exv10w1



 





EXHIBIT 10.1




GOLDMAN, SACHS & CO.  85 BROAD STREET | NEW YORK, NEW YORK 10004 | Tel: 212 902 1000




Opening Transaction




	 	 	 
	
To:

	 	Piper Jaffray Companies

800 Nicollet Mall, Suite 800

Minneapolis, MN 55402
	 
	 	 
	A/C:

	 	[Insert Account Number]
	 
	 	 
	From:

	 	Goldman, Sachs & Co.
	 
	 	 
	Re:

	 	Accelerated Stock Buyback
	 
	 	 
	Ref. No:

	 	[Insert Reference Number]
	 
	 	 
	Date:

	 	August 16, 2006






          This master confirmation (this “Master Confirmation”), dated as of August 16, 2006, is
intended to supplement the terms and provisions of certain Transactions (each, a “Transaction”)
entered into from time to time between Goldman, Sachs & Co. (“GS&Co.”) and Piper Jaffray Companies
(“Counterparty”). This Master Confirmation, taken alone, is neither a commitment by either party to
enter into any Transaction nor evidence of a Transaction. The terms of any particular Transaction
shall be set forth in (i) a Supplemental Confirmation in the form of Schedule A hereto (a
“Supplemental Confirmation”), which shall reference this Master Confirmation and supplement, form a
part of, and be subject to this Master Confirmation and (ii) a Trade Notification in the form of
Schedule B hereto (a “Trade Notification”), which shall reference the relevant Supplemental
Confirmation and supplement, form a part of, and be subject to such Supplemental Confirmation.
This Master Confirmation, each Supplemental Confirmation and the related Trade Notification
together shall constitute a “Confirmation” as referred to in the 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 Master Confirmation. This Master Confirmation, each Supplemental
Confirmation and the related Trade Notification evidence a complete and binding agreement between
the Counterparty and GS&Co. as to subject matter and the terms of each Transaction to which this
Master Confirmation, such Supplemental Confirmation and Trade Notification relate and shall
supersede all prior or contemporaneous written or oral communications with respect thereto.




          This Master Confirmation, each Supplemental Confirmation and the related Trade Notification
supplement, form a part of, and are subject to an agreement in the form of the 1992 ISDA Master
Agreement (Multicurrency –Cross Border) (the “Agreement”) as if GS&Co. and Counterparty had
executed the Agreement on the date of this Master Confirmation (but without any Schedule except for
(i) the election of Loss and Second Method for purposes of Section 6(e) of the Agreement, New York
law (without regard to the conflicts of law principles) as the governing law and US Dollars (“USD”)
as the Termination Currency, (ii) the election that subparagraph (ii) of Section 2(c) will not
apply to Transactions and (iii) the replacement of the word “third” in the last line of Section
5(a)(i) with the word “first”).




          All provisions contained or incorporated by reference in the Agreement shall govern this
Master Confirmation, each Supplemental Confirmation and each Trade Notification except as expressly
modified herein.




          If, in relation to any Transaction to which this Master Confirmation, a Supplemental
Confirmation and the related Trade Notification relate, there is any inconsistency between the
Agreement, this Master Confirmation, any Supplemental Confirmation and the related Trade




 









 





Notification
and the Equity Definitions, the following will prevail for purposes of such Transaction in the order of precedence indicated: (i) such Trade Notification,
(ii) such Supplemental Confirmation; (iii) this Master Confirmation; (iv) the Agreement; and (v)
the Equity Definitions.



1.      Each Transaction constitutes a Share Forward Transaction for the purposes of the Equity
Definitions. Set forth below are the terms and conditions which, together with the terms and
conditions set forth in the related Supplemental Confirmation and Trade Notification (in respect of
the relevant Transaction), shall govern each such Transaction.




General Terms:




	 	 	 
	Trade Date:

	 	For each Transaction, as set forth in the Supplemental
Confirmation.
	 
	 	 
	Buyer:

	 	Counterparty
	 
	 	 
	Seller:

	 	GS&Co.
	 
	 	 
	Shares:

	 	Common Stock, $0.01 par value, of Counterparty (Ticker: PJC)
	 
	 	 
	Forward Price:

	 	The average of the VWAP Prices for each Exchange Business Day
in the Calculation Period.
	 
	 	 
	VWAP Price:

	 	For any Exchange Business Day, the New York Stock Exchange
10b-18 Volume Weighted Average Price per Share for the regular
trading session (including any extensions thereof) for such
Exchange Business Day (without regard to pre-open or after
hours trading outside of any regular trading session for such
Exchange Business Day), as published by Bloomberg at 4:15 p.m.
New York City time on such Exchange Business Day, on Bloomberg
page “PJC.N <Equity> AQR_SEC” (or any successor thereto).
	 
	 	 
	Forward Price Adjustment Amount:

	 	For each Transaction, as set forth in the Trade Notification.
	 
	 	 
	Calculation Period:

	 	The period from and including the first Exchange Business Day
immediately following the Hedge Completion Date to and
including the Termination Date (as may be adjusted in
accordance with the provisions hereof).
	 
	 	 
	Termination Date:

	 	For each Transaction, the date set forth in the Supplemental
Confirmation (as the same may be postponed in
accordance with the provisions hereof); provided that GS&Co.
shall have the right to designate any date (the “Accelerated
Termination Date”) on or after the First Acceleration Date as
the Termination Date (in lieu of the date set forth in the
Supplemental Confirmation) by providing notice to Counterparty
of any such designation on the Accelerated Termination Date;
provided, further, that if GS&Co. provides notice to
Counterparty of such designation prior to 9:30 a.m. New York
City time on the Accelerated Termination Date, then the
Termination Date shall be the Exchange Business Day immediately
preceding such Accelerated Termination Date.
	 
	 	 
	First Acceleration Date:

	 	For each Transaction, as set forth in the Supplemental
Confirmation.
	 
	 	 
	Hedge Period:

	 	The period from and including the day immediately after the
Trade Date to and including the Hedge Completion Date (as
adjusted in accordance with the provisions hereof).
	 
	 	 
	Hedge Completion Date:

	 	For each Transaction, the Exchange Business Day on which GS&Co.
finishes establishing its initial Hedge Positions in respect of
such Transaction, as determined by GS&Co. in its sole
discretion, which date shall be as set forth in the Trade
Notification (as the same may be postponed in accordance with
the provisions herein) but in no event will be a date later
than the date identified in the Supplemental Confirmation.






