the Calculation Agent)

  
	
   

  	
   

  	
   

  
	
  Settlement
  Date:

  	
   

  	
  Any
  Scheduled Trading Day following the first day occurring on or after the Trade
  Date on which Shares are sold pursuant to the Distribution Agreement and up
  to and including the Final Date that is either:

   

  (a)          designated by
  Counterparty as a “Settlement Date”
  by a written notice (a “Settlement Notice”)
  delivered to BofA no less than (i) one Scheduled Trading Day prior to
  such Settlement Date and five Scheduled Trading Days prior to the Final Date,
  if Physical Settlement applies, and (ii) five Scheduled Trading Days
  prior to such Settlement Date, which may be the Final Date, if Cash
  Settlement or Net Stock Settlement applies; provided
  that if Cash Settlement or Net Stock Settlement applies, any
  Settlement Date, including a Settlement Date on the scheduled Final Date,
  shall be deferred until the date on which BofA is able to completely unwind
  its hedge with respect to the portion of the Number of Shares to be settled
  if BofA is unable to completely unwind its hedge with respect to the portion
  of the Number of Shares to be settled during the Unwind Period due to the restrictions
  of Rule 10b-18 (“Rule 10b-18”)
  under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) agreed to hereunder, the
  existence of any Suspension Day or Disrupted Day or the lack of sufficient
  liquidity in the Shares during the Unwind Period (as determined by the
  Calculation Agent); provided further
  that if BofA shall fully unwind its hedge with respect to the portion of the
  Number of Shares to be settled during an Unwind Period by a date that is more
  than three Scheduled Trading Days prior to a Settlement Date specified above,
  BofA may, by written notice to Counterparty, specify any Scheduled Trading
  Day prior to such original Settlement Date as the Settlement Date; or

   

  (b)         designated by BofA as a
  Settlement Date pursuant to the “Acceleration Events” provisions of Paragraph
  7(f) below;

   

  provided that the Final Date will be a
  Settlement Date if on such date the Number of Shares for which a Settlement
  Date has not already been designated is greater than zero, and provided further that if any Settlement
  Date specified above is not an Exchange Business Day, 

  



 


3

















 


	
   

  	
   

  	
  the
  Settlement Date shall instead be the next Exchange Business Day.

  
	
   

  	
   

  	
   

  
	
  Final Date:

  	
   

  	
  The first
  anniversary of the Hedge Completion Date (or if such day is not a Scheduled
  Trading Day, the next following Scheduled Trading Day)

  
	
   

  	
   

  	
   

  
	
  Early
  Settlement Fee:

  	
   

  	
  If a
  Settlement Date occurs on or prior to the Early Settlement Fee Date (an “Early Unwind Date”), Counterparty shall
  pay to BofA the Early Settlement Fee for such Early Unwind Date; provided that no Early Settlement Fee
  shall be payable if (i) the USD-Federal Funds Rate is less than the
  Spread on such Early Unwind Date or (ii) such Early Unwind Date occurs
  as a result of the designation by BofA of a Settlement Date resulting from an
  event or events outside Counterparty’s control. “Early Settlement Fee” means, for any Early Unwind Date, an
  amount of cash equal to (a) the number of Settlement Shares for such
  Settlement Date multiplied by (b) the Initial Forward
  Price multiplied by (c) 0.50% multiplied by
  (d) the number of calendar days in the period from but excluding such
  Early Unwind Date to and including the Early Settlement Fee Date divided by
  (e) 365; “Early Settlement Fee Date”
  means the date that is two months after the Hedge Completion Date.

  
	
   

  	
   

  	
   

  
	
  Settlement
  Shares:

  	
   

  	
  (a)

  	
  With respect
  to any Settlement Date other than the Final Date, the number of Shares
  designated as such by Counterparty in the relevant Settlement Notice or
  designated pursuant to the “Acceleration Events” provisions of Paragraph
  7(f) below, as applicable; provided
  that the Settlement Shares so designated shall (i) not exceed the Number
  of Shares at that time and (ii) be at least equal to the lesser of
  100,000 and the Number of Shares at that time; and

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (b)

  	
  with respect
  to the Settlement Date on the Final Date, a number of Shares equal to the
  Number of Shares at that time;

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  in each case
  with the Number of Shares determined taking into account pending Settlement
  Shares.

  
	
   

  	
   

  	
   

  
	
  Settlement
  Method Election:

  	
   

  	
  Physical
  Settlement, Cash Settlement, or Net Stock Settlement, at the election of
  Counterparty, in its sole discretion, as set forth in a Settlement Notice; provided that if Counterparty elects
  Cash Settlement or Net Stock Settlement, it shall be deemed to have repeated
  the representations contained in Paragraph 7(e) below; provided  further that if no election is made by Counterparty,
  Physical Settlement shall apply. The parties hereto acknowledge that Counterparty
  cannot be obligated to settle this Transaction by cash payment unless
  Counterparty elects Cash Settlement; provided,
  however, that the foregoing
  shall not apply to the payment of an Early Settlement Fee if the Early Unwind
  Date occurs as the result of the designation by Counterparty of a
  Settlement Date.

  
	
   

  	
   

  	
   

  
	
  Physical
  Settlement:

  	
   

  	
  If Physical
  Settlement is applicable, then Counterparty shall deliver to BofA through the
  Clearance System a number of Shares equal to the Settlement Shares for such
  Settlement Date, and BofA shall pay to Counterparty, by wire transfer of
  immediately available funds to an account designated by Counterparty, an
  amount equal to the Physical Settlement Amount for such Settlement Date.

  



 


4

















 


	
  Physical
  Settlement Amount:

  	
   

  	
  For any
  Settlement Date for which Physical Settlement is applicable, an amount equal
  to the product of (a) the Forward Price in effect on the relevant
  Settlement Date multiplied by (b) the Settlement
  Shares for such Settlement Date.

