Exhibit 10.3


 





 


EXECUTION COPY


 


	
  Date:

  	
  August 15, 2008

  
	
   

  	
   

  
	
  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-36049


 


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:

  	
  August 15, 2008

  
	
   

  	
   

  	
   

  
	
   

  	
  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”)

  



 


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  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) September 30,
  2008.  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%

  
	
   

  	
   

  	
   

  
	
   

  	
  Prepayment:

  	
  Not Applicable

  
	
   

  	
   

  	
   

  
	
   

  	
  Variable Obligation:

  	
  Not Applicable

  
	
   

  	
   

  	
   

  
	
   

  	
  Exchange:

  	
  The New York Stock Exchange

  
	
   

  	
   

  	
   

  
	
   

  	
  Related Exchange(s):

  	
  All Exchanges

  



 


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  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 

  



 


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  “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 

  
							



 


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  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.

  
	
   

  	
   

  	
   

  
	
   

  	
  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 

  



 


5

















 


	
   

  	
   

  	
  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 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

  



 


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  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 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

  



 


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  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

  
	
   

  	
   

  	
   

  
	
   

  	
  (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

  



 


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  Telephone:

  	
  704-208-2869

  
	
   

  	
  Facsimile:

  	
  646-855-2527

  
	
   

  	
  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.


 


(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


 


9














 


(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 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).


 


10

















 


(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 75 basis points per annum (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.


 


11

















 


(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 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


 


12

















 


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 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


 


13

















 


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


 


14

















 


(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)


 


15

















 


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.


 


(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:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  



 


Signature page to Registered Forward

Transaction Confirmation


 

















 





 


ANNEX A


 


PRICING SUPPLEMENT


 


Bank of America, N.A.


One Bryant Park


New York, NY  10036


 


                        ,
2008


 


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 August 15,
2008 (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
                      ,
2008;


 


(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:

  	
   

  	
   

  	
   

  



 


A-2