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	Hedge Period Reference Price:

	 	The average of the VWAP Prices for each Exchange Business Day
in the Hedge Period.
	 
	 	 
	Market Disruption Event:

	 	The definition of “Market Disruption Event” in Section 6.3(a)
of the Equity Definitions is hereby amended by deleting the
words “at any time during the one-hour period that ends at the
relevant Valuation Time” and inserting the words “at any time
on any Scheduled Trading Day during the Hedge Period or
Calculation Period or” after the word “material,” in the third
line thereof.
	 
	 	 
	 

	 	Notwithstanding anything to the contrary in the Equity Definitions, to the extent that any Exchange
Business Day in the Hedge Period or the Calculation Period is a Disrupted Day, the Calculation Agent
may postpone the Hedge Completion Date or the Termination Date, as the case may be. In such event, the
Calculation Agent must determine whether (i) such Disrupted Day is a Disrupted Day in full, in which
case the VWAP Price for such Disrupted Day shall not be included for purposes of determining the Hedge
Period Reference Price or the Forward Price, as the case may be, or (ii) such Disrupted Day is a
Disrupted Day only in part, in which case the VWAP Price for such Disrupted Day shall be determined by
the Calculation Agent based on Rule 10b-18 eligible transactions in the Shares on such Disrupted Day
effected before the relevant Market Disruption Event occurred and/or after the relevant Market
Disruption Event ended, as the case may be, and the weighting of the VWAP Price for the relevant
Exchange Business Days during the Hedge Period or the Calculation Period, as the case may be, shall be
adjusted by the Calculation Agent for purposes of determining the Hedge Period Reference Price or the
Forward Price, as the case may be, with such adjustments based on, among other factors, the duration of
any Market Disruption Event and the volume, historical trading patterns and price of the Shares.
	 
	 	 
	 

	 	If a Disrupted Day occurs during the Hedge Period or the Calculation Period, as the case may be, and
each of the 9 immediately following Scheduled Trading Days is a Disrupted Day, then the Calculation
Agent, in its discretion, may either (i) determine the VWAP Price for such ninth Scheduled Trading Day
based on the volume, historical trading patterns and price of the Shares and such other factors as it
deems appropriate or (ii) further extend the Hedge Period or the Calculation Period, as the case may
be, as it deems necessary to determine the VWAP Price.
	 
	 	 
	Exchange:

	 	NYSE
	 
	 	 
	Related Exchange(s):

	 	All Exchanges.
	 
	 	 
	Prepayment\Variable Obligation:

	 	Applicable
	 
	 	 
	Prepayment Amount:

	 	For each Transaction, as set forth in the Supplemental
Confirmation.
	 
	 	 
	Prepayment Date:

	 	Three (3) Exchange Business Days following the Trade Date.






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Settlement Terms:




	 	 	 
	Physical Settlement:

	 	Applicable; provided that GS&Co. does not, and shall not, make
the agreement or the representations set forth in Section
9.11(i) and (v) of the Equity Definitions related to the
restrictions imposed by applicable securities laws with respect
to any Shares delivered by GS&Co. to Counterparty under any
Transaction.
	 
	 	 
	Number of Shares to be Delivered:

	 	A number of Shares equal to (a) the Prepayment Amount divided
by (b) the Forward Price minus the Forward Price Adjustment
Amount; provided that the Number of Shares to be Delivered will
be not less than the Minimum Shares and not greater than the
Maximum Shares. The Number of Shares to be Delivered shall be
reduced, but not below zero, by any Shares delivered pursuant
to Initial Share Delivery as described below.
	 
	 	 
	Excess Dividend Amount:

	 	For the avoidance of doubt, all references to the Excess
Dividend Amount shall be deleted from Section 9.2(a)(iii) of
the Equity Definitions.
	 
	 	 
	Settlement Date:

	 	Three (3) Exchange Business Days following the Termination Date.
	 
	 	 
	Settlement Currency:

	 	USD
	 
	 	 
	Initial Share Delivery:

	 	GS&Co. shall deliver a number of Shares equal to the Minimum
Shares to Counterparty on the Initial Share Delivery Date in
accordance with Section 9.4 of the Equity Definitions, with the
Initial Share Delivery Date deemed to be a “Settlement Date”
for purposes of such Section 9.4.
	 
	 	 
	Initial Share Delivery Date:

	 	Three (3) Exchange Business Days following the Hedge Completion
Date.
	 
	 	 
	Minimum Shares:

	 	For each Transaction, as set forth in the Supplemental
Confirmation.
	 
	 	 
	Maximum Shares:

	 	For each Transaction, as set forth in the Supplemental
Confirmation.






Share Adjustments:




	 	 	 
	Potential Adjustment Event:

	 	Notwithstanding Section 11.2(e)(iii) of the Equity Definitions,
an Extraordinary Dividend shall not constitute a Potential
Adjustment Event.
	 
	 	 
	Extraordinary Dividend:

	 	For any calendar quarter occurring (in whole or in part) during
the period from and including the first day of the Calculation
Period to and including the Termination Date, any dividend or
distribution on the Shares with an ex-dividend date occurring
during such calendar quarter (other than any dividend or
distribution of the type described in Section 11.2(e)(i) or
Section 11.2(e)(ii)(A) or (B) of the Equity Definitions) (a
“Dividend”) the amount or value of which (as determined by the
Calculation Agent), when aggregated with the amount or value
(as determined by the Calculation Agent) of any and all
previous Dividends with ex-dividend dates occurring in the same
calendar quarter, exceeds the Ordinary Dividend Amount.
	 
	 	 
	Ordinary Dividend Amount:

	 	For each Transaction, as set forth in the Supplemental
Confirmation.
	 