  
	
   

  	
   

  	
   

  
	
  Cash
  Settlement:

  	
   

  	
  On any
  Settlement Date in respect of which Cash Settlement applies, if the Cash
  Settlement Amount is a positive number, BofA will pay the Cash Settlement
  Amount to Counterparty. If the Cash Settlement Amount is a negative number,
  Counterparty will pay the absolute value of the Cash Settlement Amount to
  BofA. Such amounts shall be paid on such Settlement Date.

  
	
   

  	
   

  	
   

  
	
  Cash
  Settlement Amount:

  	
   

  	
  An amount
  determined by the Calculation Agent equal to: (i)(A) the Forward Price as
  of the first day of the applicable Unwind Period minus  (B) the weighted average price
  (the “Unwind Purchase Price”) at
  which BofA purchases Shares during the Unwind Period to unwind its hedge with
  respect to the portion of the Number of Shares to be settled during the
  Unwind Period (including, for the avoidance of doubt, purchases on any
  Suspension Day or Disrupted Day in part), taking into account Shares
  anticipated to be delivered or received if Net Stock Settlement applies, and
  the restrictions of Rule 10b-18 under the Exchange Act agreed to
  hereunder, plus USD 0.02, multiplied by
  (ii) the Settlement Shares.

  
	
   

  	
   

  	
   

  
	
  Net Stock
  Settlement:

  	
   

  	
  On any
  Settlement Date in respect of which Net Stock Settlement applies, if the Cash
  Settlement Amount is a (i) positive number, BofA shall deliver a number
  of Shares to Counterparty equal to the Net Stock Settlement Shares, or
  (ii)  negative number, Counterparty shall deliver a number of Shares to
  BofA equal to the Net Stock Settlement Shares; provided that if BofA determines in its good faith
  judgment that it would be required to deliver Net Stock Settlement Shares to
  Counterparty, BofA may elect to deliver a portion of such Net Stock
  Settlement Shares on one or more dates prior to the applicable Settlement
  Date.

  
	
   

  	
   

  	
   

  
	
  Net Stock
  Settlement Shares:

  	
   

  	
  With respect
  to a Settlement Date, the absolute value of the Cash Settlement Amount divided by
  the Unwind Purchase Price, with the number of Shares rounded up in the event
  such calculation results in a fractional number.

  
	
   

  	
   

  	
   

  
	
  Unwind
  Period:

  	
   

  	
  The period
  from and including the first Exchange Business Day following the date
  Counterparty elects Cash Settlement or Net Stock Settlement in respect of a
  Settlement Date through the third Scheduled Trading Day preceding such
  Settlement Date (as such date may be changed by BofA as described in the
  first proviso in clause (a) of the definition of Settlement Date above).

  
	
   

  	
   

  	
   

  
	
  Failure to
  Deliver:

  	
   

  	
  Applicable

  
	
   

  	
   

  	
   

  
	
  Suspension
  Day:

  	
   

  	
  Any day on
  which BofA determines based on the advice of outside counsel of national
  standing that Cash Settlement or Net Stock Settlement may violate applicable
  securities laws or cause BofA to not be in compliance with applicable legal,
  regulatory or self-regulatory requirements, or with related policies and
  procedures applicable to BofA. BofA shall promptly notify Counterparty if it
  receives such advice from its counsel.

  
	
   

  	
   

  	
   

  
	
  Share Cap:

  	
   

  	
  Notwithstanding
  any other provision of this Confirmation, in no event will Counterparty be
  required to deliver to BofA on any

  



 


5

















 


	
   

  	
   

  	
  Settlement
  Date, whether pursuant to Physical Settlement, Net Stock Settlement or any
  Private Placement Settlement, a number of Shares in excess of (i) the
  Initial Number of Shares minus (ii) the aggregate number of
  Shares delivered by Counterparty to BofA hereunder prior to such Settlement
  Date.

  
	
   

  	
   

  	
   

  
	
  Adjustments:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Method of
  Adjustment:

  	
   

  	
  Calculation
  Agent Adjustment

  
	
   

  	
   

  	
   

  
	
  Extraordinary
  Events:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  New Shares:

  	
   

  	
  In the
  definition of New Shares in Section 12.1(i) of the Equity
  Definitions, the text in (i) shall be deleted in its entirety and
  replaced with “publicly quoted, traded or listed on any of the New York Stock
  Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or
  their respective successors)”.

  
	
   

  	
   

  	
   

  
	
  Consequences
  of Merger Events:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (a) 
  Share-for-Share:

  	
   

  	
  Cancellation
  and Payment

  
	
   

  	
   

  	
   

  
	
  (b) 
  Share-for-Other:

  	
   

  	
  Cancellation
  and Payment

  
	
   

  	
   

  	
   

  
	
  (c) 
  Share-for-Combined:

  	
   

  	
  Cancellation
  and Payment

  
	
   

  	
   

  	
   

  
	
  Tender
  Offer:

  	
   

  	
  Applicable

  
	
   

  	
   

  	
   

  
	
  Consequences
  of Tender Offers:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (a) 
  Share-for-Share:

  	
   

  	
  Cancellation
  and Payment

  
	
   

  	
   

  	
   

  
	
  (b) 
  Share-for-Other:

  	
   

  	
  Cancellation
  and Payment

  
	
   

  	
   

  	
   

  
	
  (c) 
  Share-for-Combined:

  	
   

  	
  Cancellation
  and Payment

  
	
   

  	
   

  	
   

  
	
  Composition
  of Combined Consideration:

  	
   

  	
  

  Not Applicable

  
	
   

  	
   

  	
   

  
	
  Nationalization,
  Insolvency or Delisting:

  	
   

  	
  

  Cancellation and Payment

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  In addition
  to the provisions of Section 12.6(a)(iii) of the Equity
  Definitions, it will also constitute a Delisting if the Exchange is located
  in the United States and the Shares are not immediately re-listed, re-traded
  or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select
  Market or The NASDAQ Global Market (or their respective successors); if the
  Shares are immediately re-listed, re-traded or re-quoted on any such exchange
  or quotation system, such exchange or quotation system shall be deemed to be
  the Exchange.

