Exhibit 10.1


 





Confirmation
of Forward Stock Sale Transaction


 


October 13, 2004


 


	
  To:

  	
  Affiliated
  Managers Group, Inc. (“Counterparty” or “Party B”)

  
	
   

  	
  600 Hale
  Street

  
	
   

  	
  Prides
  Crossing, MA 01965

  
	
   

  	
   

  
	
  From:

  	
  Merrill
  Lynch International (“MLI” or “Party A”)

  
	
   

  	
  Merrill
  Lynch Financial Centre

  
	
   

  	
  2 King
  Edward Street

  
	
   

  	
  London,
  England

  
	
   

  	
  EC1A 1HQ

  
	
   

  	
   

  
	
  From:

  	
  Merrill
  Lynch, Pierce, Fenner & Smith Incorporated,

  Solely as Agent

  
	
   

  	
  tel: (212)
  449-3149

  
	
   

  	
  fax: (212)
  449-2697

  



 


Dear Sirs,


 


The purpose of this letter
agreement (this “Confirmation”) is to confirm the terms and conditions of the
transaction entered into between us on the Trade Date specified below (the “Transaction”).
This Confirmation constitutes a “Confirmation” as referred to in the ISDA
Master Agreement specified below.


 


1.                                       The
definitions and provisions contained in the 2000 ISDA Definitions (the “2000
Definitions”) and the 2002 ISDA Equity Derivatives Definitions (the “2002
Definitions” and, together with the 2000 Definitions, the “Definitions”), each
as published by the International Swaps and Derivatives Association, Inc., are
incorporated into this Confirmation. In the event of any inconsistency between
the 2002 Definitions and the 2000 Definitions, the 2002 Definitions will
govern. In the event of any inconsistency between the Definitions and this
Confirmation, this Confirmation will govern.


 


This
Confirmation evidences a complete and binding agreement between Party A and
Party B as to the terms of the Transaction to which this Confirmation relates.
This Confirmation shall supplement, form a part of, and be subject to an
agreement in the form of the 2002 ISDA Master Agreement (the “Agreement”) as if
Party A and Party B had


 


1





















 


executed an
agreement in such form (but without any Schedule except for the election of (i)
the laws of the State of New York as the governing law and (ii) United States
dollars as the Termination Currency on the Trade Date). 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 no Transaction other than
the Transaction to which this Confirmation relates shall be governed by the
Agreement.


 


Party A and
Party B each represents to the other that it has entered into this Transaction
in reliance upon such tax, accounting, regulatory, legal, and financial advice
as it deems necessary and not upon any view expressed by the other.


 


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


 


General Terms:


 


	
  Trade Date:

  	
   

  	
  October 13,
  2004

  
	
   

  	
   

  	
   

  
	
  Effective
  Date:

  	
   

  	
  October 18,
  2004

  
	
   

  	
   

  	
   

  
	
  Base Amount:

  	
   

  	
  Initially,
  1,885,726 Shares. On each Settlement Date, the Base Amount shall be reduced
  by the number of Settlement Shares for such Settlement Date.

  
	
   

  	
   

  	
   

  
	
  Maturity
  Date:

  	
   

  	
  October 18,
  2005 (or, if such date is not a Scheduled Trading Day, the next following
  Scheduled Trading Day); subject to extension if a Settlement Date on such
  date is deferred as provided below in clause (i) of the proviso to the
  definition of Settlement Date; provided that
  if the Maturity Date is a Disrupted Day, then the Maturity Date shall be the
  first succeeding Scheduled Trading Day that is not a Disrupted Day. For the
  avoidance of doubt, if on the Maturity Date the Base Amount is zero, then
  such date will not constitute a Settlement Date and neither party will have a
  payment or delivery obligation resulting from the occurrence of the Maturity
  Date.

  
	
   

  	
   

  	
   

  
	
  Forward
  Price:

  	
   

  	
  On the
  Effective Date, the Initial Forward Price, and on any other day, the Forward
  Price as of the 

  



 


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  immediately
  preceding calendar day multiplied by the sum of (i) 1 plus
  (ii) the Daily Rate for such day.

  
	
   

  	
   

  	
   

  
	
  Initial
  Forward Price:

  	
   

  	
  USD $53.03
  per Share.

  
	
   

  	
   

  	
   

  
	
  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 on any day on such page, the rate for the immediately preceding day
  on which a rate appears shall be used for such day.

  
	
   

  	
   

  	
   

  
	
  Spread:

  	
   

  	
  0.95%

  
	
   

  	
   

  	
   

  
	
  Shares:

  	
   

  	
  Common
  Stock, $0.01 par value per share, of Affiliated Managers Group, Inc. (the
  “Issuer”) (Exchange identifier: “AMG”).

  
	
   

  	
   

  	
   

  
	
  Exchange:

  	
   

  	
  New York
  Stock Exchange.

  
	
   

  	
   

  	
   

  
	
  Related
  Exchange(s):

  	
   

  	
  All.

  
	
   

  	
   

  	
   

  
	
  Clearance
  System:

  	
   

  	
  DTC.

  
	
   

  	
   

  	
   

  
	
  Calculation
  Agent:

  	
   

  	
  MLI.

  



 


Settlement Terms:


 


	
  Settlement
  Date:

  	
   

  	
  Any
  Scheduled Trading Day following the Effective Date and up to and including
  the Maturity Date, as designated by Party B in a written notice (a
  “Settlement Notice”) which satisfies the Settlement Notice Requirements and
  which is delivered to Party A at least (a) 1 Scheduled Trading Days prior to
  such Settlement Date and at least five Scheduled Trading Days prior to the
  Maturity Date, if Physical Settlement applies, and (b) five Scheduled Trading
  Days prior to such Settlement Date, which may be 

  



 


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  the Maturity
  Date, if Cash Settlement or Net Stock Settlement applies; provided that (i) if Cash Settlement or Net Stock
  Settlement applies, any Settlement Date, including a Settlement Date on the
  scheduled Maturity Date, shall be deferred until the date on which Party A is
  able to completely unwind its hedge with respect to the portion of the Base
  Amount to be settled if Party A is unable to completely unwind its hedge with
  respect to the portion of the Base Amount to be settled during the Unwind
  Period due to the restrictions of Rule 10b-18 under 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 and (ii)
  no more than three Settlement Dates other than the Maturity Date may be
  designated by Party B; provided further
  that if Party A shall fully unwind its hedge with respect to the portion of
  the Base Amount 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,
  Party A may, by written notice to Party B, specify any Scheduled Trading Day
  prior to such original Settlement Date as the Settlement Date; provided further that if any Settlement Date specified
  above is not an Exchange Business Day, the Settlement Date shall instead be
  the next Exchange Business Day.