	 	 
	Method of Adjustment:

	 	Calculation Agent Adjustment






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	Extraordinary Events:
	 	 
	 
	 	 
	Consequences of
Merger Events and
Tender Offers:
	 	 
	 
	 	 
	     (a)     Share-for-Share:

	 	Modified Calculation Agent Adjustment
	 
	 	 
	     (b)     Share-for-Other:

	 	Cancellation and Payment
	 
	 	 
	     (c)     Share-for-Combined:

	 	Component Adjustment
	 
	 	 
	     Determining Party:

	 	Not applicable
	 
	 	 
	Tender Offer:

	 	Applicable; provided that the reference in the third line of
Section 12.1(d) of the Equity Definitions to “10%” shall be
deleted and replaced with “20%” and the parties agree that
references to “any entity or person” in Section 12.1(d) of the
Equity Definitions shall not be interpreted to include GS&Co.
or any of its affiliates.
	 
	 	 
	Nationalization,
Insolvency or Delisting:

	 	Cancellation and Payment; provided that in addition to the
provisions of Section 12.6(a)(iii) of the Equity Definitions,
it shall 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 or The NASDAQ National
Market (or any of 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.
	 
	Notwithstanding anything to the contrary in the Equity Definitions, if, as a result of a Merger Event,
a Tender Offer, a Nationalization, an Insolvency or a Delisting, Cancellation and Payment applies to
one or more Transactions hereunder (whether in whole or in part), an Additional Termination Event shall
be deemed to occur (with the Transactions (or portions thereof) to which Cancellation and Payment
applies being the Affected Transactions, Counterparty being the sole Affected Party and the Early
Termination Date being the date on which such Transactions would be cancelled pursuant to Article 12 of
the Equity Definitions) and, in lieu of Sections 12.7 and 12.8 of the Equity Definitions, Section 6 of
the Agreement shall apply to such Affected Transactions.

Additional Disruption Events:






	 	 	 
	     (a)     Change in Law:

	 	Applicable; provided that Section 12.9(a)(ii) of the Equity
Definitions shall be amended by replacing clause (B) thereof
(including subclauses (X) and (Y)) with the following: “(B) due
to the promulgation of or any change in the interpretation by
any court, tribunal or regulatory authority with competent
jurisdiction of any applicable law or regulation (including any
action taken by a taxing authority), the Calculation Agent
determines in good faith that it has become illegal for a party
to a Transaction to hold, acquire or dispose of Shares,
provided that this Section 12.9(a)(ii) shall not apply if the
Calculation Agent determines that such party could have taken
reasonable steps to avoid such illegality.”
	 
	 	 
	     (b)     Failure to Deliver:

	 	Inapplicable
	 
	 	 
	     (c)     Insolvency Filing:

	 	Inapplicable






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	     (d)     Loss of Stock Borrow:

	 	Applicable; provided that Sections 12.9(a)(vii) and 12.9(b)(iv)
of the Equity Definitions shall be amended by deleting the
words “at a rate equal to or less than the Maximum Stock Loan
Rate” and replacing them with “at a rate of return equal to or
greater than zero”.
	 
	 	 
	               Hedging Party:

	 	GS&Co.
	 
	 	 
	               Determining Party:

	 	Not applicable





Notwithstanding anything to the contrary in the Equity Definitions, if, as a result of an
Additional Disruption Event, any Transaction is cancelled or terminated, an Additional Termination
Event (with such terminated Transaction(s) being the Affected Transaction(s), Counterparty being
the sole Affected Party and the Early Termination Date being the date on which such Transaction(s)
would be cancelled or terminated pursuant to Article 12 of the Equity Definitions) shall be deemed
to occur, and, in lieu of Sections 12.7 and 12.8 of the Equity Definitions, Section 6 of the
Agreement shall apply to such Affected Transaction(s).




	 	 	 
	Non-Reliance/Agreements and
Acknowledgements Regarding
Hedging Activities/Additional
Acknowledgements:

	 	Applicable
	 
	 	 
	Transfer:

	 	Notwithstanding anything to the contrary
in the Agreement, GS&Co. may assign,
transfer and set over all rights, title
and interest, powers, privileges and
remedies of GS&Co. under this
Transaction, in whole or in part, to an
affiliate of GS&Co. that is guaranteed
by The Goldman Sachs Group, Inc. without
the consent of Counterparty.
	 
	 	 
	GS&Co. Payment Instructions:

	 	Chase Manhattan Bank New York
For A/C Goldman, Sachs & Co.
A/C #930-1-011483
ABA: 021-000021
	 
	 	 
	Counterparty’s Contact Details
for Purpose of Giving Notice:

	 	To be provided by Counterparty
	 
	 	 
	GS&Co.’s Contact Details for
Purpose of Giving Notice:

	 	 
	 	Telephone No.:            (212) 902-8996
	 	Facsimile No.:              (212) 902-0112
	 

	 	Attention: Equity Operations: Options and Derivatives
	 
	 	 
	 

	 	With a copy to:
	 

	 	Jason Lee
	 

	 	Equity Capital Markets
	 

	 	One New York Plaza
	 

	 	New York, NY 10004
	 

	 	Telephone No.:            (212) 902-0923
	 

	 	Facsimile No.:              (212) 902-3000
	 
	2.     Calculation Agent.

	 	GS&Co.





3.      Additional Mutual Representations, Warranties and Covenants. In addition to the
representations and warranties in the Agreement, each party represents, warrants and covenants to
the other party that:




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          (a) Eligible Contract Participant. It is an “eligible contract participant”, as
defined in the U.S. Commodity Exchange Act (as amended), and is entering into each Transaction
hereunder as principal and not for the benefit of any third party.




          (b) Accredited Investor. It acknowledges that the offer and sale of each Transaction
to it is intended to be exempt from registration under the Securities Act of 1933, as amended (the
“Securities Act”), by virtue of Section 4(2) thereof and the provisions of Regulation D thereunder
(“Regulation D”). Accordingly, it represents and warrants to the other party that (i) it has the
financial ability to bear the economic risk of its investment in each Transaction and is able to
bear a total loss of its investment, (ii) it is an “accredited investor” as that term is defined
under Regulation D, (iii) it will purchase each Transaction for investment and not with a view to
the distribution or resale thereof in a manner that would violate the Securities Act, and (iv) the
disposition of each Transaction is restricted under this Master Confirmation, the Securities Act
and state securities laws.