  
	
   

  	
   

  	
   

  
	
  Determining
  Party:

  	
   

  	
  For all
  applicable Extraordinary Events, BofA; provided,
  however, that all calculations,
  adjustments, specifications, choices and determinations by the Determining
  Party shall be made in good faith and in a commercially reasonable manner.
  The parties agree that they will work reasonably to resolve any disputes.

  



 


6

















 


	
  Additional
  Disruption Events:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Change in
  Law:

  	
   

  	
  Applicable; provided that
  Section 12.9(a)(ii) of the Equity Definitions is hereby amended by
  (i) replacing the phrase “the interpretation” in the third line thereof
  with the phrase “or public announcement of the formal or informal
  interpretation” and (ii) immediately following the word “Transaction” in
  clause (X) thereof, adding the phrase “in the manner contemplated by the
  Hedging Party on the Trade Date”.

  
	
   

  	
   

  	
   

  
	
  Insolvency
  Filing:

  	
   

  	
  Notwithstanding
  anything to the contrary herein, in the Agreement or in the Equity
  Definitions, upon any Insolvency Filing or other proceeding under the U.S.
  Bankruptcy Code in respect of the Issuer, the Transaction shall automatically
  terminate on the date thereof without further liability of either party to
  this Confirmation to the other party (except for any liability in respect of
  any breach of representation or covenant by a party under this Confirmation
  prior to the date of such Insolvency Filing or other proceeding), it being
  understood that this Transaction is a contract for the issuance of Shares by
  the Issuer.

  
	
   

  	
   

  	
   

  
	
  Determining
  Party:

  	
   

  	
  For all
  applicable Additional Disruption Events, BofA; provided, however,
  that all calculations, adjustments, specifications, choices and determinations
  by the Determining Party shall be made in good faith and in a commercially
  reasonable manner. The parties agree that they will work reasonably to
  resolve any disputes.

  
	
   

  	
   

  	
   

  
	
  Non-Reliance:

  	
   

  	
  Applicable

  
	
   

  	
   

  	
   

  
	
  Agreements
  and Acknowledgments Regarding Hedging Activities:

  	
   

  	
  Applicable

  
	
   

  	
   

  	
   

  
	
  Additional
  Acknowledgments:

  	
   

  	
  Applicable

  
	
   

  	
   

  	
   

  
	
  Transfer:

  	
   

  	
  Notwithstanding
  anything to the contrary herein or in the Agreement, BofA may assign,
  transfer and set over all rights, title and interest, powers, privileges and
  remedies of BofA under this Transaction, in whole or in part, to an affiliate
  of BofA, or any entity sponsored or organized by, or on behalf of or for the
  benefit of, BofA without the consent of Counterparty. No such assignment,
  transfer or set over shall affect BofA’s obligations hereunder. In the event
  of any transfer or assignment of any rights, title and interest, powers,
  privileges and remedies of BofA under this Transaction, the transferee or
  assignee shall assume and enter into new covenants and representations under
  Sections 3(e), 3(f), 4(a)(i) and 4(a)(iii) of the Agreement or
  enter into new covenants and representations that are agreed by the other
  party under the Agreement, and the identity of the transferee or assignee
  shall be entered on the books and records maintained by each party or its
  respective agents.

  
	
   

  	
   

  	
   

  
	
  3.             Calculation Agent:

  	
   

  	
  BofA. All
  calculations and determinations by the Calculation Agent shall be made in
  good faith and in a commercially reasonable manner. The parties agree that
  they will work reasonably to resolve any disputes.

  
	
   

  	
   

  	
   

  
	
  4.             Account Details:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (a) 
  Account for delivery of Shares to BofA:

  	
   

  	
  

  To be furnished

  



 


7

















 


	
  (b) 
  Account for payments to Counterparty:

  	
   

  	
  

  To be furnished

  
	
   

  	
   

  	
   

  
	
  (c)  Account for payments to BofA:

  	
   

  	
  Bank of America, N.A. — New York, NY  
 Account #: 12333-34172  
 ABA #: 026-009-593  
 For account of Bank of America

  
	
   

  	
   

  	
   

  
	
  5.                                     Offices:

  	
   

  	
   

  



 


The Office of Counterparty for the Transaction is: Inapplicable,
Counterparty is not a Multibranch Party.


 


The Office of BofA for the Transaction is: New York


 


6.                                     Notices:
For purposes of this Confirmation:


 


(a)           Address for notices
or communications to Counterparty:


 


Affiliated Managers Group, Inc.


600 Hale Street


Prides Crossing, MA 01965


 


(b)           Address for notices
or communications to BofA:


 


Bank of America, N.A.


c/o Banc of America Securities LLC


Bank of America Tower at One Bryant Park


New York, NY 10036 


Telephone:   646-855-2527 


Facsimile:    704-208-2869 


Attention:     John Servidio


 


7.             Other Provisions:


 


(a)         Conditions to Effectiveness.  This Transaction shall be effective if and
only if Shares are sold on or after the Trade Date pursuant to the Distribution
Agreement.  If the Distribution Agreement
is terminated prior to any such sale of Shares thereunder, the parties shall
have no further obligations in connection with this Transaction, other than in
respect of breaches of representations or covenants on or prior to such date.


 


(b)        Distribution Agreement
Representations, Warranties and Covenants. 
On the Trade Date and on each date on which BofA or its affiliates
delivers a prospectus in connection with a sale to hedge this Transaction,
Counterparty repeats and reaffirms as of such date all of the representations
and warranties contained in the Distribution Agreement.  Counterparty hereby agrees to comply with its
covenants contained in the Distribution Agreement as if such covenants were
made in favor of BofA.


