exv10w1



 





Exhibit 10.1




EXECUTION COPY




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




Opening Transaction




	 	 	 
	To:

	 	Panera Bread Company
	 

	 	6710 Clayton Road
	 

	 	Richmond Heights, MO 63117 
	 
	 	 
	A/C:

	 	 
	 
	 	 
	From:

	 	Goldman, Sachs & Co.
	 
	 	 
	Re:

	 	Capped Accelerated Stock Buyback
	 
	 	 
	Ref. No:

	 	As provided in the Supplemental Confirmation
	 
	 	 
	Date:

	 	November 27, 2007 





 




     This master confirmation (this “Master Confirmation”), dated as of November 27, 2007 is
intended to set forth certain terms and provisions of certain Transactions (each, a “Transaction”)
entered into from time to time between Goldman, Sachs & Co. (“GS&Co.”) and Panera Bread Company
(“Counterparty”). This Master Confirmation, taken alone, is neither a commitment by either party
to enter into any Transaction nor evidence of a Transaction. The additional 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 binding agreement between
Counterparty and GS&Co. as to the subject matter and 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 each Trade Notification
supplement, form a part of, and are subject to an agreement in the form of the 2002 ISDA Master
Agreement (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) U.S. Dollars (“USD”) as the
Termination Currency, and (ii) the election that the “Cross Default” provisions of Section 5(a)(vi)
shall apply to Counterparty with a “Threshold Amount” of USD50 million).



     The Transactions shall be the sole Transactions under the Agreement. If there exists any ISDA
Master Agreement between GS&Co. and Counterparty or any confirmation or other agreement between
GS&Co. and Counterparty pursuant to which an ISDA Master Agreement is deemed to exist between
GS&Co. and Counterparty, then notwithstanding anything to the contrary in such ISDA Master
Agreement, such confirmation or agreement or any other agreement to which GS&Co. and Counterparty
are parties, the Transactions shall not be considered Transactions under, or otherwise governed by,
such existing or deemed ISDA Master Agreement.



1









 





     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 or in the related Supplemental Confirmation.



     If, in relation to any Transaction to which this Master Confirmation, a Supplemental
Confirmation and a Trade Notification relate, there is any inconsistency between the Agreement,
this Master Confirmation, any Supplemental Confirmation, any 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 that, together with the terms and
conditions set forth in the Supplemental Confirmation and Trade Notification relating to any
Transaction, shall govern such Transaction.




	 	 	 
	General Terms:
	 	 
	 
	 	 
	Trade Date:

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

	 	Counterparty
	 
	 	 
	Seller:

	 	GS&Co.
	 
	 	 
	Shares:

	 	Class A Common stock, par value $0.0001 per share, of Counterparty (Ticker: PNRA)
	 
	 	 
	Exchange:

	 	Nasdaq Global Select Market
	 
	 	 
	Related Exchange(s):

	 	All Exchanges.
	 
	 	 
	Prepayment\Variable 

Obligation:

	 	Applicable
	 
	 	 
	Prepayment Amount:

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

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

	 	The period from and including the Hedge Period Start Date to and including the
Hedge Completion Date.
	 
	 	 
	Hedge Period Start Date:

	 	For each Transaction, as set forth in the related Supplemental
Confirmation.
	 
	 	 
	Hedge Completion Date:

	 	For each Transaction, as set forth in the related Trade Notification,
to be 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,
but in no event later than the Hedge Period End Date.
	 
	 	 
	Hedge Period End Date:

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

Price:

	 	For each Transaction, as set forth in the related Trade Notification, to be the lower of
(i) the average of the VWAP Prices for the Exchange Business Days in the Hedge Period,
subject to “Valuation Disruption” below each Exchange Business Day in the Hedge Period and
(ii) the Maximum Hedge Period Reference Price.






2









 





	 	 	 
	Maximum Hedge Period 

Reference Price:

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

	 	For any Exchange Business Day, as determined by the Calculation Agent based on
the Nasdaq 10b-18 Volume Weighted Average Price per Share for the regular trading session
(including any extensions thereof) of the Exchange on such Exchange Business Day (without
regard to pre-open or after hours trading outside of such regular trading session for such
Exchange Business Day), as published by Bloomberg at or about 4:15 p.m. New York time (or
15 minutes following the end of any extension of the regular trading session) on such
Exchange Business Day, on Bloomberg page “PNRA.Q <Equity> AQR_SEC” (or any successor
thereto), or if such price is not so reported on such Exchange Business Day for any reason,
as reasonably determined by the Calculation Agent. For purposes of calculating the VWAP
Price, the Calculation Agent will include only those trades that are reported during the
period of time during which Counterparty could purchase its own shares under Rule
10b-18(b)(2) and are effected pursuant to the conditions of Rule 10b-18(b)(3), each under
the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (such trades, “Rule
10b-18 eligible transactions”).
	 
	 	 
	Forward Price:

	 	The average of the VWAP Prices for the Exchange Business Days in the Calculation
Period, subject to “Valuation Disruption” below.
	 
	 	 
	Forward Price 

Adjustment Amount:

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

	 	The period from and including the Calculation Period Start Date to and
including the Termination Date.
	 
	 	 
	Calculation Period Start 

Date:

	 	For each Transaction, as set forth in the related Trade
Notification, to be the first Exchange Business Day immediately following the Hedge
Completion Date.
	 