3A.      Additional Representations, Warranties and Covenants of GS&Co. GS&Co. represents,
warrants and covenants to Counterparty that:




          (a) Compliance with Rule l0b-18. With respect to its purchase of any Shares in order
to hedge any Transaction, it will use good faith efforts to (i) effect such purchases in a manner
so that, if such purchases were made by Counterparty, they would meet the requirements of
paragraphs (b)(2), (3) and (4) of Rule l0b-l8 under the Exchange Act and (ii) effect calculations
in respect thereof (taking into account any applicable Securities and Exchange Commission no-action
letters as appropriate and subject to any delays between the execution and reporting of a trade of
the Shares on the Exchange and other circumstances beyond GS&Co.’s control) to the extent it uses
the number of Shares so purchased or the purchase price of any such purchase of Shares to determine
terms of such Transaction.




          (b) Avoidance of Tender Offer. It shall not purchase Shares to hedge any Transaction
in a manner that would constitute a “tender offer” under the Exchange Act.



4.      Additional Representations, Warranties and Covenants of Counterparty. In addition to
the representations, warranties and covenants in the Agreement and those contained herein, as of
(i) the date hereof, (ii) the Trade Date and (iii) to the extent indicated below, each day during
the Hedge Period, the Calculation Period and the Relevant Period (as defined in Section 13 hereof),
if any, Counterparty represents, warrants and covenants to GS&Co. that:




          (a) the purchase or writing of each Transaction and the transactions contemplated hereby will
not violate Rule 13e-1 or, assuming that GS&Co. complies with the representation in Section 3A(b),
Rule 13e-4 under the Exchange Act;




          (b) it is not entering into any Transaction (i) on the basis of, and is not aware of, any
material non-public information with respect to the Shares (ii) in anticipation of, in connection
with, or to facilitate, a distribution of its securities, a self tender offer or a third-party
tender offer or (iii) to create actual or apparent trading activity in the Shares (or any security
convertible into or exchangeable for the Shares) or to raise or depress or otherwise manipulate the
price of the Shares (or any security convertible into or exchangeable for the Shares);




          (c) each Transaction is being entered into pursuant to a publicly disclosed Share buy-back
program and its Board of Directors has approved the use of an accelerated stock buyback contract to
effect the Share buy-back program;




          (d) notwithstanding the generality of Section 13.1 of the Equity Definitions, it acknowledges
that GS&Co. is not making any representations or warranties with respect to the treatment of any
Transaction under FASB Statements 128, 133 as amended, or 149, 150, EITF 00-19 (or any successor
issue statements) or under Financial Accounting Standards Board’s Liabilities & Equity Project;




          (e) Counterparty is in compliance with its reporting obligations under the Exchange Act and
its most recent Annual Report on Form 10-K, together with all reports subsequently filed by it
pursuant to the Exchange Act, taken together and as amended and supplemented to the date of this
representation, do not, as of their respective filing dates, contain any untrue statement of a
material fact or omit to state any material fact




7









 







required
to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading;




          (f) Counterparty shall report each Transaction as required under Regulation S-K under the
Exchange Act;




          (g) during the Hedge Period, the Calculation Period or the Relevant Period, the Shares or
securities that are convertible into, or exchangeable or exercisable for Shares are not subject to
a “restricted period” as such term is defined in Regulation M promulgated under the Exchange Act
(“Regulation M”) or, if such restricted period does occur during the Hedge Period, the Calculation
Period or the Relevant Period, Counterparty agrees to provide written notice to GS&Co. to that
effect upon the earlier to occur of (x) the commencement of such restricted period or (y) the
public announcement of the transaction resulting in such restricted period; Counterparty
acknowledges that any such notice may cause the Hedge Period, the Calculation Period or the
Relevant Period to be extended or suspended pursuant to Section 5 below; accordingly, Counterparty
acknowledges that its delivery of such notice must comply with the standards set forth in Section 6
below;




          (h) it acknowledges that each Transaction is a derivatives transaction in which it has granted
GS&Co. an option. GS&Co. may purchase shares for its own account at an average price that may be
greater than, or less than, the price paid by Counterparty under the terms of the related
Transaction;




          (i) as of the Trade Date, the Prepayment Date and the Initial Share Delivery Date, (i) the
assets of Counterparty at their fair valuation exceed the liabilities of Counterparty, including
contingent liabilities, (ii) the capital of Counterparty is adequate to conduct the business of
Counterparty and (iii) Counterparty has the ability to pay its debts and obligations as such debts
mature and does not intend to, or does not believe that it will, incur debt beyond its ability to
pay as such debts mature;




          (j) Counterparty is not and, after giving effect to the Transaction, will not be, required to
register as an “investment company” as such term is defined in the Investment Company Act of 1940,
as amended; and




          (k) it has not, and during any Hedge Period, Calculation Period or Relevant Period will not,
enter into agreements similar to the Transactions described herein where any initial hedge period
(however defined), calculation period (however defined) or relevant period (however defined) in
such other transaction will overlap at any time (including as a result of extensions in such
initial hedge period, calculation period or relevant period as provided in the relevant agreements)
with any Hedge Period, Calculation Period or Relevant Period under any Transaction then in effect.
In the event that the initial hedge period, calculation period or relevant period in any other
similar transaction overlaps with any Hedge Period, Calculation Period or Relevant Period under any
Transaction then in effect as a result of an extension of the Termination Date pursuant to Section
5 herein, Counterparty shall make commercially reasonable efforts to amend such transaction to
avoid any such overlap.



5.      Suspension of Hedge Period, Calculation Period or Relevant Period.




          (a) If Counterparty concludes that it will be engaged in a distribution of the Shares for
purposes of Regulation M, Counterparty agrees that it will, upon the earlier to occur of (x) the
commencement of the “restricted period” (as defined in Regulation M) or (y) the public announcement
of the transaction resulting in such restricted period, direct GS&Co. not to purchase Shares in
connection with hedging any Transaction during such restricted period. If on any Scheduled Trading
Day Counterparty delivers written notice (and confirms by telephone) by 8:30 a.m. New York City
time (the “Notification Time”) then such notice shall be effective to suspend the Hedge Period or
the Calculation Period or both, as the case may be, as of such Notification Time. In the event
that Counterparty delivers notice and/or confirms by telephone after the Notification Time, then
the Hedge Period or the Calculation Period or both, as the case may be, shall be suspended
effective as of 8:30 a.m. New York City time on the following Scheduled Trading Day or as otherwise
required by law or agreed between Counterparty and GS&Co. The Hedge Period, the Calculation Period
or the Relevant Period, as the case may be, shall be suspended and the Hedge Completion Date or the
Termination Date or both, as the case may be, shall be extended for each Scheduled Trading Day in
such restricted period; accordingly, Counterparty acknowledges that its delivery of such notice
must comply with the standards set forth in Section 6 below, including, without limitation, the
requirement that such notice be made at a time at which none of Counterparty or any officer,
director, manager or similar person of Counterparty is aware of any material non-public information
regarding Counterparty or the Shares.