 


(c)         Interpretive Letter.  Counterparty agrees and acknowledges that
this Transaction is being entered into in accordance with the October 9,
2003 interpretive letter from the staff of the Securities and Exchange
Commission to Goldman, Sachs & Co. (the “Interpretive Letter”) and agrees to take all actions, and to
omit to take any actions, reasonably requested by BofA for this Transaction to
comply with the Interpretive Letter. 
Without limiting the foregoing, Counterparty agrees that neither it nor
any “affiliated purchaser” (as defined in Regulation M (“Regulation M”) promulgated under the
Exchange Act) will, directly or indirectly, bid for, purchase or attempt to
induce any person to bid for or purchase, the Shares or securities that are
convertible into, or exchangeable or exercisable for, Shares during any
“restricted period” as such term is defined in Regulation M.  In addition, Counterparty represents that it
is eligible to conduct a primary offering of Shares on Form S-3, the
offering contemplated by the Distribution Agreement complies with Rule 415
under the Securities Act of 1933, as amended (the “Securities Act”), and the Shares are “actively traded” as
defined in Rule 101(c)(1) of Regulation M.


 


8














 


(d)                         Agreements and
Acknowledgments Regarding Shares.


 


(i)                                     Counterparty
agrees and acknowledges that, in respect of any Shares delivered to BofA
hereunder, such Shares shall be newly issued (unless mutually agreed otherwise
by the parties) and upon such delivery, duly and validly authorized, issued and
outstanding, fully paid and nonassessable, free of any lien, charge, claim or
other encumbrance and not subject to any preemptive or similar rights and
shall, upon such issuance, be accepted for listing or quotation on the
Exchange;


 


(ii)                                  Counterparty
agrees and acknowledges that BofA will hedge its exposure to this Transaction
by selling Shares borrowed from third party securities lenders or other Shares
pursuant to a registration statement, and that, pursuant to the terms of the
Interpretive Letter, the Shares (up to the Initial Number of Shares) delivered,
pledged or loaned by Counterparty to BofA in connection with this Transaction
may be used by BofA to return to securities lenders without further registration
under the Securities Act.  Accordingly,
Counterparty agrees that the Shares that it delivers, pledges or loans to BofA
on or prior to the final Settlement Date will not bear a restrictive legend and
that such Shares will be deposited in, and the delivery thereof shall be
effected through the facilities of, the Clearance System;


 


(iii)                               Counterparty
has reserved and will keep available at all times, free from preemptive or
similar rights and free from any lien, charge, claim or other encumbrance,
authorized but unissued Shares at least equal to the Number of Shares, solely
for the purpose of settlement under this Transaction;


 


(iv)                              Unless
the provisions set forth below under “Private Placement Procedures” are
applicable, BofA agrees to use any Shares delivered by Counterparty hereunder
on any Settlement Date to return to securities lenders to close out open
securities loans with respect to the Shares; and


 


(v)                                 In
connection with bids and purchases of Shares in connection with any Cash
Settlement or Net Stock Settlement of this Transaction, BofA shall use its good
faith efforts to comply, or cause compliance, with the provisions of Rule 10b-18
under the Exchange Act, taking into account any purchases under other Equity
Contracts, as if such provisions were applicable to such purchases.


 


(e)                                  Securities Laws
Representations and Agreements.


 


(i)                                     Counterparty
represents to BofA on the Trade Date and on any date that Counterparty notifies
BofA that Cash Settlement, Net Stock Settlement or Alternative Settlement under
Paragraph 7(l) applies to this Transaction,
that (i) each of its filings under the Securities Act, the Exchange Act or
other applicable securities laws that are required to be filed have been filed
and that, as of the respective dates thereof and as of the date of this
representation, there is no misstatement of material fact contained therein or
omission of a material fact required to be stated therein or necessary to make
the statements made therein, in the light of the circumstances under which they
were made, not misleading; and (ii) it has not and will not directly or
indirectly violate any applicable law (including, without limitation, the
Securities Act and the Exchange Act) in connection with this Transaction.  In addition to any other requirement set
forth herein, Counterparty agrees not to designate any Settlement Date or elect
Alternative Settlement under Paragraph 7(l) if
settlement in respect of such date would result in a violation of any
applicable federal or state law or regulation, including the U.S. federal
securities laws.


 


(ii)                                  It
is the intent of BofA and Counterparty that following any election of Cash
Settlement or Net Stock Settlement by Counterparty, the purchase of Shares by
BofA during any Unwind Period comply with the requirements of Rule 10b5-l(c)(l)(i)(B) of
the Exchange Act and that this Confirmation shall be interpreted to comply with
the requirements of Rule 10b5-l(c).


 


Counterparty acknowledges that (i) during
any Unwind Period Counterparty shall not have, and shall not attempt to
exercise, any influence over how, when or whether to effect purchases of Shares
by BofA (or its agent or affiliate) in connection with this Confirmation and (ii) Counterparty
is entering into the Agreement and this Confirmation in good faith and not as
part of a plan or scheme to evade compliance with federal securities laws
including, without limitation, Rule 10b-5 promulgated under the Exchange
Act.


 


Counterparty hereby agrees with BofA that
during any Unwind Period Counterparty shall not communicate, directly or
indirectly, any Material Non-Public Information (as defined herein) to any
Equity Derivatives Group Personnel (as defined below).  For purposes of this Transaction, “Material Non-Public 


 


9

















 


Information” means
information relating to Counterparty or the Shares that (a) has not been
widely disseminated by wire service, in one or more newspapers of general
circulation, by communication from Counterparty to its shareholders or in a press release, or contained in a
public filing made by Counterparty with the Securities and Exchange Commission
and (b) a reasonable investor might consider to be of importance in making an investment decision to buy,
sell or hold Shares.  For the avoidance
of doubt and solely by way of
illustration, information should be presumed “material” if it relates to such
matters as dividend increases or decreases, earnings estimates, changes in
previously released earnings estimates, significant expansion or curtailment of
operations, a significant increase or decline of orders, significant merger or
acquisition proposals or agreements, significant new products or discoveries,
extraordinary borrowing, major litigation, liquidity problems, extraordinary
management developments, purchase or sale of substantial assets, or other
similar information For purposes of this Transaction, “Equity
Derivatives Group Personnel” means any employee of BofA or its
affiliates who effects purchases or sales of Shares in connection with this
Agreement.


