Exhibit 10.2


 


EXECUTION COPY


 


	
  Date:

  	
  May 7, 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-34742


 


Ladies and Gentlemen:


 


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


 


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


 


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


 


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


 


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


 


	
  General Terms:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Trade Date:

  	
   

  	
  May 7, 2008

  
	
   

  	
   

  	
   

  
	
  Effective
  Date:

  	
   

  	
  The first day on which Shares are sold
  pursuant to the Distribution Agency Agreement dated as of the date hereof
  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 the Trade Date
  through and including the Hedge Completion Date; provided,
  however, that on each Settlement Date
  and Cash Settlement Payment 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.

  
	
   

  	
   

  	
   

  
	
  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

  
	
   

  	
   

  	
   

  
	
  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

  



 


2

















 


	
   

  	
   

  	
  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 on which Shares are sold pursuant to the Distribution Agreement and
  up to and including the Final Date that is either:

  
	
   

  	
   

  	
   

  
	
   

  	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (b)         designated by BofA as a
  Settlement Date pursuant to the “Acceleration Event” 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 the Settlement
  Date shall instead be the next Exchange Business

  



 


3

















 


	
   

  	
   

  	
  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 Event” provisions of Paragraph
  7(f) below, as applicable; provided that
  the Settlement Shares so designated shall (i) not exceed the Number of
  Shares and (ii) be at least equal to the lesser of 100,000 and the
  Number of Shares; and

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (b)                                with
  respect to the Settlement Date on the Final Date, a number of Shares equal to
  the Number of Shares;

  
	
   

  	
   

  	
   

  
	
   

  	
   

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

  
	
   

  	
   

  	
   

  
	
  Settlement
  Method Election:

  	
   

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

  
	
   

  	
   

  	
   

  
	
  Physical
  Settlement:

  	
   

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

  



 


4

















 


	
   

  	
   

  	
  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).

  
	
   

  	
   

  	
   

  
	
  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-

  



 


5

















 


	
   

  	
   

  	
  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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  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

  



 


6

















 


	
   

  	
   

  	
  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, 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 

  



 


7

















 


	
   

  	
   

  	
  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 Bank of America Securities LLC

  	
   

  
	
   

  	
  Bank of America Tower at One Bryant Park

  
	
   

  	
  New York, NY 10036

  	
   

  	
   

  
	
   

  	
  Telephone:646-855-2527

  	
   

  	
   

  
	
   

  	
  Facsimile:704-208-2869

  	
   

  	
   

  
	
   

  	
  Attention:John Servidio

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
  Other Provisions:

  	
   

  	
   

  



 


(a)                                  Conditions to
Effectiveness. This Transaction shall be effective if and only if Shares
are sold 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


 


8

















 


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
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; and


 


(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.


 


(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, 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
Section 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


 


9

















 


Alternative Settlement under Section 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 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


 


10

















 


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 (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.


 


(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


 


11

















 


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 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


 


12

















 


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 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 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.


 


13














 


(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:


 


“(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.


 


14

















 


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.


 


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


 


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


 


15

















 


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


 


 


	
   

  	
  Yours sincerely,

  
	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael Voris

  
	
   

  	
  Name:

  	
  Michael Voris

  
	
   

  	
  Title:

  	
  Principal

  



 


 


	
  Confirmed as of the date first above
  written:

  	
   

  
	
   

  	
   

  
	
  AFFILIATED MANAGERS GROUP, INC.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ John Kingston, III

  	
   

  
	
  Name:

  	
  John Kingston, III

  	
   

  
	
  Title:

  	
  Executive Vice President, General Counsel

  and Secretary

  	
   

  



 


16

















 


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 May 6, 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
                        .


 


A-1

















 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BANK OF
  AMERICA, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Confirmed as of the date first above
  written:

  	
   

  
	
   

  	
   

  
	
  AFFILIATED MANAGERS GROUP, INC.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 


A-2