8









 








          (b) In the event that GS&Co. concludes, in its good faith discretion, based on advice of
outside legal counsel, that it is appropriate with respect to any legal, regulatory or
self-regulatory requirements or related policies and procedures (whether or not such requirements,
policies or procedures are imposed by law or have been voluntarily adopted by GS&Co.), for it to
refrain from purchasing Shares on any Scheduled Trading Day during the Hedge Period or the
Calculation Period, GS&Co. may by written notice to Counterparty elect to suspend the Hedge Period
or the Calculation Period, or both, as the case may be, for such number of Scheduled Trading Days
as is specified in the notice; provided that GS&Co. may exercise this right to suspend only in
relation to events or circumstances that are unknown to it or any of its affiliates at the Trade
Date of any Transaction, occur within the normal course of its or any of its affiliates’
businesses, and are not the result of deliberate actions of it or any of its affiliates with the
intent to avoid its obligations under the terms of any Transaction. The notice shall not specify,
and GS&Co. shall not otherwise communicate to Counterparty, the reason for GS&Co.’s election to
suspend the Hedge Period or the Calculation Period, or both, as the case may be. The Hedge Period
or the Calculation Period, or both, as the case may be, shall be suspended and the Termination Date
shall be extended for each Scheduled Trading Day occurring during any such suspension.




          (c) In the event that the Calculation Period or the Hedge Period, as the case may be, is
suspended pursuant to Section 5(a) or 5(b) above during the regular trading session on the
Exchange, such suspension shall be deemed to be an additional Market Disruption Event, and the
second paragraph under “Market Disruption Event” shall apply to any Disrupted Day occurring during
the Calculation Period or the Hedge Period, as the case may be, solely as a result of such
additional Market Disruption Event.




          (d) In the event that the Calculation Period is extended pursuant to any provision hereof
(including, without limitation, pursuant to Section 9(d) below), the Calculation Agent, in its
commercially reasonable discretion, shall adjust any relevant terms of the related Transaction if
necessary to preserve as nearly as practicable the economic terms of such Transaction prior to such
extension; provided that Counterparty shall not be required to make any additional cash payments or
deliver any Shares in connection with any such adjustments.



6.      10b5-1 Plan.




          (a) It is the intent of the parties that each Transaction entered into under this Master
Confirmation comply with the requirements of Rule 10b5-1(c) under the Exchange Act and each
Transaction entered into under this Master Confirmation shall be interpreted to comply with the
requirements of Rule 10b5-1(c).




          (b) Counterparty agrees that it is entering into this Master Confirmation and each Transaction
hereunder in good faith and not as part of a plan or scheme to evade the prohibitions of Rule
10b5-1 under the Exchange Act.




          (c) Counterparty will not seek to control or influence GS&Co. to make “purchases or sales”
(within the meaning of Rule 10b5-1(c)(1)(i)(B)(3)) under any Transaction entered into under this
Master Confirmation, including, without limitation, GS&Co.’s decision to enter into any hedging
transactions.




          (d) Counterparty acknowledges and agrees that any amendment, modification, waiver or
termination of this Master Confirmation, the relevant Supplemental Confirmation or Trade
Notification must be effected in accordance with the requirements for the amendment or termination
of a “plan” as defined in Rule 10b5-1(c). Without limiting the generality of the foregoing, any
such amendment, modification, waiver or termination shall be made in good faith and not as part of
a plan or scheme to evade the prohibitions of Rule 10b-5, and no such amendment, modification,
waiver or termination shall be made at any time at which Counterparty or any officer, director,
manager or similar person of Counterparty is aware of any material non-public information regarding
Counterparty or the Shares.



7.      Counterparty Purchases.




          Counterparty (or any “affiliated purchaser” as defined in Rule 10b-18 under the Exchange Act
(“Rule 10b-18”)) shall not, without the prior written consent of GS&Co., directly or indirectly
purchase any Shares, listed contracts on the Shares or securities that are convertible into, or
exchangeable or exercisable for Shares (including, without limitation, any Rule 10b-18 purchases of
blocks (as defined in Rule 10b-18))
 


9









 





during any
Hedge Period, Calculation Period or Relevant Period
(as extended pursuant to the provisions hereof); provided that purchases of any Shares effected by
or for an issuer plan of Counterparty by an agent independent of Counterparty that satisfy the
requirements of Section 10b-18(a)(13)(ii) (“issuer plan” and “agent independent of the issuer” each
being used as defined in Rule 10b-18) shall not be subject to the requirements of this sentence.
During this time, any such purchases by Counterparty (other than purchases of Shares effected by or
for an issuer plan of Counterparty by an agent independent of the issuer that satisfy the
requirements of Section 10b-18(a)(13)(ii)) shall be made through GS&Co., or if not through GS&Co.,
with the prior written consent of GS&Co., and in compliance with Rule 10b-18 or otherwise in a
manner that Counterparty and GS&Co. believe is in compliance with applicable requirements.



8.      Additional Termination Event. The declaration of any Extraordinary Dividend by the
Issuer during the Calculation Period will constitute an Additional Termination Event, with
Counterparty as the sole Affected Party and all Transactions hereunder as the Affected
Transactions.