 


(iii)                               Counterparty
shall, at least one day prior to the first day of any Unwind Period, notify
BofA of the total number of Shares purchased in Rule 10b-18 purchases of
blocks pursuant to the once-a-week block exception contained in Rule 10b-18(b)(4) by
or for Counterparty or any of its affiliated purchasers during each of the four
calendar weeks preceding the first day of the Unwind Period and during the
calendar week in which the first day of the Unwind Period occurs (“Rule 10b-18
purchase”, “blocks” and “affiliated purchaser” each being used as defined in Rule 10b-18).


 


(iv)                              During
any Unwind Period, Counterparty shall (i) notify BofA prior to the opening
of trading in the Shares on any day on which Counterparty makes, or expects to
be made, any public announcement (as defined in Rule 165(f) under the
Securities Act of 1933, as amended (the “Securities
Act”) of any merger, acquisition, or similar transaction involving a
recapitalization relating to Counterparty (other than any such transaction in
which the consideration consists solely of cash and there is no valuation
period), (ii) promptly notify BofA following any such announcement that
such announcement has been made, and (iii) promptly deliver to BofA
following the making of any such announcement information indicating (A) Counterparty’s
average daily Rule 10b-18 purchases (as defined in Rule 10b-18)
during the three full calendar months preceding the date of the announcement of
such transaction and (B) Counterparty’s block purchases (as defined in Rule 10b-18)
effected pursuant to paragraph (b)(4) of Rule 10b-18 during the three
full calendar months preceding the date of the announcement of such
transaction.  In addition, Counterparty
shall promptly notify BofA of the earlier to occur of the completion of such
transaction and the completion of the vote by target shareholders.


 


(v)                                 Neither
Counterparty nor any of its affiliates shall take or refrain from taking any
action (including, without limitation, any direct purchases by Counterparty or
any of its affiliates, or any purchases by a party to a derivative transaction
with Counterparty or any of its affiliates), either under this Confirmation,
under an agreement with another party or otherwise, that might cause any
purchases of Shares by BofA or any of its affiliates in connection with any
Cash Settlement or Net Stock Settlement of this Transaction not to meet the
requirements of the safe harbor provided by Rule 10b-18 if such purchases
were made by Counterparty.


 


(vi)                              Counterparty
will not engage in any “distribution” (as defined in Regulation M) that would
cause a “restricted period” (as defined in Regulation M) to occur during any
Unwind Period.


 


(f)                                    Acceleration
Events.


 


(i)                                     Stock
Borrow Event.  If in BofA’s
reasonable judgment, (A) BofA is not able hedge its exposure under this
Transaction because insufficient Shares are made available for borrowing by
securities lenders or (B) BofA would incur a cost to borrow (or to
maintain a borrow of) sufficient Shares to hedge its exposure under this Transaction
that is equal to or greater than 100 basis points per annum per any Share (each
of (A) and (B), a “Stock Borrow Event”),
then BofA shall be entitled to designate any Scheduled Trading Day prior to the
date the Number of Shares is first reduced to zero to be a Settlement Date, by
providing Counterparty at least two Scheduled Trading Days’ notice prior to the
relevant Settlement Date, and to designate the number of Settlement Shares for
the relevant Settlement Date, which shall not exceed the number of Shares as to
which the relevant Stock Borrow Event relates.


 


10

















 


(ii)                                  Dividends.  If on any day after the Trade Date,
Counterparty declares a distribution, issue or dividend to existing holders of
the Shares of (A) any cash dividends in excess of USD 0.00 per Share or (B) share
capital or other securities of another issuer acquired or owned (directly or
indirectly) by Counterparty as a result of a spin-off or similar transaction or
(C) any other type of securities (other than Shares), rights or warrants
or other assets, in any case for payment (cash or other consideration) at less
than the prevailing market price, as determined by BofA, then BofA shall be
entitled to designate any Scheduled Trading Day prior to the date the Number of
Shares is first reduced to zero to be a Settlement Date, by providing
Counterparty at least three Scheduled Trading Days’ notice prior to the
relevant Settlement Date, and to designate the number of Settlement Shares for
the relevant Settlement Date.


 


(iii)                               Stock
Price Event.  If at any time after
the Trade Date the traded price per Share on the Exchange is less than or equal
to USD 25.00, then BofA shall be entitled at any time thereafter to designate
one or more Scheduled Trading Days prior to the date the Number of Shares is
first reduced to zero to be a Settlement Date, by providing Counterparty at
least ten Scheduled Trading Days’ notice prior to the relevant Settlement Date,
and to designate the number of Settlement Shares for the relevant Settlement
Date.


 


(iv)                              Board
Approval of Merger Event.  If on any
day after the Trade Date, the board of directors of Counterparty votes to
approve any action that, if consummated, would constitute a Merger Event, then
Counterparty shall notify BofA of such occurrence within one Scheduled Trading
Day after such occurrence and BofA shall be entitled to designate any Scheduled
Trading Day prior to the date the Number of Shares is first reduced to zero to
be a Settlement Date, by providing Counterparty at least twenty Scheduled
Trading Days’ notice prior to the relevant Settlement Date, and to designate
the number of Settlement Shares for the relevant Settlement Date.


 


(v)                                 ISDA
Termination.  In lieu of (A) designating
an Early Termination Date as the result of an Event of Default or Termination
Event, (B) terminating this Transaction and determining a Cancellation
Amount as the result of an Additional Disruption Event, or (C) terminating
this Transaction and determining an amount payable in connection with an
Extraordinary Event to which Cancellation and Payment would otherwise be
applicable, BofA shall be entitled to designate any Scheduled Trading Day prior
to the date the Number of Shares is first reduced to zero to be a Settlement
Date with respect to the Number of Shares.