	 	 
	Termination Date:

	 	The Scheduled Termination Date; provided that GS&Co. shall have the right to
designate any Exchange Business Day on or after the First Acceleration Date to be the
Termination Date (the “Accelerated Termination Date”) by delivering notice to Counterparty
of any such designation prior to 11:59 p.m. New York City time on such Exchange Business
Day.
	 
	 	 
	Scheduled Termination Date:

	 	For each Transaction, as set forth in the related Supplemental
Confirmation, subject to postponement as provided in “Valuation Disruption” below.
	 
	 	 
	First Acceleration Date:

	 	For each Transaction, as set forth in the related Supplemental
Confirmation.
	 
	 	 
	Valuation Disruption:

	 	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, Latest Exercise Time, Knock-in Valuation
Time or Knock-out Valuation Time, as the case may be” and inserting the words “at any time
on any Scheduled Trading Day during the Hedge Period, Calculation Period or Settlement
Valuation Period” after the word “material,” in the third line thereof.
	 
	 	 
	 

	 	Section 6.3(d) of the Equity Definitions is hereby amended by
deleting the remainder of the provision following the term “Scheduled
Closing Time” in the fourth line thereof.
	 
	 	 
	 

	 	Notwithstanding anything to the contrary in the Equity Definitions,
to the extent that a Disrupted Day occurs (i) in the Hedge Period or
the Calculation Period,






3









 





	 	 	 
	 

	 	the Calculation Agent may, in its good faith and commercially
reasonable discretion, postpone either or both of the Hedge Period
End Date and/or the Scheduled Termination Date, or (ii) in the
Settlement Valuation Period, the Calculation Agent may extend the
Settlement Valuation Period. If any such Disrupted Day is a
Disrupted Day because of a Market Disruption Event (or a deemed
Market Disruption Event as provided herein), the Calculation Agent
shall 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, the Forward Price or the Settlement 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, and the weighting of the VWAP Price for the relevant
Exchange Business Days during the Hedge Period, the Calculation
Period or the Settlement Valuation Period, as the case may be, shall
be adjusted in a commercially reasonable manner by the Calculation
Agent for purposes of determining the Hedge Period Reference Price,
the Forward Price or the Settlement 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, the Calculation
Period or the Settlement Valuation Period, as the case may be, and
each of the nine immediately following Scheduled Trading Days is a
Disrupted Day, then the Calculation Agent, in its good faith and
commercially reasonable discretion, may deem such ninth Scheduled
Trading Day to be an Exchange Business Day that is not a Disrupted
Day and determine the VWAP Price for such ninth Scheduled Trading Day
using its good faith estimate of the value of the Shares on 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.
	 
	 	 
	Prepayment Adjustment 

Amount:

	 	The product of (x) the Prepayment Amount and (y) one minus the Hedge Ratio as of the
Hedge Completion Date. GS&Co. shall pay Counterparty the Prepayment Adjustment Amount on
the Prepayment Adjustment Date.
	 
	 	 
	Hedge Ratio:

	 	As of any day, a fraction, the numerator of which is the number of Shares
representing GS&Co.’s actual “delta” hedge of the Transaction on such day (which
the parties acknowledge may consist of Shares purchased by GS&Co. or derivatives entered
into by GS&Co.) and the denominator of which is GS&Co.’s theoretical “delta” hedge of the
Transaction on such day (determined based on such procedures and models as is used by
GS&Co. in the ordinary course in similar transactions and assuming that (x) the Number of
Shares to be Delivered is calculated on the basis of the Prepayment Amount without
subtraction for any Prepayment Adjustment Amount and (y) assuming that such theoretical
“delta” hedge is the “delta” hedge that GS&Co. expects as of such date that it would
purchase by the end of the Hedge Period if it were able to fully establish its initial
“delta” hedge of such unadjusted Prepayment Amount by the end of such Hedge Period assuming
it may still end on the Hedge Period End Date), as determined by the Calculation Agent.
	 
	 	 
	Prepayment Adjustment 

Date:

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






4









 





	 	 	 
	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 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)(i) the Prepayment Amount minus (ii) the
Prepayment Adjustment Amount divided by (b)(i) the Forward Price minus (ii) the Forward
Price Adjustment Amount; provided that the Number of Shares to be Delivered shall not be
less than the Minimum Shares. The Number of Shares to be Delivered on the Settlement Date
shall be reduced, but not below zero, by any Shares delivered pursuant to the Initial Share
Delivery and Minimum Share Delivery 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:

	 	The date that is one Settlement Cycle immediately following the Termination
Date.
	 
	 	 
	Settlement Currency:

	 	USD
	 
	 	 
	Initial Share Delivery:

	 	GS&Co. shall deliver a number of Shares equal to the Initial 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:

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

	 	For each Transaction, as set forth in the relevant Supplemental Confirmation.
	 
	 	 
	Minimum Share Delivery:

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

Date:

	 	The date one Settlement Cycle immediately following the Hedge Completion Date.
	 
	 	 
	Minimum Shares:

	 	For each Transaction, as set forth in the related Supplemental Confirmation.
	 
	 	 
	Share Adjustments:
	 	 
	 
	 	 
	Potential Adjustment Event:

	 	Notwithstanding anything to the contrary in Section 11.2(e) of the
Equity Definitions, an Extraordinary Dividend shall not constitute a Potential Adjustment
Event.
	 
	 	 
	 

	 	It shall constitute an additional Potential Adjustment Event if the
Scheduled Termination Date for any Transaction is postponed pursuant
to “Valuation Disruption” above, in which case the Calculation Agent
may, in its commercially reasonable discretion, adjust any relevant
terms of any such






5









 





	 	 	 
	 

	 	Transaction as necessary to preserve as nearly as practicable the
fair value of such Transaction to GS&Co. prior to such postponement.
	 
