Exhibit 10.14


 





 


EXECUTION
COPY


 


Date:                    February 3,
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-38195


 


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:

  	
   

  	
  February 3, 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 7, 2008 between Counterparty and Banc of
  America Securities LLC (the “Distribution Agreement”)

  



 

















 


	
  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) April 30, 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:

  	
   

  	
  1.35%, 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%.

  
	
   

  	
   

  	
   

  
	
  Prepayment:

  	
   

  	
  Not Applicable

  
	
   

  	
   

  	
   

  
	
  Variable Obligation:

  	
   

  	
  Not Applicable

  
	
   

  	
   

  	
   

  
	
  Exchange:

  	
   

  	
  The New York Stock Exchange

  



 


2

















 


	
  Related Exchange(s):

  	
   

  	
  All Exchanges

  
	
   

  	
   

  	
   

  
	
  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 

  



 


3

















 


	
   

  	
   

  	
  “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, 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

  



 


4

















 


	
   

  	
   

  	
  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.

  
	
   

  	
   

  	
   

  
	
  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).

  



 


5

















 


	
  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 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 American 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

  



 


6

















 


	
   

  	
   

  	
  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 American 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.

  
	
   

  	
   

  	
   

  
	
  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, 

  



 


7

















 


	
   

  	
   

  	
  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

  
	
   

  	
   

  	
   

  
	
  (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


 


8

















 


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.


 


(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.


 


9

















 


(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 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


 


10

















 


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.


 


(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.


 


11














 


(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
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


 


12

















 


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 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


 


13

















 


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 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:


 


14

















 


“(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.


 


(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.


 


15

















 


(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.


 


16

















 


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/ Peter MacEwen

  	
   

  	
   

  
	
  Name: 

  	
  Peter MacEwen

  	
   

  
	
  Title:

  	
  Senior Vice President

  	
   

  
					



 


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 February 3,
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
[                    ]


 


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  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:

  	
   

  	
   

  
					



 


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