  
	
   

  	
   

  	
   

  
	
  Early
  Termination Settlement:

  	
   

  	
  During the
  term of the Transaction, Party B may designate a date prior to the Maturity
  Date upon which the Transaction will terminate as described herein. Such
  designation will be made by providing Party A with at least 1 Scheduled
  Trading Days prior written notice of the Scheduled Trading Day on which a
  number of Settlement Shares equal in amount to the Base Amount on such date
  will be settled if Physical Settlement applies, or five Scheduled Trading
  Days prior written notice of the Scheduled Trading Day prior to the Maturity
  Date on which a number of Settlement Shares equal in amount to the Base
  Amount on such date will be settled if Net Stock or Cash Settlement applies,

  



 


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  unless both
  parties mutually agree otherwise; provided that
  (i) if Cash Settlement or Net Stock Settlement applies, any Settlement Date
  shall be deferred until the date on which Party A is able to completely unwind
  its hedge with respect to the portion of the Base Amount to be settled if
  Party A is unable to completely unwind its hedge with respect to the portion
  of the Base Amount to be settled during the Unwind Period due to the
  restrictions of Rule 10b-18 under 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; provided
  further that if any Settlement Date specified above is not an
  Exchange Business Day, the Settlement Date shall instead be the next Exchange
  Business Day.

  
	
   

  	
   

  	
   

  
	
  Settlement
  Shares:

  	
   

  	
  With respect
  to any Settlement Date, a number of Shares, not to exceed the Base Amount,
  designated as such by Party B in the related Settlement Notice; provided that, on the Maturity Date the number of
  Settlement Shares shall be equal to the Base Amount on such date; provided further that if a Settlement Date has been
  specified for a number of Shares equal to the Base Amount prior to the
  Maturity Date and such Settlement Date has been deferred as described above
  until a date later than the Maturity Date, the number of Settlement Shares on
  the Maturity Date shall be zero.

  
	
   

  	
   

  	
   

  
	
  Settlement:

  	
   

  	
  Physical,
  Cash, or Net Stock, at the election of Party B as set forth in a Settlement
  Notice; provided that if no election is made
  by Party B, Physical Settlement shall apply. The parties hereto acknowledge
  that Party B cannot be obligated to settle this Transaction by cash payment
  unless Party B elects Cash Settlement.

  
	
   

  	
   

  	
   

  
	
  Unwind
  Period:

  	
   

  	
  The period
  from and including the first Exchange Business Day following the date Party B
  elects Cash Settlement or Net Stock Settlement in respect of a Settlement
  Date through the third Scheduled 

  



 


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  Trading Day
  preceding such Settlement Date (as such date may be changed by Party A as
  described in the second proviso to the definition of Settlement Date above); provided further that if an Acceleration Event occurs
  during an Unwind Period, the Acceleration Event provisions shall apply with
  respect to the number of Settlement Shares to be subject to Termination
  Settlement following such Acceleration Event, and if after application of the
  Acceleration Event provisions there are no more Settlement Shares with
  respect to such Unwind Period for which Party A has not yet unwound its
  hedge, such Unwind Period shall terminate and the Settlement Date for the
  number of Shares as to which Party A has unwound its hedge shall occur on the
  applicable Termination Settlement Date.

  
	
   

  	
   

  	
   

  
	
  Unwind Daily
  Share

  	
   

  	
   

  
	
  Amount:

  	
   

  	
  On each
  Exchange Business Day during the Unwind Period, other than a Suspension Day
  or a Disrupted Day, Party A will, in accordance with the principles of best
  execution, purchase a number of Shares equal to the lesser of (i) 100%
  of the volume limitation of Rule 10b-18 for the Shares on such Exchange
  Business Day calculated as if Rule 10b-18 applied to such purchase, without
  reference to any block purchases, (ii)  25% of the daily trading volume
  for the Shares on the Exchange on such Exchange Business Day, or (iii) the
  number of Shares necessary to complete the purchases required to calculate
  the Cash Settlement Amount or the Net Stock Settlement Shares, as the case
  may be, if an Early Termination Date has occurred.

  
	
   

  	
   

  	
   

  
	
  Exchange
  Act:

  	
   

  	
  The
  Securities Exchange Act of 1934, as amended from time to time.

  
	
   

  	
   

  	
   

  
	
  Physical
  Settlement:

  	
   

  	
  On any
  Settlement Date in respect of which Physical Settlement applies, Party B
  shall deliver to Party A a number of Shares equal to the Settlement Shares
  for such Settlement Date, and Party A shall deliver to Party B, by wire
  transfer of immediately 

  



 


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  available
  funds to an account designated by Party B, an amount in cash equal to the
  Physical Settlement Amount for such Settlement Date, on a delivery versus
  payment basis.