	 	 
	Extraordinary Dividend:

	 	For any calendar quarter occurring (in whole or in part) during the
period from and including the first day of the Hedge 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).
	 
	 	 
	Method of Adjustment:

	 	Calculation Agent Adjustment
	 
	 	 
	Extraordinary Events:
	 	 
	 
	 	 
	Consequences of
Merger Events:
	 	 






	 	 	 	 	 	 	 	 	 
	 

	 	(a)
	 	Share-for-Share:
	 	Modified Calculation Agent Adjustment
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	(b)
	 	Share-for-Other:
	 	Cancellation and Payment	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	(c)
	 	Share-for-Combined:
	 	Component Adjustment	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Determining Party:
	 	GS&Co.	 	 






	 	 	 
	Tender Offer:

	 	Applicable; provided that (i) Section 12.1(l) of the Equity Definitions shall be
amended (x) by deleting the parenthetical in the fifth line thereof, (y) by replacing
“that” in the fifth line thereof with “whether or not such announcement” and (z) by adding
immediately after the words “Tender Offer” in the fifth line thereof “, and any publicly
announced change or amendment to such an announcement (including the announcement of an
abandonment of such intention)” and (ii) Sections 12.3(a) and 12.3(d) of the Equity
Definitions shall each be amended by replacing each occurrence of the words “Tender Offer
Date” by “Announcement Date.”
	Consequences of
Tender Offers:
	 	 






	 	 	 	 	 	 	 
	 

	 	(a)
	 	Share-for-Share:
	 	Modified Calculation Agent Adjustment or Cancellation and
Payment, at the election of GS&Co., provided that any such election shall be made in
good faith and in a commercially reasonable manner (in light of market conditions and
trading characteristics of the Shares at the time and information available to GS&Co.
at such time).
	 
	 	 	 	 	 	 
	 

	 	(b)
	 	Share-for-Other:
	 	Modified Calculation Agent Adjustment or Cancellation and
Payment, at the election of GS&Co., provided that any such election shall be made in
good faith and in a commercially reasonable manner (in light of market conditions and
trading characteristics of the Shares at the time and information available to GS&Co.
at such time).
	 
	 	 	 	 	 	 
	 

	 	(c)
	 	Share-for-Combined:
	 	Modified Calculation Agent Adjustment or Cancellation and
Payment, at the election of GS&Co., provided that any such election shall be made in
good faith and in a commercially reasonable manner (in light of market conditions and
trading characteristics of the Shares at the time and information available to GS&Co.
at such time).
	 
	 	 	 	 	 	 
	 

	 	 	 	Determining Party:
	 	GS&Co. If GS&Co. elects Cancellation and Payment as the
consequence for any Tender Offer pursuant to the foregoing






6









 





	 	 	 	 	 	 	 
	 

	 	 	 	 	 	elections for Share-for-Share, Share-for-Other and
Share-for-Combined Tender Offers, GS&Co. shall, at
Counterparty’s request, describe to Counterparty the
reasons for such determination but only to the extent
such description does not violate any applicable
legal, regulatory or self-regulatory requirements or
related policies or procedures (whether or not such
requirements, policies or procedures are imposed by
law or have been voluntarily adopted by GS&Co.) or
any contractual obligations of GS&Co., including
without limitation any requirement for or obligation
of GS&Co. to keep certain information relevant to
such determination confidential.






	 	 	 
	Nationalization, 

Insolvency or Delisting:

	 	Cancellation and Payment with GS&Co. as Determining Party; 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, The NASDAQ Global Select Market or The NASDAQ Global
Market (or their respective successors); if the Shares are immediately re-listed, re-traded
or re-quoted on any such exchange or quotation system, such exchange or quotation system
shall be deemed to be the Exchange.






	 	 	 	 	 	 	 
	 

	 	 
	 	Determining Party:
	 	GS&Co.






	 	 	 
	Additional Disruption Events:
	 	 
	 
	 	 
	Change in Law:

	 	Applicable; provided that Section 12.9(a)(ii)(Y) of the Equity Definitions
shall not apply if the Calculation Agent determines that such party could have taken
reasonable steps to avoid such material increase in cost.
	 
	 	 
	Failure to Deliver:

	 	Applicable
	 
	 	 
	Insolvency Filing:

	 	Applicable
	 
	 	 
	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:

	 	GS&Co.
	 
	 	 
	Additional Termination Event(s):

	 	Notwithstanding anything to the contrary in the Equity Definitions, if, as a
result of an Extraordinary Event, any Transaction would be cancelled or
terminated (whether in whole or in part) pursuant to Article 12 of the Equity
Definitions, an Additional Termination Event (with such terminated
Transaction(s) (or portions thereof) being the Affected Transaction(s) and
Counterparty being the sole Affected Party) shall be deemed to occur, and, in
lieu of Sections 12.7, 12.8 and 12.9 of the Equity Definitions, Section 6 of the
Agreement shall apply to such Affected Transaction(s).






7









 





	 	 	 
	 

	 	The declaration by the Issuer of any
Extraordinary Dividend, the ex-dividend
date for which occurs or is scheduled to
occur during the Hedge Period or the
Calculation Period, will constitute an
Additional Termination Event, with
Counterparty as the sole Affected Party
and all Transactions hereunder as the
Affected Transactions.
	 