 


(vi)                              Termination
Settlement.  Notwithstanding anything
to the contrary herein, in the Agreement or in the Equity Definitions, if a
Settlement Date is designated by BofA as the result of one of the foregoing
sub-paragraphs (i) through (v), Physical Settlement shall apply.


 


(g)                                 Private Placement
Procedures.  If Counterparty is
unable to comply with the provisions of sub-paragraph (ii) of “Agreements
and Acknowledgments Regarding Shares” above because of a change in law or a
change in the policy of the Securities and Exchange Commission or its staff, or
BofA otherwise determines that in its reasonable opinion any Shares to be
delivered to BofA by Counterparty may not be freely returned by BofA to
securities lenders as described under such sub-paragraph (ii), or otherwise
constitute “restricted securities” as defined in Rule 144 under the
Securities Act then delivery of any such Shares (the “Restricted Shares”) shall be effected as
provided below, unless waived by BofA.


 


(i)                                     If
Counterparty delivers the Restricted Shares pursuant to this clause (i) (a
“Private Placement Settlement”),
then delivery of Restricted Shares by Counterparty shall be effected in
customary private placement procedures with respect to such Restricted Shares
reasonably acceptable to BofA; provided that
Counterparty may not elect a Private Placement Settlement if, on the date of
its election, it has taken, or caused to be taken, any action that would make
unavailable either the exemption pursuant to Section 4(2) of the
Securities Act for the sale by Counterparty to BofA (or any affiliate
designated by BofA) of the Restricted Shares or the exemption pursuant to Section 4(1) or
Section 4(3) of the Securities Act for resales of the Restricted
Shares by BofA (or any such affiliate of BofA). 
The Private Placement Settlement of such Restricted Shares shall include
customary representations, covenants, blue sky and other governmental filings
and/or registrations, indemnities to BofA, due diligence rights (for BofA or
any designated buyer of the Restricted Shares by BofA), opinions and
certificates, and such other documentation as is customary for private
placement agreements, all reasonably acceptable to BofA.  In the case of a Private Placement
Settlement, BofA shall, in its good faith discretion, adjust the amount of
Restricted Shares to be delivered to BofA hereunder in a commercially
reasonable manner to reflect the fact that such Restricted Shares may not be
freely returned to securities lenders by BofA and may only be saleable by BofA
at a discount to reflect the lack of liquidity in 


 


11

















 


Restricted Shares.  Notwithstanding the Agreement or this
Confirmation, the date of delivery of such Restricted Shares shall be the Clearance
System Business Day following notice by BofA to Counterparty of the number of
Restricted Shares to be delivered pursuant to this clause (i).  For the avoidance of doubt, delivery of
Restricted Shares shall be due as set forth in the previous sentence and not be
due on the date that would otherwise be applicable.


 


(ii)                                  If
Counterparty delivers any Restricted Shares in respect of this Transaction,
Counterparty agrees that (A) such Shares may be transferred by and among
BofA and its affiliates and (B) after the minimum “holding period” within
the meaning of Rule 144(d) under the Securities Act has elapsed,
Counterparty shall promptly remove, or cause the transfer agent for the Shares
to remove, any legends referring to any transfer restrictions from such Shares
upon delivery by BofA (or such affiliate of BofA) to Counterparty or such
transfer agent of seller’s and broker’s representation letters customarily
delivered by BofA or its affiliates in connection with resales of restricted
securities pursuant to Rule 144 under the Securities Act, each without any
further requirement for the delivery of any certificate, consent, agreement,
opinion of counsel, notice or any other document, any transfer tax stamps or
payment of any other amount or any other action by BofA (or such affiliate of
BofA).


 


(h)                                 Indemnity.  Counterparty agrees to indemnify BofA and its
affiliates and their respective directors, officers, employees, agents and
controlling persons (BofA and each such affiliate or person being an “Indemnified Party”) from and against any
and all losses, claims, damages and liabilities, joint and several, incurred by
or asserted against such Indemnified Party arising out of, in connection with,
or relating to, the execution or delivery of this Confirmation, the performance
by the parties hereto of their respective obligations under the Transaction,
any breach of any covenant or representation made by Counterparty in this
Confirmation or the Agreement or the consummation of the transactions
contemplated hereby and will reimburse any Indemnified Party for all reasonable
expenses (including reasonable legal fees and expenses) as they are incurred in
connection with the investigation of, preparation for, or defense of any
pending or threatened claim or any action or proceeding arising therefrom,
whether or not such Indemnified Party is a party thereto, except to the extent
resulting from BofA’s gross negligence or willful misconduct.


 


(i)                                     Waiver of Trial
by Jury.  EACH OF COUNTERPARTY AND
BOFA HEREBY IRREVOCABLY WAIVES (ON ITS OWN BEHALF AND, TO THE EXTENT PERMITTED
BY APPLICABLE LAW, ON BEHALF OF ITS STOCKHOLDERS) ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THE TRANSACTION OR THE ACTIONS OF BOFA
OR ITS AFFILIATES IN THE NEGOTIATION, PERFORMANCE OR ENFORCEMENT HEREOF.


 


(j)                                     Governing
Law/Jurisdiction.  This Confirmation
shall be governed by the laws of the State of New York without reference to the
conflict of laws provisions thereof.  The
parties hereto irrevocably submit to the exclusive jurisdiction of the courts
of the State of New York and the United States Court for the Southern District
of New York in connection with all matters relating hereto and waive any
objection to the laying of venue in, and any claim of inconvenient forum with
respect to, these courts.


 


(k)                                  Designation by
BofA.  Notwithstanding any other
provision in this Confirmation to the contrary requiring or allowing BofA to
purchase, sell, receive or deliver any Shares or other securities to or from
Counterparty, BofA may designate any of its affiliates to purchase, sell,
receive or deliver such Shares or other securities and otherwise to perform
BofA obligations in respect of the Transaction and any such designee may assume
such obligations.  BofA shall be
discharged of its obligations to Counterparty only to the extent of any such
performance.