  
	
   

  	
   

  	
   

  
	
  Physical
  Settlement Amount:

  	
   

  	
  For any
  Settlement Date in respect of which Physical Settlement applies, an amount in
  cash equal to the product of the Forward Price on such Settlement Date and
  the number of 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, Party A will pay the Cash Settlement
  Amount to Party B. If the Cash Settlement Amount is a negative number, Party
  B will pay the absolute value of the Cash Settlement Amount to Party A. Such
  amounts shall be paid on the 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 at which Party A is able to purchase Shares during
  the Unwind Period to unwind its hedge with respect to the portion of the Base
  Amount to be settled taking into account Shares anticipated to be delivered
  or received if Net Stock Settlement applies, in compliance with the timing
  and volume restrictions of Rule 10b-18 under the Exchange Act during the
  Unwind Period, plus $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, Party A shall deliver a number of
  Shares to Party B equal to the Net Stock Settlement Shares, and (ii) negative
  number, Party B shall deliver a number of Shares to Party A equal to the Net
  Stock Settlement Shares; provided that
  if Party A determines in its good faith judgment that it would be required to
  deliver Net Stock Settlement Shares to Party B, Party A may

  



 


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  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 weighted average price at which Party A is able to purchase
  Shares during the Unwind Period to unwind its hedge with respect to the
  portion of the Base Amount to be settled during the Unwind Period, with the
  number of Shares rounded up in the event such calculation results in a
  fractional number.

  
	
   

  	
   

  	
   

  
	
  Settlement
  Currency:

  	
   

  	
  USD.

  
	
   

  	
   

  	
   

  
	
  Failure to
  Deliver:

  	
   

  	
  Applicable.

  



 


	
  Suspension
  of Cash or Net

  Stock Settlement:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Suspension Day:

  	
   

  	
  Any day on
  which Party A determines based on the advice of counsel that Cash or Net
  Stock Settlement may violate applicable securities laws. Party A shall notify
  Party B if it receives such advice from its counsel.

  
	
   

  	
   

  	
   

  
	
  Adjustments:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Method of
  Adjustment:

  	
   

  	
  Calculation
  Agent Adjustment.

  
	
   

  	
   

  	
   

  
	
  Account
  Details:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Payments to
  Party A:

  	
   

  	
  To be
  advised under separate cover or telephone confirmed prior to each Settlement
  Date.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Payments to
  Party B:

  	
   

  	
  To be
  advised under separate cover or telephone confirmed prior to each Settlement
  Date.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Delivery of
  Shares to Party A:

  	
   

  	
  To be
  advised.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Delivery of
  Shares to Party B:

  	
   

  	
  To be
  advised.

  



 


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3.             Other Provisions:


 


Conditions to Effectiveness:


 


The
effectiveness of this Confirmation on the Effective Date shall be subject to
(i) the condition that the representations and warranties of Party B contained
in the Pricing Agreement dated the date hereof among Party B, MLI and Merrill
Lynch, Pierce, Fenner & Smith Incorporated (the “Pricing Agreement”) and
any certificate delivered pursuant thereto by Party B be true and correct on
the Effective Date as if made as of the Effective Date, (ii) the condition that
Party B have performed all of the obligations required to be performed by it
under the Pricing Agreement on or prior to the Effective Date, and (iii) the
satisfaction of all of the conditions set forth in Section 4 of the Pricing Agreement.


 


Additional Representations, Warranties and Agreements of Party B:
Party B hereby represents and warrants to, and agrees with, Party A as of the
date hereof that:


 


(a)          Any
Shares, when issued and delivered in accordance with the terms of the Transaction,
will be duly authorized and validly issued, fully paid and nonassessable, and
the issuance thereof will not be subject to any preemptive or similar rights.


 


(b)         Party
B has reserved and will keep available, free from preemptive rights, out of its
authorized but unissued Shares, solely for the purpose of issuance upon
settlement of the Transaction as herein provided, the full number of Shares as
shall then be issuable upon settlement of the Transaction. All Shares so
issuable shall, upon such issuance, be accepted for listing or quotation on the
Exchange.


 


(c)          Prior
to any Settlement Date, the Settlement Shares with respect to that Settlement
Date shall have been approved for listing on the Exchange, subject to official
notice of issuance, and such Settlement Shares shall have been registered under
the Exchange Act.


 


(d)         The
execution, delivery and performance by Party B of this Confirmation and the
consummation of the Transaction as herein contemplated, including the issuance
of any Shares pursuant to Net Stock Settlement, will not result in the
violation of any law or statute or any judgment, order, rule or regulation of
any court or arbitrator or governmental or regulatory authority.


 


(e)          No
filing with, or approval, authorization, consent, license registration,
qualification, order or decree of, any court or governmental authority or
agency, domestic or foreign, is necessary or required for the execution,
delivery and


 


9





















 


performance by Party B of this Confirmation and the consummation of the
Transaction (including, without limitation, the issuance and delivery of Shares
on any Settlement Date) except (i) such as have been obtained under the
Securities Act, (ii) as may be required to be obtained under state securities
laws.


 


(f)            Party
B agrees not to repurchase any Shares if, immediately following such
repurchase, the Base Amount would be equal to or greater than 8.5% of the
number of then-outstanding Shares.


 


(g)         Party
B agrees to provide notice to Party A at least 20 Business Days prior to the
declaration of any distribution, issue or dividend consisting of cash to
existing holders of the Shares with a record date on or prior to the final
Settlement Date under this Confirmation.


 


(h)         Party
B is not insolvent, nor will Party B be rendered insolvent as a result of this
Transaction.


 


(i)             Neither
Party B nor any of its affiliates shall take any action that would cause any
purchases of Shares by Party A or its affiliates in connection with any Cash
Settlement or Net Stock Settlement of this Transaction not to comply with Rule
10b-18 under the Exchange Act as if such rule applied to this Transaction.


 


(j)             Party
B is an “eligible contract participant” (as such term is defined in Section
1(a)(12) of the Commodity Exchange Act, as amended).


 


(k)          In
addition to any other requirements set forth herein, Party B agrees not to
elect Cash Settlement or Net Stock Settlement if such settlement would result
in a violation of the U.S. federal securities laws, including any claim based
on the nondisclosure of material nonpublic information concerning itself or the
Shares, or any other federal or state law or regulation applicable to Party B.