	 	 
	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 any Transaction, in whole or in part, to an
affiliate of GS&Co. whose obligations are 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

ABA: 
	 
	 	 
	Counterparty’s Contact Details
for Purpose of Giving Notice:

	 	Telephone No.: 

Facsimile No.: 

Attention: Jeffrey W. Kip, Senior Vice President and Chief Financial Officer
	 
	 	 
	 

	 	With a copy to:
	 

	 	Jeannette K Boot
	 

	 	WilmerHale
	 

	 	399 Park Avenue
	 

	 	New York, NY 10022
	 

	 	Telephone No.: (212) 295-6507
	 

	 	Facsimile No.: (212) 230-8888
	 
	 	 
	GS&Co.’s Contact Details for
Purpose of Giving Notice:

	 	Telephone No.: 

Facsimile No.: 

Attention: Equity Operations: Options and Derivatives
	 
	 	 
	 

	 	With a copy to:
	 

	 	Tracey McCabe
	 

	 	Equity Capital Markets
	 

	 	One New York Plaza
	 

	 	New York, NY 10004
	 

	 	Telephone No.: 
	 

	 	Facsimile No.: 
	 
	 	 
	2. Calculation Agent.

	 	GS&Co.





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





8












 





     (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 as agent or in any other capacity, fiduciary or otherwise) and not
for the benefit of any third party.



     (b) Accredited Investor. Each party 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. Accordingly, each party
represents and warrants to the other 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 under the Securities Act
and (iii) the disposition of each Transaction is restricted under this Master Confirmation, the
Securities Act and state securities laws.


4. Additional Representations, Warranties and Covenants of Counterparty. In addition to
the representations, warranties and covenants in the Agreement, 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 Rule 13e-4 under the Exchange Act.



     (b) It is not entering into any Transaction (i) on the basis of, and, as of the Effective Date
(as defined below) for such Transaction, 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 Share buy-back program which shall be
publicly disclosed prior to the opening of trading in the Shares during regular trading hours on
the Exchange on the Exchange Business Day immediately following the Trade Date (such Exchange
Business Day, the “Effective Date”) and in compliance with applicable law and its Board of
Directors has approved the use of derivatives to effect the Share buy-back program.



     (d) Without limiting the generality of Section 13.1 of the Equity Definitions, it acknowledges
that neither GS&Co. nor any of its affiliates is making any representations or warranties or taking
any position or expressing any view with respect to the treatment of any Transaction under any
accounting standards including FASB Statements 128, 133 as amended, or 149, 150, EITF 00-19, 01-6
or EITF 03-6 (or any successor issue statements) or under the Financial Accounting Standards
Board’s Liabilities & Equity Project.



     (e) As of (i) the date hereof and (ii) the Trade Date for each Transaction hereunder, other
than with respect to the disclosure of the relevant Transaction to be made on the Effective Date of
the relevant Transaction pursuant to Section 4(C) above, 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
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 and/or
Regulation S-B under the Exchange Act, as applicable.



     (g) The Shares are not, and Counterparty will not cause the Shares to be, subject to a
“restricted period” (as defined in Regulation M promulgated under the Exchange Act) at any time
during any Regulation M Period (as defined below) for any Transaction unless Counterparty has
provided written notice to GS&Co. of such restricted period not later than the Scheduled Trading
Day immediately preceding the first day of such “restricted period”; Counterparty acknowledges that
any such notice may cause a Disrupted Day to occur 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; “Regulation M Period” means, for any Transaction, the period commencing on the
first day of the Hedge Period for such Transaction and ending on the last day of the Relevant
Period (as defined below)



9









 






for such Transaction, or such earlier day as elected by GS&Co. and communicated to
Counterparty on such day. “Relevant Period” means, for any Transaction, the period commencing on
the Calculation Period Start Date for such Transaction and ending on the last Additional Relevant
Day (as specified in the related Supplemental Confirmation) for such Transaction (or, if later, the
First Acceleration Date without regard to any acceleration thereof pursuant to “Special Provisions
for Acquisition Transaction Announcements” below).



     (h) As of the Trade Date, the Prepayment Date, the Initial Share Delivery Date, the Minimum
Share Delivery Date and the Settlement Date, if any, for each Transaction, Counterparty is not
“insolvent” (as such term is defined under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of
the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a
number of Shares with a value equal to the Prepayment Amount in compliance with the laws of the
jurisdiction of Counterparty’s incorporation.



     (i) Counterparty is not and, after giving effect to any 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.



     (j) Counterparty will not take any action or refrain from taking any action that would limit
or in any way materially adversely affect GS&Co.’s rights under the Agreement, this Master
Confirmation, any Supplemental Confirmation or any Trade Notification.



     (k) Counterparty has not and will not enter into agreements similar to the Transactions
described herein where any initial hedge period, calculation period, relevant period or settlement
valuation period (each however defined) in such other transaction will overlap at any time
(including as a result of extensions in such initial hedge period, calculation period, relevant
period or settlement valuation period as provided in the relevant agreements) with any Hedge
Period, Relevant Period or, if applicable, any Settlement Valuation Period under this Master
Confirmation. In the event that the initial hedge period, relevant period, calculation period or
settlement valuation period in any other similar transaction overlaps with any Hedge Period,
Relevant Period or, if applicable, Settlement Valuation Period under this Master Confirmation as a
result of any postponement of the Termination Date or extension of the Settlement Valuation Period
pursuant to “Valuation Disruption” above, Counterparty shall promptly amend such transaction to
avoid any such overlap.