9.      Special Provisions for Merger Transactions. Notwithstanding anything to the contrary
herein or in the Equity Definitions,




          (a) Counterparty shall notify GS&Co. of any Merger Transaction upon the earlier to occur of
(x) the public announcement (as defined in Rule 165(f) under the Securities Act of 1933, as
amended) of such Merger Transaction or (y) the time immediately prior to the opening of trading in
Shares on any day during which such public announcement occurs prior to the close of trading in the
Shares;




          (b) promptly notify GS&Co. following any such announcement that such announcement has been
made; and




          (c) promptly provide GS&Co. with written notice specifying (i) Counterparty’s average daily
Rule 10b-18 Purchases (as defined in Rule 10b-18) during the three full calendar months immediately
preceding the Announcement Date that were not effected through GS&Co. or its affiliates and (ii)
the number of Shares purchased pursuant to the proviso in Rule 10b-18(b)(4) under the Exchange Act
for the three full calendar months preceding the Announcement Date. Such written notice shall be
deemed to be a certification by Counterparty to GS&Co. that such information is true and correct.
In addition, Counterparty shall promptly notify GS&Co. of the earlier to occur of the completion of
such transaction and the completion of the vote by target shareholders. Counterparty acknowledges
that any such notice may cause the terms of any Transaction to be adjusted or such Transaction to
be terminated; accordingly, Counterparty acknowledges that its delivery of such notice must comply
with the standards set forth in Section 6 of this Master Confirmation (including, for the avoidance
of doubt, the requirements set forth in Section 6(d)); and




          (d) GS&Co. in its reasonable discretion may (i) in its capacity as the Calculation Agent, make
adjustments to the terms of any Transaction, including, without limitation, the Termination Date,
the Forward Price Adjustment Amount and the Maximum Shares to account for the number of Shares that
could be purchased on each day during the Hedge Period or the Calculation Period in compliance with
Rule 10b-18 following such public announcement, provided that Counterparty shall not be required to
make any additional cash payments or deliver any Shares in connection with any such adjustments or
(ii) treat the occurrence of such public announcement as an Additional Termination Event with
Counterparty as the sole Affected Party.




          “Merger Transaction” means any merger, acquisition or similar transaction involving a
recapitalization as contemplated by Rule 10b-18(a)(13)(iv) under the Exchange Act.



10.      Acknowledgments. The parties hereto intend for:




          (a) Each Transaction to be a “securities contract” as defined in Section 741(7) of the U.S.
Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”), a “swap agreement” as
defined in Section 101(53B) of the Bankruptcy Code, or a “forward contract” as defined in Section
101(25) of the Bankruptcy Code, and the parties hereto to be entitled to the protections afforded
by, among other Sections, Sections 362(b)(6), 362(b)(17), 362(b)(27), 555, 556, 560 and 561 of the
Bankruptcy Code;




10









 








          (b) The Agreement to be a “master netting agreement” as defined in Section 101(38A) of the
Bankruptcy Code;




          (c) A party’s right to liquidate or terminate any Transaction, net out or offset termination
values or payment amounts, and to exercise any other remedies upon the occurrence of any Event of
Default or Termination Event under the Agreement with respect to the other party or any
Extraordinary Event that results in the termination or cancellation of any Transaction to
constitute a “contractual right” (as defined in the Bankruptcy Code);




          (d) Any cash, securities or other property transferred as performance assurance, credit
support or collateral with respect to each Transaction to constitute “margin payments” (as defined
in the Bankruptcy Code); and




          (e) All payments for, under or in connection with each Transaction, all payments for the
Shares and the transfer of such Shares to constitute “settlement payments” and “transfers” (as
defined in the Bankruptcy Code).



11.      Credit Support Documents. The parties hereto acknowledge that no Transaction hereunder
is secured by any collateral.



12.      Limitation on Set-off. (a) Notwithstanding anything to the contrary in the Agreement
or the Equity Definitions, the calculation of any Settlement Amounts and Unpaid Amounts shall be
calculated separately for (A) all Terminated Transactions in the Shares of the Issuer that qualify
as equity under applicable accounting rules (collectively, the “Equity Shares”) as determined by
the Calculation Agent and (B) all other Terminated Transactions under the Agreement including,
without limitation, Transactions in Shares other than those of the Issuer (collectively, the “Other
Shares”) and the netting and set-off provisions of the Agreement shall only operate to provide
netting and set-off (i) among Terminated Transactions in the Equity Shares and (ii) among
Terminated Transactions in the Other Shares. In no event shall the netting and set-off provisions
of the Agreement operate to permit netting and set-off between Terminated Transactions in the
Equity Shares and Terminated Transactions in the Other Shares.




          (b) The parties agree to amend Section 6 of the Agreement by adding a new Section 6(f) thereto
as follows:




“(f) Upon the occurrence of an Event of Default or Termination
Event with respect to a party who is the Defaulting Party or the
Affected Party (“X”), the other party (“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 owed to Y (or any Affiliate of
Y) (whether or not matured or contingent and whether or not arising
under the 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) owed to X (whether or not matured or
contingent and whether or not arising under the 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).



Amounts (or the relevant portion of such amounts) subject to set-off
may be converted by Y into the Termination Currency at the rate of
exchange at which such party would be able, acting in a reasonable
manner and in good faith, to purchase the relevant amount of such
currency. 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).”



11









 





          (c) Notwithstanding anything to the contrary in the foregoing, GS&Co. agrees not to set off or
net amounts due from Counterparty with respect to any Transaction against amounts due from GS&Co.
to Counterparty under obligations other than Equity Contracts. “Equity Contract” means any
transaction relating to Shares between the parties (or any of their affiliates) that qualifies as
‘equity’ under applicable accounting rules.



13.      Early Termination. In the event that an Early Termination Date (whether as a result of
an Event of Default or a Termination Event) occurs or is designated with respect to any Transaction
(except as a result of a Merger Event in which the consideration or proceeds to be paid to holders
of Shares consists solely of cash), if GS&Co. would owe any amount to Counterparty pursuant to
Section 6(d)(ii) of the Agreement (calculated as if the Transactions being terminated on such Early
Termination Date were the sole Transactions under the Agreement) (any such amount, a “GS&Co.
Amount”), then, in lieu of any payment of such GS&Co. Amount, Counterparty may, no later than the
Early Termination Date or the date on which such Transaction is terminated, elect for GS&Co. to
deliver to Counterparty a number of Shares (or, in the case of a Merger Event, a number of units,
each comprising the number or amount of the securities or property that a hypothetical holder of
one Share would receive in such Merger Event (each such unit, an “Alternative Delivery Unit” and,
the securities or property comprising such unit, “Alternative Delivery Property”)) with a value
equal to the GS&Co. Amount, as determined by the Calculation Agent (and the parties agree that, in
making such determination of value, the Calculation Agent may take into account a number of
factors, including the market price of the Shares or Alternative Delivery Property on the date of
early termination and the prices at which GS&Co. purchases Shares or Alternative Delivery Property
to fulfill its delivery obligations under this Section 13); provided that in determining the
composition of any Alternative Delivery Unit, if the relevant Merger Event 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; provided, further, that GS&Co. will use good faith efforts to
effect any purchases of such Shares or Alternative Delivery Property it is so obligated to deliver
to Counterparty that are made after the receipt by GS&Co. of the relevant notice of Counterparty’s
election to receive Shares or Alternative Delivery Property in accordance with this paragraph in
accordance with Rule 10b-18(b)(2), (3) and (4), and effect calculations in respect thereof, as if
those sections applied to GS&Co., taking into account any Securities and Exchange Commission
no-action letters as appropriate and subject to any delays between the execution and reporting of a
trade of the Shares on the Exchange and other circumstances beyond its control (the period during
which such purchases are made, the “Relevant Period”). On the day Counterparty elects to receive
Shares or Alternative Delivery Property in accordance with this paragraph, Counterparty shall be
deemed to represent to GS&Co. as of such day that neither Counterparty nor any officer, director,
manager or similar person of Counterparty is aware of any material non-public information regarding
Counterparty or the Shares.