 


Covenant of Party B:


 


(a)          The
parties acknowledge and agree that any Shares delivered by Party B to Party A
on any Settlement Date and delivered by Party A (or an affiliate of Party A) to
securities lenders from whom Party A (or an affiliate of Party A) borrowed
Shares in connection with hedging its exposure to the Transaction will be freely
saleable without further registration or other restrictions under the
Securities Act of 1933, as amended, in the hands of those securities lenders,
irrespective of whether such stock loan is effected by Party A or an affiliate
of Party A to hedge Party A’s exposure under the Transaction. Accordingly,
Party B agrees that the Settlement Shares that it delivers to Party A on each
Settlement Date will not bear a restrictive legend and that such


 


10





















 


Settlement Shares will be deposited in, and the delivery thereof shall
be effected through the facilities of, the Clearance System.


 


(b)         Party
B further agrees that no filing with, or approval, authorization, consent,
license, registration, qualification, order or decree of, any court or
governmental authority or agency in will be necessary or required for the
issuance and delivery by Party B of the Settlement Shares or for the
performance by Party B of any other transactions contemplated by this
Confirmation, except as may be required to be obtained under applicable Blue
Sky laws.


 


Covenants of Party A:


 


(a)          Party
A shall use any Shares delivered by Party B to Party A on any Settlement Date
to return to securities lenders to close out any open loans with respect to
Shares.


 


(b)   In connection with bids and
purchases of Shares in connection with any Cash Settlement or Net Stock
Settlement of this Transaction, Party A shall use its best 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. For the avoidance of
doubt, the foregoing covenant shall not apply with respect to any Termination
Settlement.


 


Acceleration Events: An Acceleration Event
shall occur if:


 


(a)          Stock
Borrow Events. Notwithstanding any other provision hereof, if, in its good
faith judgment Party A is unable to hedge Party A’s exposure to the Transaction
(a “Stock Borrow Event”) because (i) of the lack of sufficient Shares being
made available for Share borrowing by lenders, or (ii) it is otherwise
commercially impracticable because sufficient Shares cannot be borrowed at a
rate less than 60 basis points and Party B has not agreed to an increase in the
Spread equal to the amount such borrow rate exceeds 60 basis points, then Party
A shall have the right to designate any Exchange Business Day to be a Early
Termination Date on at least two Exchange Business Days’ notice, and to select
the number of Settlement Shares for such Early Termination Date; provided that
the number of Settlement Shares for any Early Termination Date so designated by
Party A shall not exceed the number of Shares as to which such inability
exists, and provided further that Physical Settlement shall apply unless Party
A, at the request of Party B, agrees that a Cash Settlement or Net Stock
Settlement is commercially reasonable.


 


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(b)         Share
Price. Notwithstanding any other provision hereof, if the closing sale
price per Share on the Exchange for the regular trading session on any Exchange
Business Day occurring after the Trade Date is less than or equal to $8.00
(adjusted for any stock splits, stock dividends and other similar events),
Party A shall have the right to designate any Exchange Business Day to be an
Early Termination Date on at least ten Exchange Business Days’ notice, and to
select the number of Settlement Shares for such Early Termination Date. Upon
the designation of such Early Termination Date, Party B shall promptly notify
Party A of the settlement method, provided that if Party B fails to do so,
Physical Settlement shall apply.


 


(c)          Dividends
and Other Distributions. Notwithstanding any other provision hereof, but
subject to clause (a) hereof, if on any day occurring after the Trade Date
Party B declares a distribution, issue or dividend to existing holders of the
Shares of (i) cash or (ii) securities or share capital of another issuer
acquired or owned (directly or indirectly) by Party B as a result of a spin-off
or other similar transaction or (iii) any other type of securities (other than
Shares, which may constitute a Potential Adjustment Event), rights or warrants
or other assets, in any case for payment (cash or other consideration) at less
than the prevailing market price as reasonably determined by Party A, then
Party A shall have the right to designate any Scheduled Trading Day to be a
Settlement Date for the entire Transaction on at least three Scheduled Trading
Day’s notice; or


 


(d)         Merger
Event. Notwithstanding any other provision hereof, if on any day occurring
after the Trade Date Party B notifies Party A of an impending Merger Event (as
defined in the 2002 Definitions), then Party A shall have the right, on and
after the twentieth Exchange Business Day prior to the scheduled date of
consummation of such Merger Event, to designate any Scheduled Trading Day to be
a Settlement Date for Physical Settlement of the entire Transaction on at least
three Scheduled Trading Day’s notice. Party B shall notify Party A of an
impending Merger Event and the scheduled date of consummation thereof, not
later than 20 Exchange Business Days prior to such scheduled date of
consummation; or


 


(e)          ISDA
Early Termination Date. Notwithstanding anything to the contrary herein, in
the Agreement or in the Definitions, if either Party A or Party B has the right
to designate an Early Termination Date pursuant to Section 6 of the Agreement,
such party shall have the right to designate any Scheduled Trading Day to be a
Settlement Date for the entire Transaction on at least three Scheduled Trading
Days’ notice. Upon the designation of such Settlement Date, Party B shall
promptly notify Party A of the settlement method, provided
that if Party B fails to do so, Physical Settlement shall apply; or


 


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(f)            Other
ISDA Events. Notwithstanding anything to the contrary herein, in the
Agreement or in the Definitions, if a Nationalization, Insolvency, Insolvency
Filing, Delisting or Change in Law occurs, Party A shall have the right to
designate any Scheduled Trading Day to be a Settlement Date for the entire
Transaction on at least three Scheduled Trading Days’ notice, and Party A shall
be the Determining Party. Upon the designation of such Settlement Date, Party B
shall promptly notify Party A of the settlement method, provided
that if Party B fails to do so, Physical Settlement shall apply.


 


Termination Settlement:


 


If a Settlement Date is specified following an Acceleration Event (a “Termination
Settlement Date”), Physical Settlement shall apply with respect to such
Termination Settlement Date; provided, however, that at the request of Party B,
Party A shall use reasonable efforts to accommodate Cash or Net Stock
Settlement.


 


Notwithstanding anything to the contrary herein, in the Agreement or in
the Definitions, at least one Scheduled Trading Day prior to any Termination
Settlement Date, Party A shall notify Party B in writing of the number of
Shares (the “Termination Share Amount”) deliverable on such Termination Settlement
Date and whether such amount is payable or deliverable by Party A or Party B. On
any Termination Settlement Date, the applicable party shall deliver a number of
Shares equal to the Termination Share Amount to the other party.