 


(l)                                     EITF
00-19; Alternative Settlement.  The
parties hereby agree that all documentation with respect to this Transaction is
intended to qualify this Transaction as an equity instrument for purposes of
EITF Issue No. 00-19.  If, subject to Paragraph 7(t) below,
Counterparty owes BofA any amount in connection with this Transaction pursuant
to Section 12.7 or 12.9 of the Equity Definitions (except in the case of
an Extraordinary Event in which the consideration or proceeds to be paid to
holders of Shares as a result of such event consists solely of cash) or
pursuant to Section 6(d)(ii) of the Agreement (except in the case of
an Event of Default in which Counterparty is the Defaulting Party or a
Termination Event in which Counterparty is the Affected Party, other than (x) an
Event of Default of the type described in Section 5(a)(iii), (v), (vi) or
(vii) of the Agreement or (y) a Termination Event of the type
described in Section 5(b)(i), (ii), (iii), (iv), or (v) of the
Agreement that in the case of either (x) or (y) resulted from an
event or events outside Counterparty’s control) (a “Payment Obligation”), Counterparty shall have the right, in
its sole discretion, to satisfy any such Payment Obligation by delivery of
Termination Delivery Units (as 


 


12

















 


defined below) by giving irrevocable
telephonic notice to BofA, confirmed in writing within one Scheduled Trading
Day, between the hours of 9:00 a.m. and 4:00 p.m. New York time on
the Closing Date or Early Termination Date, as applicable (“Notice of Termination Delivery”).  Upon Notice of Termination Delivery,
Counterparty shall deliver to BofA a number of Termination Delivery Units
having a cash value equal to the amount of such Payment Obligation (such number
of Termination Delivery Units to be delivered to be determined by the
Calculation Agent acting in a commercially reasonable manner, taking into
account whether the Termination Delivery Units so delivered are freely
tradable).  Settlement relating to any
delivery of Termination Delivery Units pursuant to this provision shall occur within
three Scheduled Trading Days.  “Termination Delivery Unit” means (A) in
the case of a Termination Event, an Event of Default or an Extraordinary Event
(other than an Insolvency, Nationalization, Merger Event or Tender Offer), one
Share or (B) in the case of an Insolvency, Nationalization, Merger Event
or Tender Offer, a unit consisting of the number or amount of each type of
property received by a holder of one Share (without consideration of any
requirement to pay cash or other consideration in lieu of fractional amounts of
any securities) in such Insolvency, Nationalization, Merger Event or Tender
Offer; provided that if such
Insolvency, Nationalization, Merger Event or Tender Offer involves a choice of
consideration to be received by holders, such holder shall be deemed to have
elected to receive the maximum possible amount of cash.


 


(m)                               Disclosure. Effective from the date of commencement of discussions concerning the
Transaction, each of BofA and Counterparty and each of their employees,
representatives, or other agents may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the Transaction
and all materials of any kind (including opinions or other tax analyses)
relating to such tax treatment and tax structure.


 


(n)                                 Right
to Extend.  BofA may postpone any
Settlement Date or any other date of valuation or delivery, with respect to
some or all of the relevant Settlement Shares, if BofA determines, in its
discretion, that such extension is reasonably necessary or appropriate to
enable BofA to effect purchases of Shares in connection with its hedging
activity hereunder or under any other Equity Contract in a manner that would,
if BofA were Counterparty or an affiliated purchaser of Counterparty, be in
compliance with applicable legal and regulatory requirements, as determined by
BofA based upon the advice of outside counsel of national standing.


 


(o)                                 Counterparty Share Repurchases. 
Counterparty agrees not to repurchase any Shares if, immediately
following such purchase, the Number of Shares under this Confirmation and all
other Equity Contracts (as defined in Paragraph 7(t)) would be equal to or
greater than 8.0% of the number of then-outstanding Shares or such other number
of Shares as BofA notifies Counterparty would, in the reasonable judgment of
outside counsel of national standing for BofA, present legal or regulatory
issues for BofA.


 


(p)                                 Limit
on Beneficial Ownership. 
Notwithstanding any other provisions hereof, BofA shall not be entitled
to receive Shares hereunder (whether in connection with the purchase of Shares
on any Settlement Date or otherwise) to the extent (but only to the extent)
that such receipt would result in BofA and its affiliates (i) directly or
indirectly beneficially owning (as such term is defined for purposes of Section 13(d) of
the Exchange Act) at any time in excess of 4.9% of the outstanding Shares or (ii) having
direct or indirect ownership or control (for purposes of the Bank Holding
Company Act of 1956, as amended) at any time in excess of 4.9% of the
outstanding Shares.  Any purported
delivery hereunder shall be void and have no effect to the extent (but only to
the extent) that such delivery would result in BofA and its affiliates directly
or indirectly so beneficially owning or so owning or controlling in excess of
4.9% of the outstanding Shares.  If any
delivery owed to BofA hereunder is not made, in whole or in part, as a result
of this provision, Counterparty’s obligation to make such delivery shall not be
extinguished and Counterparty shall make such delivery as promptly as
practicable after, but in no event later than one Exchange Business Day after,
BofA gives notice to Counterparty that such delivery would not result in BofA
and its affiliates directly or indirectly so beneficially owning or so owning
or controlling in excess of 4.9% of the outstanding Shares.


 


(q)                                 Commodity Exchange Act. 
Each of BofA and Counterparty agrees and represents that it is an
“eligible contract participant” as defined in Section 1a(12) of the U.S.
Commodity Exchange Act, as amended (the “CEA”),
the Agreement and this Transaction are subject to individual negotiation by the
parties and have not been executed or traded on a “trading facility” as defined
in Section 1a(33) of the CEA.