5. Regulatory Disruption. In the event that GS&Co. concludes, in its reasonable
discretion, 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, the Calculation Period or,
if applicable, the Settlement Valuation Period, GS&Co. may by written notice to Counterparty elect
to deem that a Market Disruption Event has occurred on such Scheduled Trading Day. The notice
shall not specify, and GS&Co. shall not otherwise communicate to Counterparty, the reason for
GS&Co.’s election.



6. 10b5-1 Plan. Counterparty represents, warrants and covenants to GS&Co. that:




     (a) Counterparty 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 Section 10(b) of, and
Rule 10b-5 under the Exchange Act or any other antifraud or anti-manipulation provisions of the
federal or applicable state securities laws and that it has not entered into or altered and will
not enter into or alter any corresponding or hedging transaction or position with respect to the
Shares. Counterparty acknowledges that it is the intent of the parties that each Transaction
entered into under this Master Confirmation comply with the requirements of paragraphs (c)(1)(i)(A)
and (B) of Rule 10b5-1 under the Exchange Act (“Rule 10b5-1”) and each Transaction entered into
under this Master Confirmation shall be interpreted to comply with the requirements of Rule
10b5-1(c).



     (b) Counterparty will not seek to control or influence GS&Co.’s decision to make any
“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. Counterparty represents and warrants that it has consulted
with its own advisors as to the legal aspects of its



10









 






adoption and implementation of this Master Confirmation, each Supplemental Confirmation and each
Trade Notification under Rule 10b5-1.



     (c) 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 or
waiver 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 (including by means of a derivative instrument),
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)) during any Hedge Period or Relevant Period or, if applicable, Settlement
Valuation Period, except through GS&Co.



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




     (a) Counterparty agrees that it:



     (i) will not during the period commencing on the Trade Date through the end of the Relevant
Period for any Transaction make, or permit to be made, any public announcement (as defined in Rule
165(f) under the Securities Act) of any Merger Transaction or potential Merger Transaction unless
such public announcement is made prior to the opening or after the close of the regular trading
session on the Exchange for the Shares;



     (ii) shall promptly (but in any event prior to the next opening of the regular trading session
on the Exchange) notify GS&Co. following any such announcement that such announcement has been
made; and



     (iii) shall promptly (but in any event prior to the next opening of the regular trading
session on the Exchange) 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 above.



     (b) GS&Co. in its reasonable discretion may (i) cause the Calculation Agent to make
adjustments to the terms of any Transaction, including, without limitation, the Termination Date or
the Forward Price Adjustment Amount, and/or suspend the Hedge Period, the Calculation Period and/or
any Settlement Valuation Period or (ii) treat the occurrence of such public announcement as an
Additional Termination Event with Counterparty as the sole Affected Party and the Transactions
hereunder as the Affected Transactions and with the amount under Section 6(e) of the Agreement
determined taking into account the fact that the Calculation Period or Settlement Valuation Period,
as the case may be, had fewer Scheduled Trading Days than originally anticipated.



     “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.



11









 




9. Special Provisions for Acquisition Transaction Announcements. (a) If an Acquisition
Transaction Announcement occurs on or prior to the Settlement Date for any Transaction, then the
Number of Shares to be Delivered for such Transaction shall be determined as if the words “less
than the Minimum Shares and not” and “, but not below zero,” were deleted from the definition
thereof. If an Acquisition Transaction Announcement occurs after the Trade Date, but prior to the
First Acceleration Date of any Transaction, the First Acceleration Date shall be the date of such
Transaction Announcement. If the Number of Shares to be Delivered for any settlement of any
Transaction is a negative number, then the terms of the Counterparty Settlement Provisions in Annex
A shall apply.




     (b) “Acquisition Transaction Announcement” means (i) the announcement of an Acquisition
Transaction, (ii) an announcement that Counterparty or any of its subsidiaries has entered into an
agreement, a letter of intent or an understanding designed to result in an Acquisition Transaction,
(iii) the announcement of the intention to solicit or enter into, or to explore strategic
alternatives or other similar undertaking that may include, an Acquisition Transaction, or (iv) any
other announcement that in the reasonable judgment of the Calculation Agent may result in an
Acquisition Transaction. For the avoidance of doubt, announcements as used in the definition of
Acquisition Transaction Announcement refer to any public announcement whether made by the Issuer or
a third party.



     (c) “Acquisition Transaction” means (i) any Merger Event (for purposes of this definition the
definition of Merger Event shall be read with the references therein to “100%” being replaced by
“15% or more” and to “50%” by “75%” and without reference to the clause beginning immediately
following the definition of Reverse Merger therein to the end of such definition), Tender Offer or
Merger Transaction or any other transaction involving the merger of Counterparty with or into any
third party, (ii) the sale or transfer of all or substantially all of the assets of Counterparty,
(iii) a recapitalization, reclassification, binding share exchange in respect of 10% or more of the
number of Shares then outstanding or other similar transaction, (iv) any acquisition, lease,
exchange, transfer, disposition (including by way of spin-off or distribution) of assets (including
any capital stock or other ownership interests in subsidiaries) or other similar event by
Counterparty or any of its subsidiaries where the aggregate consideration transferable or
receivable by or to Counterparty or its subsidiaries exceeds 20% of the market capitalization of
Counterparty and (v) any transaction in which Counterparty or its board of directors has a legal
obligation to make a recommendation to its shareholders in respect of such transaction (whether
pursuant to Rule 14e-2 under the Exchange Act or otherwise).