 


Notwithstanding anything to the contrary herein, in the Agreement or in
the Definitions, Party A shall determine the Termination Share Amount in its
reasonable discretion based on its estimate of the net economic equivalent to
both Party A and Party B if the Transaction had been subject to Physical
Settlement in accordance with the terms of this Confirmation; provided that Party A may consider in determining the
Termination Share Amount its good faith estimate of any losses or costs it may
incur in connection with terminating, liquidating or unwinding its hedge with
respect to the Transaction; provided further
that in determining the Termination Share Amount, Party A may consider whether
any Shares to be delivered by Party B would be freely tradeable.


 


If Party B delivers any Shares pursuant to this provision that may not
be immediately freely transferred by Party A (or an affiliate of Party A) to
its securities lenders upon delivery thereof to Party A (or such affiliate of
Party A) under applicable securities law, Party B agrees that (i) such Shares
may be transferred by and among Merrill Lynch & Co., Inc. and its
affiliates and (ii) after the minimum “holding period” within the meaning of
Rule 144(d) under the Securities Act has elapsed after the applicable
Settlement Date, Party B shall


 


13





















 


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 Party A (or such affiliate of Party A) to Party B or such transfer
agent of seller’s and broker’s representation letters customarily delivered by
Party A 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 Party A (or such affiliate of Party A).


 


Maximum Share Delivery:


 


Notwithstanding
any other provision of this Confirmation, in no event will Party B be required
to deliver on any Settlement Date, whether pursuant to Physical Settlement, Net
Stock Settlement or Termination Settlement, more than 1,885,726 Shares to Party
A, subject to reduction by the amount of any Shares delivered by Party B on any
prior Settlement Date.


 


Market Disruption Event:


 


Section 6.3(a)
of the 2002 Definitions is amended by deleting the words “at any time during
the one hour period that ends at the relevant Valuation Time, Latest Exercise
Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be,”.


 


Assignment:


 


Party A may assign or transfer any of its rights or delegate any of its
duties hereunder to any affiliate of Party A or any entity organized or
sponsored by Party A without the prior written consent of Party B; provided, however, that such assignee’s obligations shall
be guaranteed by Merrill Lynch & Co., Inc. in accordance with this
Confirmation. Notwithstanding any other provision of this Confirmation to the
contrary requiring or allowing Party A to purchase or receive any Shares from
Party B, Party A may designate any of its affiliates to purchase or receive
such Shares or otherwise to perform Party A’s obligations in respect of this
Transaction and any such designee may assume such obligations, and Party A
shall be discharged of its obligations to Party B to the extent of any such
performance.


 


14





















 


Guarantee of Party A


 


Merrill Lynch & Co., Inc. shall guarantee all obligations of Party
A under this Confirmation and shall execute a Guarantee in favor of Party B
substantially in the form of Annex A hereto.


 


Matters Relating to Agent:


 


Each party agrees and acknowledges that (i) Merrill Lynch, Pierce,
Fenner & Smith Incorporated, as agent, (the “Agent”) acts solely as agent
on a disclosed basis with respect to the transactions contemplated hereunder,
and (ii) the Agent has no obligation, by guaranty, endorsement or otherwise,
with respect to the obligations of either Party B or Party A hereunder, either
with respect to the delivery of cash or Shares, either at the beginning or the
end of the transactions contemplated hereby. In this regard, each Party A and
Party B acknowledges and agrees to look solely to the other for performance
hereunder, and not to the Agent.


 


Indemnity


 


Party B agrees
to indemnify Party A and its affiliates and their respective directors,
officers, agents and controlling parties (Party A 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 Transaction, any breach of
any covenant or representation made by Party B 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 reasonable 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. Party B will not be
liable under this Indemnity paragraph to the extent that any loss, claim,
damage, liability or expense is found by a court in a final judgment that is
nonappealable as a matter of right to have resulted from Party A’s gross
negligence, willful misconduct or violation of law.


 


Miscellaneous


 


	
  Non-Reliance:

  	
  Applicable

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Additional Acknowledgements:

  	
  Applicable

  	
   

  	
   

  	
   

  	
   

  



 


15





















 


	
  Agreements and Acknowledgments

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Regarding Hedging Activities:

  	
   

  	
  Applicable. The parties acknowledge the Pricing Agreement and related
  sales of Shares described therein.

  



 


4.             The Agreement is further supplemented by the following
provisions:


 


No Collateral or Setoff:


 


Notwithstanding
Section 6(f) or any other provision of the Agreement or any other agreement
between the parties to the contrary, the obligations of Party B hereunder are not
secured by any collateral. Obligations under this Transaction shall not be set
off against any other obligations of the parties, whether arising under the
Agreement, this Confirmation, under any other agreement between the parties
hereto, by operation of law or otherwise, and no other obligations of the
parties shall be set off against obligations under this Transaction, whether
arising under the Agreement, this Confirmation, under any other agreement
between the parties hereto, by operation of law or otherwise, and each party
hereby waives any such right of setoff. In calculating any amounts under
Section 6(e) of the Agreement, notwithstanding anything to the contrary in the
Agreement, (a) separate amounts shall be calculated as set forth in such Section
6(e) with respect to (i) this Transaction and (ii) all other Transactions, and
(b) such separate amounts shall be payable pursuant to Section 6(d)(ii) of the
Agreement.


 


Status of Claims in Bankruptcy:


 


Party A acknowledges and agrees that this confirmation is not intended
to convey to Party A rights with respect to the transactions contemplated
hereby that are senior to the claims of common stockholders in any U.S.
bankruptcy proceedings of Party B; provided, however, that
nothing herein shall limit or shall be deemed to limit Party A’s right to
pursue remedies in the event of a breach by Party B 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 Party A’s rights in respect of any transaction other than
the Transaction.