14.      Payment Date upon Early Termination. Notwithstanding anything to the contrary in
Section 6(d)(ii) of the Agreement, all amounts calculated as being due in respect of an Early
Termination Date under Section 6(e) of the Agreement will be payable on the day that notice of the
amount payable is effective; provided that if Counterparty
elects to receive Shares or Alternative Delivery Property in accordance with Section 13, such
Shares or Alternative Delivery Property shall be delivered on a date selected by GS&Co. as promptly
as practicable (taking into consideration GS&Co.’s obligations hereunder, including without
limitation, its obligations under the second proviso to Section 13 above).



15.      Special Provisions for Counterparty Payments. The parties hereby agree that,
notwithstanding anything to the contrary herein or in the Agreement, in the event that an Early
Termination Date (whether as a result of an Event of Default or a Termination Event) occurs or is
designated with respect to any Transaction and, as a result, Counterparty owes to GS&Co. an amount
calculated under Section 6(e) of the Agreement (calculated as if the Transactions being terminated
on such Early Termination Date were the sole Transactions under the Agreement), such amount shall
instead be zero. It is understood and agreed that once Buyer has paid the Prepayment Amount for any
Transaction, it has no further obligations to deliver cash or securities upon the settlement of
such Transaction or under Section 6(e) of the Agreement in respect of such Transaction.



16.      Claim in Bankruptcy. GS&Co. agrees that in the event of the bankruptcy of
Counterparty, GS&Co. shall not have rights or assert a claim that is senior in priority to the
rights and claims available to the shareholders of the common stock of Counterparty.




12









 







17.      Governing Law. The Agreement, this Master Confirmation, each Supplemental
Confirmation, each Trade Notification and all matters arising in connection with the Agreement,
this Master Confirmation, each Supplemental Confirmation and each Trade Notification shall be
governed by, and construed and enforced in accordance with, the laws of the State of New York
(without reference to its choice of laws doctrine).



18.       Offices.




          (a) The Office of GS&Co. for each Transaction is: One New York Plaza, New York, New York
10004.




          (b) The Office of Counterparty for each Transaction is: 800 Nicollet Mall, Suite 800
Minneapolis, Minnesota 55402.



19.      Arbitration. The Agreement, this Master Confirmation, each Supplemental Confirmation
and each Trade Notification are subject to the following arbitration provisions:




          (a) All parties to this Confirmation are giving up the right to sue each other in court,
including the right to a trial by jury, except as provided by the rules of the arbitration forum in
which a claim is filed.




          (b) Arbitration awards are generally final and binding; a party’s ability to have a court
reverse or modify an arbitration award is very limited.




          (c) The ability of the parties to obtain documents, witness statements and other discovery is
generally more limited in arbitration than in court proceedings.




          (d) The arbitrators do not have to explain the reason(s) for their award.




          (e) The panel of arbitrators will typically include a minority of arbitrators who were or are
affiliated with the securities industry, unless Counterparty is a member of the organization
sponsoring the arbitration facility, in which case all arbitrators may be affiliated with the
securities industry.




          (f) The rules of some arbitration forums may impose time limits for bringing a claim in
arbitration. In some cases, a claim that is ineligible for arbitration may be brought in court.




          (g) The rules of the arbitration forum in which the claim is filed, and any amendments
thereto, shall be incorporated into this Confirmation.




          Counterparty agrees that any and all controversies that may arise between Counterparty and
GS&Co., including, but not limited to, those arising out of or relating to the Agreement or any
Transaction hereunder, shall be determined by arbitration conducted before The New York Stock
Exchange, Inc. (“NYSE”) or NASD Dispute Resolution (“NASD-DR”), or, if the NYSE and NASD-DR decline
to hear the matter, before the American Arbitration Association, in accordance with their
arbitration rules then in force. The award of the arbitrator shall be final, and judgment upon the
award rendered may be entered in any court, state or federal, having jurisdiction.




13









 





EXHIBIT 10.1



20.      Counterparts. This Master Confirmation may be executed in any number of counterparts,
all of which shall constitute one and the same instrument, and any party hereto may execute this
Master Confirmation by signing and delivering one or more counterparts.



21.      Counterparty hereby agrees (a) to check this Master Confirmation carefully and immediately upon
receipt so that errors or discrepancies can be promptly identified and rectified and (b) to confirm
that the foregoing (in the exact form provided by GS&Co.) correctly sets forth the terms of the
agreement between GS&Co. and Counterparty with respect to any particular Transaction to which this
Master Confirmation relates, by manually signing this Master Confirmation or this page hereof as
evidence of agreement to such terms and providing the other information requested herein and
immediately returning an executed copy to Equity Derivatives Documentation Department, Facsimile
No. 212-428-1980/83.