10. Acknowledgments. (a) The parties hereto intend for:





     (i) each Transaction to be a “securities contract” as defined in Section 741(7) of the
Bankruptcy Code, a “swap agreement” as defined in Section 101(53B) of the Bankruptcy Code
and 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), 362(o), 546(e), 546(g), 546(j), 555, 556, 560 and 561 of
the Bankruptcy Code;




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




     (iii) a party’s right to liquidate, terminate or accelerate 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);
and




     (iv) all payments for, under or in connection with each Transaction, all payments for
the Shares (including, for the avoidance of doubt, payment of the Prepayment Amount) and the
transfer of such Shares to constitute “settlement payments” and “transfers” (as defined in
the Bankruptcy Code).



     (b) Counterparty acknowledges that:



12









 





          (i) during the term of any Transaction, GS&Co. and its affiliates may buy or sell Shares or
other securities or buy or sell options or futures contracts or enter into swaps or other
derivative securities in order to establish or adjust its hedge position with respect to such
Transaction;




          (ii) GS&Co. and its affiliates may also be active in the market for the Shares other than in
connection with hedging activities in relation to any Transaction;




          (iii) GS&Co. shall make its own determination as to whether, when or in what manner any
hedging or market activities in Counterparty’s securities shall be conducted and shall do so in a
manner that it deems appropriate to hedge its price and market risk with respect to the Forward
Price and the VWAP Price;




          (iv) any market activities of GS&Co. and its affiliates with respect to the Shares may affect
the market price and volatility of the Shares, as well as the Forward Price and VWAP Price, each in
a manner that may be adverse to Counterparty; and




          (v) 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.



11. Credit Support Documents. The parties hereto acknowledge that no Transaction hereunder
is secured by any collateral that would otherwise secure the obligations of Counterparty herein or
pursuant to the Agreement.



12. Set-off. (a) The parties agree to amend Section 6 of the Agreement by replacing
Section 6(f) in its entirety with the following:





“(f) Upon the designation of an Early Termination Date due to the
occurrence of an Event of Default or Termination Event with respect
to a party who is the Defaulting Party or the sole 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).”



     (b) 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 with respect to contracts or instruments that are not Equity Contracts. “Equity
Contract” means any transaction or instrument that does not convey to GS&Co. rights, or the ability
to assert claims, that are senior to the rights and claims of common stockholders in the event of
Counterparty’s bankruptcy.



13









 




13. (a) Delivery of Shares. Notwithstanding anything to the contrary herein, GS&Co. may,
by prior notice to Counterparty, satisfy its obligation to deliver any Shares or other securities
on any date due (an “Original Delivery Date”) by making separate deliveries of Shares or such
securities, as the case may be, at more than one times on or prior to such Original Delivery Date,
so long as the aggregate number of Shares and other securities so delivered on or prior to such
Original Delivery Date is equal to the number required to be delivered on such Original Delivery
Date.




     (b) Delivery of Cash. For the avoidance of doubt, nothing in this Master Confirmation
shall be interpreted as requiring Counterparty to deliver cash in respect of the settlement of the
Transactions contemplated by this Master Confirmation following payment by Counterparty of the
relevant Prepayment Amount and any relevant Counterparty Additional Payment Amount, except in
circumstances where the required cash settlement thereof is permitted for classification of the
contract as equity by EITF 00-19 as in effect on the relevant Trade Date (including, without
limitation, where Counterparty so elects to deliver cash or fails timely to elect to deliver Shares
or Alternative Delivery Property in respect of the settlement of such Transactions).


14. Early Termination or Prepayment Adjustment. In the event that (a) 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 either party would owe any
amount to the other party pursuant to Section 6(d)(ii) of the Agreement (any such amount, a
“Payment Amount”) or (b) the Prepayment Adjustment Amount is greater than zero, then, in lieu of
any payment of such Payment Amount or Prepayment Adjustment Amount, Counterparty may, no later than
the Early Termination Date or the date on which such Transaction is terminated or the date
immediately preceding the Prepayment Adjustment Date, elect to deliver or for GS&Co. to deliver, as
the case may be, to the other party 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 Payment Amount or the Prepayment Adjustment Amount, as the case may be, 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 or on the
Prepayment Adjustment Date, as the case may be, and, if such delivery is made by GS&Co., the prices
at which GS&Co. purchases Shares or Alternative Delivery Property to fulfill its delivery
obligations under this Section 14); 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. If such delivery is made by Counterparty, paragraphs 2 through 7 of Annex A shall apply as if
such delivery were a settlement of the Transaction to which Net Share Settlement applied, the Cash
Settlement Payment Date were the Early Termination Date and the Forward Cash Settlement Amount were
zero (0) minus the Payment Amount owed by Counterparty.



15. Calculations and Payment Date upon Early Termination. The parties acknowledge and
agree that in calculating the Close-out Amount pursuant to Section 6 of the Agreement GS&Co. may
(but need not) determine losses without reference to actual losses incurred but based on expected
losses assuming a commercially reasonable (including without limitation with regard to reasonable
legal and regulatory guidelines) risk bid were used to determine loss to avoid awaiting the delay
associated with closing out any hedge or related trading position in a commercially reasonable
manner prior to or sooner following the designation of an Early Termination Date. 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 14, such Shares or Alternative
Delivery Property shall be delivered on a date selected by GS&Co as promptly as practicable.



16. 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, such amount shall be


14









 





deemed to be zero; provided that following an Acquisition Transaction Announcement, this Section 16
shall cease to apply.