 


Limit on Beneficial Ownership:


 


Notwithstanding any other provisions hereof, Party A 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 Merrill Lynch & Co., Inc.
directly or indirectly beneficially owning (as such term is defined for
purposes of Section 13(d) of the Exchange


 


16





















 


Act) at any time in excess of 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 Merrill Lynch &
Co., Inc. directly or indirectly so beneficially owning in excess of 9% of the
outstanding Shares. If any delivery owed to Party A hereunder is not made, in
whole or in part, as a result of this provision, Party B’s obligation to make such
delivery shall not be extinguished and Party B shall make such delivery as
promptly as practicable after, but in no event later than one Exchange Business
Day after, Party A gives notice to Party B that such delivery would not result
in Merrill Lynch & Co., Inc. directly or indirectly so beneficially owning
in excess of 9% of the outstanding Shares.


 


Party B Representations.


 


Party B (i)
has such knowledge and experience in financial and business affairs as to be
capable of evaluating the merits and risks of entering into this Transaction;
(ii) has consulted with its own legal, financial, accounting and tax advisors
in connection with this Transaction; and (iii) is entering into this
Transaction for a bona fide business purpose.


 


Party B is not
and has not been the subject of any civil proceeding of a judicial or
administrative body of competent jurisdiction that could reasonably be expected
to impair materially Party B’s ability to perform its obligations hereunder.


 


Party B will
by the next succeeding Business Day notify Party A upon obtaining knowledge of
the occurrence of any event that would constitute an Event of Default, a
Potential Event of Default or a Potential Adjustment Event.


 


As of the date
hereof, Party B is not insolvent.


 


Acknowledgements:


 


The parties
hereto intend for:


 


(a)          this Transaction to be a
“securities contract” as defined in Section 741(7) of Title 11 of the United
States Code (the “Bankruptcy Code”),
qualifying for the protections under Section 555 of the Bankruptcy Code;


 


(b)         a party’s right to
liquidate this Transaction and to exercise any other remedies upon the
occurrence of any Event of Default under the Agreement with respect to the
other party to constitute a “contractual right” as defined in the Bankruptcy
Code;


 


17





















 


(c)          Party A to be a “financial
institution” within the meaning of Section 101(22) of the Bankruptcy Code; and


 


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


 


5.             ISDA Master
Agreement


 


With respect to the Agreement,
Party A and Party B each agree as follows:


 


Specified
Entities:


 


(i) in
relation to Party A, for the purposes of:


 


Section 5(a)(v):                                      not
applicable


Section 5(a)(vi):            not applicable


Section 5(a)(vii):           not applicable


Section 5(b)(iv):           not applicable


 


and (ii) in
relation to Party B, for the purposes of:


 


Section 5(a)(v):             not applicable


Section 5(a)(vi):            not applicable


Section 5(a)(vii):           not applicable


Section 5(b)(iv):           not applicable


 


“Specified
Transaction” will have the meaning specified in Section 14 of
the Agreement.


 


The “Cross
Default” provisions of Section 5(a)(vi)(1) of the Agreement
will apply to Party A and to Party B; provided that the phrase “, or becoming
capable at such time of being declared,” is hereby deleted from Section
5(a)(vi)(1) of the Agreement.


18





















 


“Specified
Indebtedness” will have the meaning specified in
Section 14 of the Agreement.


 


“Threshold
Amount”  with respect
to Party A means USD 100,000,000 (or the U.S. dollar equivalent in any other
currency or currencies) and with respect to Party B means USD 50,000,000


 


The “Credit Event
Upon Merger” provisions of Section 5(b)(v) of the Agreement
will apply to Party A and to Party B.


 


The “Automatic
Early Termination” provision of Section
6(a) of the Agreement will not apply to Party A and to Party B.


 


“Termination
Currency” means USD.


 


Additional
Termination Event. The following shall constitute an
Additional Termination Event: None


 


19





















 


Tax
Representations:


 


(I)                                    For
the purpose of Section 3(e) of the Agreement, each party represents to the
other party that 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(d), 6(d)(ii), or 6(e) of
the Agreement) to be made by it to the other party under the Agreement. In
making this representation, each party may rely on (i) the accuracy of any
representations made by the other party pursuant to Section 3(f) of the
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 will 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)
of the Agreement by reason of material prejudice to its legal or commercial
position.


 


(II)                                For
the purpose of Section 3(f) of the Agreement, each party makes the following
representations to the other party:


 


(i)                         Party A represents that it is
a corporation organized under the laws of England and Wales.


 


(ii)                      Party B represents that it is a
corporation incorporated under the laws of the State of Delaware.


 


Tax Forms:
For the purpose of Sections 3(d), 4(a)(i) and (ii) of the
Agreement, each party agrees to deliver the following documents:


 


Tax forms, documents or
certificates to be delivered are:


 


Each party
agrees to complete (accurately and in a manner reasonably satisfactory to the
other party), execute, and deliver to the other party, United States Internal
Revenue Service Form W-9 or W-8 BEN, or any successor of such form(s): (i)
before the first payment date under this agreement; (ii) promptly upon
reasonable demand by the other party; and (iii) promptly upon learning
that any such form(s) previously provided by the other party has become
obsolete or incorrect.


 


20





















 


Other documents to be
delivered:


 


	
  Party Required to

  Deliver Document

  	
   

  	
  Document Required to be

  Delivered

  	
   

  	
  When Required

  	
   

  	
  Covered by

  Section 3(d)

  Representation

  
	
  Party A and Party B

  	
   

  	
  Evidence of the authority and true signatures of each official or
  representative signing this Confirmation

  	
   

  	
  Upon or before execution and delivery of this Confirmation

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Party B

  	
   

  	
  Certified copy of the resolution of the Board of Directors or
  equivalent document authorizing the Transaction

  	
   

  	
  Upon or before execution and delivery of this Confirmation

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Party A

  	
   

  	
  Guarantee of its Credit Support Provider, substantially in the form
  of Exhibit A attached hereto, together with evidence of the authority and
  true signatures of the signatories, if applicable

  	
   

  	
  Upon or before execution and delivery of this Confirmation

  	
   

  	
  Yes

  



 


Process
Agent: For the purpose of Section 13(c) of the
Agreement, Party A appoints as its process agent:


 


Merrill Lynch, Pierce, Fenner & Smith
Incorporated


222 Broadway,
16th Floor


New York, NY
10038


Attention:
Litigation Department


 


Party B does not appoint a Process Agent.