	 	 	 	 	 	 	 
	 	 	Yours
faithfully,


GOLDMAN, SACHS & CO.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Conrad Langenegger
 

          Authorized Signatory
	 	 






Agreed and Accepted By:




PIPER JAFFRAY COMPANIES




	 	 	 	 	 
	By:

	 	/s/ Thomas P. Schnettler
 

Name: Thomas P. Schnettler
	 	 
	 

	 	Title: Vice Chairman and Chief Financial Officer	 	 






 









 





SCHEDULE A




SUPPLEMENTAL CONFIRMATION




	 	 	 
	 

	 	Piper Jaffray Companies
	To:

	 	800 Nicollet Mall, Suite 800
	 

	 	Minneapolis, MN 55402
	 
	 	 
	From:

	 	Goldman, Sachs & Co.
	 
	 	 
	Subject:

	 	Accelerated Stock Buyback
	 
	 	 
	Ref. No:

	 	[Insert Reference No.]
	 
	 	 
	Date:

	 	August 16, 2006






          The purpose of this Supplemental Confirmation is to confirm the terms and conditions of the
Transaction entered into between Goldman, Sachs & Co. (“GS&Co.”) and Piper Jaffray Companies
(“Counterparty”) (together, the “Contracting Parties”) on the Trade Date specified below. This
Supplemental Confirmation is a binding contract between GS&Co. and Counterparty as of the relevant
Trade Date for the Transaction referenced below.



1.      This Supplemental Confirmation supplements, forms part of, and is subject to the Master
Confirmation dated as of August 16, 2006 (the “Master Confirmation”) between the Contracting
Parties, as amended and supplemented from time to time. All provisions contained in the Master
Confirmation govern this Supplemental Confirmation except as expressly modified below.



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




	 	 	 
	Trade Date:

	 	August 16, 2006
	 
	 	 
	Hedge Completion Date:

	 	As set forth in the Trade Notification,
but in no event later than
September 8, 2006
	 
	 	 
	Termination Date:

	 	The date that follows the Hedge
Completion Date by four months, subject
to GS&Co.’s right to accelerate the
Termination Date to any date on or after
the First Acceleration Date.
	 
	 	 
	First Acceleration Date:

	 	As set forth in the Trade Notification to
be the date that follows the Hedge
Completion Date by one month.
	 
	 	 
	Prepayment Amount:

	 	USD100,000,000.00
	 
	 	 
	Minimum Shares:

	 	A number of shares equal to (a) the
Prepayment Amount divided by (b) 110.00%
of the Hedge Period Reference Price.
	 
	 	 
	Maximum Shares:

	 	A number of shares equal to (a) the
Prepayment Amount divided by (b) 91.50%
of the Hedge Period Reference Price.
	 
	 	 
	Forward Price Adjustment Amount:

	 	2.10% of the Hedge Period Reference Price
	 
	 	 
	Ordinary Dividend Amount:

	 	For any calendar quarter, USD0.00






 









 





3.      Counterparty represents and warrants to GS&Co. that neither it nor any “affiliated purchaser”
(as defined in Rule 10b-18 under the Exchange Act) has made any purchases of blocks pursuant to the
proviso in Rule 10b-18(b)(4) under the Exchange Act during the four full calendar weeks immediately
preceding the Trade Date.



4.      This Supplemental Confirmation may be executed in any number of counterparts, all of which shall
constitute one and the same instrument, and any party hereto may execute this Supplemental
Confirmation by signing and delivering one or more counterparts.




     Counterparty hereby agrees (a) to check this Supplemental Confirmation carefully and
immediately upon receipt so that errors or discrepancies can be promptly identified and rectified
and (b) to confirm that the foregoing (in the exact form provided by GS&Co.) correctly sets forth
the terms of the agreement between GS&Co. and Counterparty with respect to this Transaction, by
manually signing this Supplemental Confirmation or this page hereof as evidence of agreement to
such terms and providing the other information requested herein and immediately returning an
executed copy to Equity Derivatives Documentation Department, facsimile No. 212-428-1980/83.



	 	 	 	 	 	 	 
	 	 	Yours sincerely,


GOLDMAN, SACHS & CO.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Conrad Langenegger
 

          Authorized Signatory
	 	 






Agreed and Accepted By:




PIPER JAFFRAY COMPANIES




	 	 	 	 	 
	By:

	 	/s/ Thomas P. Schnettler
 

	 	 
	Name: Thomas P. Schnettler

Title: Vice Chairman and Chief Financial Officer	 	 






 









 






SCHEDULE B




TRADE NOTIFICATION




	 	 	 
	 

	 	Piper Jaffray Companies
	To:

	 	800 Nicollet Mall, Suite 800
	 

	 	Minneapolis, MN 55402
	 
	 	 
	From:

	 	Goldman, Sachs & Co.
	 
	 	 
	Subject:

	 	Accelerated Stock Buyback
	 
	 	 
	Ref. No:

	 	[Insert Reference No.]
	 
	 	 
	Date:

	 	September 1, 2006






          The purpose of this Trade Notification is to notify you of certain terms in the Transaction
entered into between Goldman, Sachs & Co. (“GS&Co.”) and Piper Jaffray Companies (“Counterparty”)
(together, the “Contracting Parties”) on the Trade Date specified below.




          This Trade Notification supplements, forms part of, and is subject to the Supplemental
Confirmation dated as of August 16, 2006 (the “Supplemental Confirmation”) between the Contracting
Parties, as amended and supplemented from time to time. The Supplemental Confirmation is subject
to the Master Confirmation dated as of August 16, 2006 (the “Master Confirmation”) between the
Contracting Parties, as amended and supplemented from time to time. All provisions contained in
the Master Confirmation and the Supplemental Confirmation govern this Trade Notification except as
expressly modified below.




	 	 	 
	Trade Date:

	 	August 16, 2006
	 
	 	 
	Hedge Completion Date:

	 	September 1, 2006
	 
	 	 
	Termination Date:

	 	January 2, 2007, subject to GS&Co.’s
right to accelerate the Termination Date
to any date on or after the First
Acceleration Date.
	 
	 	 
	First Acceleration Date:

	 	October 2, 2006, or, if such date is not
an Exchange Business Day, the next
following Exchange Business Day.
	 
	 	 
	Forward Price Adjustment Amount:

	 	USD $1.17
	 
	 	 
	Minimum Shares:

	 	1,635,035
	 
	 	 
	Maximum Shares:

	 	1,965,615






	 	 	 	 	 
	 	Yours sincerely,



GOLDMAN, SACHS & CO.

 	 
	 	By:  	/s/ Conrad Langenegger
 	 
	 	 	Authorized Signatory