17. Claim in Bankruptcy. GS&Co. acknowledges and agrees that this Confirmation is not
intended to convey to it rights with respect to the Transaction that are senior to the claims of
common stockholders in the event of Counterparty’s bankruptcy.



18. General Obligations Law of New York. With respect to each Transaction, (i) this Master
Confirmation, together with the related Supplemental Confirmation, as supplemented by the related
Trade Notification, is a “qualified financial contract”, as such term is defined in Section
5-701(b)(2) of the General Obligations Law of New York (the “General Obligations Law”); (ii) such
Trade Notification constitutes a “confirmation in writing sufficient to indicate that a contract
has been made between the parties” hereto, as set forth in Section 5-701(b)(3)(b) of the General
Obligations Law; and (iii) this Master Confirmation, together with the related Supplemental
Confirmation, constitutes a prior “written contract” as set forth in Section 5-701(b)(1)(b) of the
General Obligations Law, and each party hereto intends and agrees to be bound by this Master
Confirmation and the related Supplemental Confirmation, as supplemented by the Trade Notification.



19. 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 other than Title 14 of Article 5 of the New York
General Obligations Law).



20. 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: 6710 Clayton Road, Richmond Heights,
Missouri 63117.


21. Choice of Dispute Resolution: 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 Transactions contemplated hereby, the accounts established in connection with any
Transaction, any activity or claim related to such accounts or the construction, performance, or
breach of the Agreement, this Master Confirmation, and Supplemental Confirmation or any Trade
Notification or any other agreement between Counterparty and GS&Co. shall be settled by means of
either arbitration or litigation in accordance with the following procedures, unless the parties
agree to other procedures in writing when any dispute arises.




     (a) Dispute Resolution Mechanism. All disputes shall be resolved by arbitration pursuant to
the procedures set forth in subparagraph (b) below unless Counterparty shall elect that a dispute
be resolved by litigation, in which case the dispute shall be resolved by litigation pursuant to
the procedures set forth in subparagraph (c) below. Counterparty shall make such election either
(i) by instituting litigation if neither party has already commenced arbitration proceedings, or
(ii) by electing to proceed by litigation in writing by registered mail addressed to GS&Co. at its
main office within fifteen (15) business days of notification that GS&Co. has taken the first step
in the commencement of arbitration proceedings.



     (b) Arbitration. This Confirmation contains a predispute arbitration clause. By signing an
arbitration agreement, the parties agree as follows:



          (i) 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.




15









 





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




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




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




          (v) The panel of arbitrators will typically include a minority of arbitrators who were or are
affiliated with the securities industry.




          (vi) 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.




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



Arbitration shall be 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.



No person shall bring a putative or certified class action to arbitration, nor seek to enforce any
pre-dispute arbitration agreement against any person who has initiated in court a putative class
action or who is a member of a putative class who has not opted out of the class with respect to
any claims encompassed by the putative class action until: (i) the class certification is denied;
(ii) the class is decertified; or (iii) Counterparty is excluded from the class by the court.



Such forbearance to enforce an agreement to arbitrate shall not constitute a waiver of any rights
under this Confirmation except to the extent stated herein.




     (c) Litigation. Any litigation commenced pursuant to this subparagraph must be
instituted in the United States Court for the Southern District of New York, or in the event such
court lacks subject matter jurisdiction, the New York Supreme Court for the County of New York.
Counterparty consents to personal jurisdiction in New York for purposes of such litigation. Any
right to trial by jury with respect to any claim or action is hereby waived by all parties to this
agreement.”


22. 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.



23. Calculations in Writing. In connection with any calculation, computation or
determination required to be performed by the Calculation Agent or the Determining Party or any
exercise of discretion granted to the Calculation Agent to alter, amend or adjust the terms of this
Master Confirmation or any related Supplemental Confirmation or Trade Confirmation or any
Transaction hereunder, the Calculation Agent or the Determining Party, as the case may be, shall,
at Counterparty’s request, provide to Counterparty in writing a reasonably detailed presentation of
such calculation, computation, determination or adjustment.




16









 





     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 sincerely,



GOLDMAN, SACHS & CO.

 	 
	 	By:  	/s/
David Goldenberg 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 



Agreed and Accepted By:



PANERA BREAD COMPANY




	 	 	 	 	 
	By:

	 	/s/ Ronald M. Shaich 
	 	 
	 

	 	 	 	 
	 

	 	Name: Ronald M. Shaich	 	 
	 

	 	Title:   Chief Executive Officer	 	 




















 





SCHEDULE A




SUPPLEMENTAL CONFIRMATION




	 	 	 
	To:
	 	 
	 

	 	Panera Bread Company
	 

	 	6710 Clayton Road
	 

	 	Richmond Heights, MO 63117
	 
	 	 
	From:

	 	Goldman, Sachs & Co.
	 
	 	 
	Subject:

	 	Capped Accelerated Stock Buyback
	 
	 	 
	Ref. No:

	 	[Insert Reference No.]
	 
	 	 
	Date:

	 	[Insert Date]
	 
	 	 





          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 Panera Bread Company
(“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 [Insert Date] (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:

	 	[                    ]
	 
	 	 
	Forward Price Adjustment Amount:

	 	USD[0.00]
	 
	 	 
	Hedge Period Start Date:

	 	[                    ]
	 
	 	 
	Hedge Period End Date:

	 	[                    ]
	 
	 	 
	Scheduled Termination Date:

	 	As set forth in the Trade
Notification, to be the date that
immediately follows the Hedge
Period Completion Date by [ ]
months (or, if such day is not an
Exchange Business Day, the next
following Exchange Business Day).
	 