(a)          Addresses for Notices. For
the purpose of Section 12(a) of the Agreement:


 


Address for notices or communications to Party A:


 


	
  Address:

  	
   

  	
  c/o Merrill Lynch, Pierce, Fenner & Smith

  
	
   

  	
   

  	
  Incorporated

  
	
   

  	
   

  	
  Four World Financial Center

  	
   

  	
   

  
	
   

  	
   

  	
  North Tower, 5th Floor

  	
   

  	
   

  
	
   

  	
   

  	
  New York, NY 10080

  	
   

  	
   

  
	
  Attention:

  	
   

  	
  Equity-Linked Capital Markets

  
	
  Telephone
  No.:

  	
   

  	
  (212)
  449-6763

  	
   

  	
   

  
	
  Facsimile
  No.:

  	
   

  	
  (212)
  738-1069

  	
   

  	
   

  



 


21





















 


	
  Address for
  notices or communications to Party B:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  Affiliated Managers Group, Inc.

  
	
   

  	
   

  	
  600 Hale Street

  	
   

  	
   

  
	
   

  	
   

  	
  Prides
  Crossing, MA 01965

  	
   

  	
   

  
	
  Attention:

  	
   

  	
  Chief Financial Officer

  	
   

  	
   

  



 


Multibranch
Party. For the purpose of Section 10(c) of the
Agreement: Neither Party A nor Party B is a Multibranch Party.


 


Credit Support Document.


 


Party A: Guarantee of Merrill
Lynch & Co., Inc. in the form attached hereto as Exhibit A.


 


Party B: None


 


Credit
Support Provider.


 


With respect to Party A:
Merrill Lynch & Co., Inc. and with respect to Party B, Not Applicable.


 


Governing
Law.  This Confirmation
will be governed by, and construed in accordance with, the laws of the State of
New York.


 


Netting of
Payments. The
provisions of Section 2(c) of the Agreement shall not be applicable to this
Transaction; provided, however, that with respect to this Agreement
or any other ISDA Master Agreement between the parties, any Share delivery
obligations on any day of Party B, on the one hand, and Party A, on the other
hand, shall be netted. The resulting Share delivery obligation of a party upon
such netting shall be rounded down to the nearest number of whole Common
Shares, such that neither party shall be required to deliver any fractional
Common Shares.


 


Accuracy
of Specified Information.  Section 3(d)
of the Agreement is hereby amended by adding in the third line thereof after
the word “respect” and before the period the words “or, in the case of audited
or unaudited financial statements or balance sheets, a fair presentation of the
financial condition of the relevant person.”


 


Basic
Representations. Section 3(a) of the Agreement
is hereby amended by the deletion of “and” at the end of Section 3(a)(iv);
the substitution of a semicolon for the period at the end of Section 3(a)(v)
and the addition of Sections 3(a)(vi), as follows:


 


22





















 


Eligible Contract Participant; Line of Business. It
is an “eligible contract participant” as defined in the Commodity Futures
Modernization Act of 2000 and it has entered into this Confirmation and this
Transaction in connection with its business or a line of business (including
financial intermediation), or the financing of its business.


 


Amendment
of Section 3(a)(iii).  Section
3(a)(iii) of the Agreement is modified to read as follows:


 


No Violation or Conflict. Such execution,
delivery and performance do not materially violate or conflict with any law
known by it to be applicable to it, any provision of its constitutional
documents, any order or judgment of any court or agency of government
applicable to it or any of its assets or any material contractual restriction
relating to Specified Indebtedness binding on or affecting it or any of its
assets.


 


Amendment
of Section 3(a)(iv). Section 3(a)(iv) of the
Agreement is modified by inserting the following at the beginning thereof:


 


“To such party’s best knowledge,”


 


Additional
Representations:


 


Party B
Representations. Party B (i) has such knowledge and
experience in financial and business affairs as to be capable of evaluating the
merits and risks of entering into this Transaction; (ii) has consulted with its
own legal, financial, accounting and tax advisors in connection with this
Transaction; and (iii) is entering into this Transaction for a bona fide
business purpose to hedge an existing position.


 


Party B is not and has not been
the subject of any civil proceeding of a judicial or administrative body of
competent jurisdiction that could reasonably be expected to impair materially
Party B’s ability to perform its obligations hereunder.


 


Party B will by the next
succeeding Business Day notify Party A upon obtaining knowledge of the
occurrence of any event that would constitute an Event of Default or a
Potential Adjustment Event.


 


FDICIA Representation. Party
A represents that it is a “financial institution” for purposes of Section 402
of the Federal Deposit Insurance Corporation Improvement Act of 1991, as
amended (the “Statute”), and the regulations promulgated pursuant thereto
because either (A) it is a broker or dealer, a depository institution or a
futures commission merchant (as such terms are defined in the Statute) or (B)
it will engage in financial contracts (as so defined) as a counterparty on both
sides of one or more financial markets (as so defined) and either (I) had one
or more financial contracts of a total gross dollar value of at least $1
billion in notional principal amount


 


23





















 


outstanding on any day during the previous
15-month period with counterparties that are not its affiliates or (II) had
total gross mark-to-market positions of at least $100,000,000 (aggregated
across counterparties) in one or more financial contracts on any day during the
previous 15-month period with counterparties that are not its affiliates.


 


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


 


Amendment of Section 6(d)(ii). Section 6(d)(ii) of the Agreement is modified by deleting the words “on the day” in
the second line thereof and substituting therefor “on the day that is three
Local Business Days after the day”. Section 6(d)(ii) is further modified
by deleting the words “two Local Business Days” in the fourth line thereof and
substituting therefor “three Local Business Days.”