 


(r)                                    Bankruptcy
Status.  BofA acknowledges and agrees
that this Confirmation is not intended to convey to BofA rights with respect to
the transactions contemplated hereby that are senior to the claims of
Counterparty’s common stockholders in any U.S. bankruptcy proceedings of
Counterparty; provided, however,
that nothing herein shall be deemed to limit BofA’s right to pursue remedies in
the event of a breach by Counterparty of its obligations and agreements with
respect to this Confirmation and the Agreement; and provided,
further, that 


 


13

















 


nothing herein shall limit or shall be deemed to limit BofA’s rights in
respect of any transaction other than this Transaction.


 


(s)                                  No Collateral.  The parties acknowledge that this Transaction
is not secured by any collateral that would otherwise secure the obligations of
Counterparty herein under or pursuant to the Agreement.  Without limiting the generality of the
foregoing, this Transaction will not be considered to create obligations
covered by any collateral credit support annex to the Agreement and will be
disregarded for the purposes of calculating any exposures pursuant to any such
annex.


 


(t)                                    Netting and Set-off.  BofA
agrees not to set-off or net amounts due from Counterparty with respect to this
Transaction against amounts due from BofA to Counterparty under obligations
other than Equity Contracts.  Section 2(c) of
the Agreement as it applies to payments due with respect to this Transaction
shall remain in effect and is not subject to the first sentence of this
provision.  The parties agree that Section 6(f) of
the Agreement is amended and restated to read as follows:


 


“(f)                              Upon the occurrence of an
Event of Default or Termination Event with respect to Counterparty as the
Defaulting Party or the Affected Party (“X”), BofA (“Y”) will have the right
(but not be obliged) without prior notice to X or any other person to set-off
or apply any obligation of X under an Equity Contract owed to Y (or any
Affiliate of Y) (whether or not matured or contingent and whether or not
arising under this Agreement, and regardless of the currency, place of payment
or booking office of the obligation) against any obligation of Y (or any
Affiliate of Y) under an Equity Contract owed to X (whether or not matured or
contingent and whether or not arising under this Agreement, and regardless of
the currency, place of payment or booking office of the obligation).  Y will give notice to the other party of any
set-off effected under this Section 6(f).


 


“Equity Contract” shall mean for
purposes of this Section 6(f) any Transaction relating to Shares sold
pursuant to the Distribution Agreement.


 


If any obligation is unascertained, Y may in
good faith estimate that obligation and set-off in respect of the estimate,
subject to the relevant party accounting to the other when the obligation is
ascertained.


 


Nothing in this Section 6(f) shall
be effective to create a charge or other security interest.  This Section 6(f) shall be without
prejudice and in addition to any right of set-off, combination of accounts,
lien or other right to which any party is at any time otherwise entitled
(whether by operation of law, contract or otherwise).”


 


(u)                                 Tax Representations.


 


(i)                                     For
the purpose of Section 3(e) of the Agreement, each party makes the
following                                                representation:


 


(A)                              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 the Agreement and any
other payments of interest and penalty charges for late payment) to be made by
it to the other party under the Agreement.


 


(B)                                In making this
representation, a party 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)(i) or
4(a)(iii) of the 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 the Agreement, and (iii) the satisfaction of the
agreement of the other party contained in Section 4(d) of the
Agreement, provided that it shall not be a breach
of this representation where reliance is placed on clause (ii) above 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.


 


14

















 


(ii)                                  For the purpose of Section 3(f) of
the Agreement:


 


(A)                              BofA makes the following
representation(s):


 


(1)                                  It is a “U.S. person”
(as that term is used in section 1.1441-4(a)(3)(ii) of United States
Treasury Regulations) for United States federal income tax purposes.


 


(2)                                  It is a financial
institution that is an exempt recipient under Treasury Regulation Section 1.6049-4(c)(1)(ii)(M).


 


(B)                                The Counterparty
represents that it is a “U.S. person” (as that term is used in section
1.1441-4(a)(3)(ii) of United States Treasury Regulations) for United
States federal income tax purposes.


 


15

















 


Please confirm your agreement to be bound by the terms stated herein by
executing the copy of this Confirmation enclosed for that purpose and returning
it to John Servidio at Bank of America, N.A. (email
john.servidio@bofasecurities.com).


 


 


	
   

  	
   

  	
  Yours sincerely,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BANK OF AMERICA, N.A.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Michael Voris

  
	
   

  	
   

  	
  Name:

  	
  Michael Voris

  
	
   

  	
   

  	
  Title:

  	
  Principal

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Confirmed as of the date first above
  written:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  AFFILIATED MANAGERS GROUP, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ John Kingston, III

  	
   

  	
   

  
	
  Name:

  	
  John Kingston, III

  	
   

  	
   

  
	
  Title:

  	
  Executive Vice President, General Counsel
  and Secretary

  	
   

  	
   

  



 


Signature page to Registered Forward


Transaction Confirmation


 

















 





 


ANNEX A


 


PRICING SUPPLEMENT


 


Bank of America, N.A.


One Bryant Park


New York, NY 
10036


 


[                    ]


 


Affiliated Managers Group, Inc.


600 Hale Street


Prides
Crossing, MA  01965


 


Ladies and
Gentlemen:


 


This Pricing Supplement is the
Pricing Supplement contemplated by the Registered Forward Transaction dated as
of May 1, 2009 (the “Confirmation”)
between Affiliated Managers Group, Inc. (“Counterparty”) and Bank of America, N.A. (“BofA”).


 


For all purposes under the Confirmation,


 


(a)                                  the Hedge Completion
Date is
[                    ];


 


(b)                                 the Number of Shares
shall be
[                    ], subject to further adjustment in accordance
with the terms of the Confirmation;


 


(c)                                  the
Initial Forward Price shall be USD
[                    ];
and


 


(d)                                 the Final Date shall
be
[                    ]


 


 


A-1

















 


	
   

  	
   

  	
  Very truly yours,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BANK OF AMERICA, N.A.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Confirmed as of the date first above written:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  AFFILIATED MANAGERS GROUP, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  



 


A-2