 


Consent to
Recording. Each party consents to the recording of the
telephone conversations of trading and marketing personnel of the parties and
their Affiliates in connection with this Confirmation.


 


Affected
Parties. For purposes of Section 6(e) of the
Agreement, each party shall be deemed to be an Affected Party in connection
with Illegality.


 


6.             Miscellaneous


 


(a) Waiver of Right to Trial by Jury. Each party waives, to the fullest
extent permitted by applicable law, any right it may have to a trial by jury in
respect of any suit, action or proceeding relating to this Confirmation. Each
party (i) certifies that no representative, agent or attorney of the other
party has represented, expressly or otherwise, that such other party would not,
in the event of such a suit action or proceeding, seek to enforce the foregoing
waiver and (ii) acknowledges that it and the other party have been induced to
enter into this Confirmation by, among other things, the mutual waivers and
certifications in this Section.


 


(b) Severability.


 


If any term, provision,
covenant or condition of this Confirmation, or the application thereof to any
party or circumstance, shall be held to be invalid or unenforceable in whole or
in part for any reason, the remaining terms, provisions, covenants, and
conditions hereof shall continue in full force and effect as if this
Confirmation had been executed with the invalid or unenforceable provision
eliminated, so long as this Confirmation as so modified continues to express,
without material change, the original intentions of the parties as to the
subject matter of this Confirmation and the deletion of such portion of this
Confirmation will not substantially impair the respective benefits or
expectations of parties to this Agreement; provided, however,
that this severability


 


24





















 


provision shall not be
applicable if any provision of Section 2, 5, 6 or 13 of the Agreement (or any
definition or provision in Section 14 to the extent that it relates to, or is
used in or in connection with any such Section) shall be so held to be invalid
or unenforceable.


 


25





















 


Please confirm that the
foregoing correctly sets forth the terms of our agreement by signing and
returning this Confirmation.


 


	
   

  	
  Yours
  faithfully,

  
	
   

  	
   

  
	
   

  	
  MERRILL
  LYNCH INTERNATIONAL

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian
  Carroll

  	
   

  
	
   

  	
  Name:

  	
  Brian Carroll

  
	
   

  	
  Title:

  	
  Authorized
  Signatory

  
					



 


 


Confirmed as of the date first
written above:


 


	
  AFFILIATED
  MANAGERS GROUP, INC.

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Darrell
  W. Crate

  	
   

  
	
  Name:

  	
  Darrell W.
  Crate

  
	
  Title:

  	
  Executive
  Vice President,

  Chief Financial Officer and Treasurer

  
	
   

  
	
   

  
	
  MERRILL LYNCH, PIERCE, FENNER & SMITH

  INCORPORATED, as Agent

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Angelina
  Lopes

  	
   

  
	
  Name:

  	
  Angelina
  Lopes

  
	
  Title:

  	
  Authorized
  Signatory

  
				



 





















 


Annex A


 


GUARANTEE OF MERRILL LYNCH & CO., INC.


 


FOR VALUE
RECEIVED, receipt of which is hereby acknowledged, MERRILL LYNCH & CO.,
INC., a corporation duly organized and existing under the laws of the State of
Delaware (“ML & Co.”), hereby unconditionally guarantees to Affiliated
Managers Group, Inc. (the ”Company”), the due and punctual payment of any
and all amounts payable by Merrill Lynch International, a company organized
under the laws of England and Wales (“ML”), under the terms of the Master
Agreement between the Company and ML, dated as of July 26, 2004 (the “Agreement”),
including, in case of default, interest on any amount due, when and as the same
shall become due and payable, whether on the scheduled payment dates, at
maturity, upon declaration of termination or otherwise, according to the terms
thereof. In case of the failure of ML punctually to make any such payment, ML
& Co. hereby agrees to make such payment, or cause such payment to be made,
promptly upon demand made by the Company to ML & Co.; provided, however
that delay by the Company in giving such demand shall in no event affect ML
& Co.’s obligations under this Guarantee. This Guarantee shall remain in
full force and effect or shall be reinstated (as the case may be) if at any
time any payment guaranteed hereunder, in whole or in part, is rescinded or
must otherwise be returned by the Company upon the insolvency, bankruptcy or
reorganization of ML or otherwise, all as though such payment had not been made.
This is a guarantee of payment in full, not collection.


 


ML & Co.
hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Agreement;
the absence of any action to enforce the same; any waiver or consent by the
Company concerning any provisions thereof; the rendering of any judgment
against ML or any action to enforce the same; or any other circumstances that
might otherwise constitute a legal or equitable discharge of a guarantor or a
defense of a guarantor. ML & Co. covenants that this guarantee will not be
discharged except by complete payment of the amounts payable under the
Agreement. This Guarantee shall continue to be effective if ML merges or
consolidates with or into another entity, loses its separate legal identity or
ceases to exist.


 


ML & Co.
hereby waives diligence; presentment; protest; notice of protest, acceleration,
and dishonor; filing of claims with a court in the event of insolvency or
bankruptcy of ML; all demands whatsoever, except as noted in the first
paragraph hereof; and any right to require a proceeding first against ML.


 


ML & Co.
hereby certifies and warrants that this Guarantee constitutes the valid
obligation of ML & Co. and complies with all applicable laws.


 


This Guarantee
shall be governed by, and construed in accordance with, the laws of the State
of New York.


 


This Guarantee
may be terminated at any time by notice by ML & Co. to the Company given in
accordance with the notice provisions of the Agreement, effective upon receipt
of such


 





















 


notice by the Company or such
later date as may be specified in such notice; provided, however, that this
Guarantee shall continue in full force and effect with respect to any
obligation of ML under the Agreement entered into prior to the effectiveness of
such notice of termination.


 


This Guarantee
becomes effective concurrent with the effectiveness of the Agreement, according
to its terms.


 


IN WITNESS
WHEREOF, ML & Co. has caused this Guarantee to be executed in its corporate
name by its duly authorized representative.


 


	
   

  	
  MERRILL
  LYNCH & CO., INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  	
  Date:
  October 13, 2004