	 	 
	First Acceleration Date:

	 	[                    ]
	 
	 	 
	Prepayment Amount:

	 	USD[          ]
	 
	 	 
	Maximum Hedge Period Reference Price:

	 	USD[          ]
	 
	 	 
	Initial Share Delivery Date:

	 	[                    ]
	 
	 	 
	Initial Shares:

	 	[                    ]
	 
	 	 
	Prepayment Date:

	 	[                    ]






A-1









 





	 	 	 
	 
	 	 
	Minimum Shares:

	 	As set forth in the Trade
Notification, to be a number of
Shares equal to (a) (i) the
Prepayment Amount minus (ii) the
Prepayment Adjustment Amount
divided by (b) [     ]% of the
Hedge Period Reference Price.
	 
	 	 
	Additional Relevant Days:

	 	The [     ] Exchange Business Days
immediately following the
Calculation Period.
	 
	 	 
	[Increase/Decrease in Reserved Shares:

	 	[                    ] Shares]





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, and during the calendar week of, 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.




A-2









 





     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 the Transaction to which
this Supplemental Confirmation relates, 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:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 



	 	 	 	 	 
	Agreed and Accepted By:	 	 
	 
	 	 	 	 
	PANERA BREAD COMPANY	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:	 	 
	 

	 	Title:	 	 







 









 







SCHEDULE B




TRADE NOTIFICATION




	 	 	 
	To:
	 	 
	 

	 	Panera Bread Company
	 

	 	6710 Clayton Road
	 

	 	Richmond Heights, MO 63117
	 
	 	 
	From:

	 	Goldman, Sachs & Co.
	 
	 	 
	Subject:

	 	Capped Accelerated Stock Buyback
	 
	 	 
	Ref. No:

	 	[Insert Reference No.]
	 
	 	 
	Date:

	 	[Insert Date]
	 
	 	 





          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 Panera Bread Company (“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 [Insert Date of Supplemental Confirmation] (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 [Insert Date of Master
Confirmation] (the “Master Confirmation”) between the Contracting Parties, as amended and
supplemented from time to time.



	 	 	 
	 
	 	 
	Hedge Completion Date:

	 	[          ]
	 
	 	 
	Calculation Period Start Date:

	 	[          ]
	 
	 	 
	Hedge Period Reference Price:

	 	USD[          ]
	 
	 	 
	Initial Share Delivery Valuation Date:

	 	[          ]
	 
	 	 
	Initial Shares:

	 	[          ]
	 
	 	 
	Minimum Shares:

	 	[          ]
	 
	 	 
	Prepayment Adjustment Amount:

	 	USD[          ]
	 
	 	 
	Scheduled Termination Date:

	 	[          ]
	 
	 	 





	 	 	 	 	 
	 	Yours sincerely,



GOLDMAN, SACHS & CO.



 

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 




B-1









 





ANNEX A




COUNTERPARTY SETTLEMENT PROVISIONS




          1. The following Counterparty Settlement Provisions shall apply to the extent indicated under
the Master Confirmation:




	 	 	 
	Settlement Currency:

	 	USD
	 
	 	 
	Settlement Method Election:

	 	Applicable; provided that (i) Section 7.1 of the
Equity Definitions is hereby amended by deleting the word “Physical” in the
sixth line thereof and replacing it with the words “Net Share” and (ii) the
Electing Party may make a settlement method election only if the Electing
Party represents and warrants to GS&Co. in writing on the date it notifies
GS&Co. of its election that, as of such date, the Electing Party is not
aware of any material non-public information concerning Counterparty or the
Shares and is electing the settlement method in good faith and not as part
of a plan or scheme to evade compliance with the federal securities laws.
	 
	 	 
	Electing Party:

	 	Counterparty
	 
	 	 
	Settlement Method
	 	 
	Election Date:

	 	The earlier of (i) the Scheduled Termination Date and (ii) the
Accelerated Termination Date, as the case may be.
	 
	 	 
	Default Settlement Method:

	 	Cash Settlement
	 
	 	 
	Forward Cash Settlement
	 	 
	Amount:

	 	The Number of Shares to be Delivered multiplied by the Settlement Price.
	 
	 	 
	Settlement Price:

	 	The average of the VWAP Prices for the Exchange Business Days
in the Settlement Valuation Period, subject to “Valuation Disruption” as
specified in the Master Confirmation.
	 
	 	 
	Settlement Valuation Period:

	 	A number of Scheduled Trading Days selected by
GS&Co. in its reasonable discretion, beginning on the Scheduled Trading Day
immediately following the Termination Date.
	 
	 	 
	Cash Settlement:

	 	If Cash Settlement is applicable, then Buyer
shall pay to Seller the absolute value of the Forward Cash Settlement Amount
on the Cash Settlement Payment Date.
	 
	 	 
	Cash Settlement
	 	 
	Payment Date:

	 	The date one Settlement Cycle following the last day of the Settlement Valuation Period.
	 
	 	 
	Net Share Settlement
	 	 
	Procedures:

	 	If Net Share Settlement is applicable, Net Share Settlement shall be
made in accordance with paragraphs 2 through 7 below.






1









 





          2. Net Share Settlement shall be made by delivery on the Cash Settlement Payment Date of a
number of Shares satisfying the conditions set forth in paragraph 3 below (the “Registered
Settlement Shares”), or a number of Shares not satisfying such conditions (the “Unregistered
Settlement Shares”), in either case with a value equal to the absolute value of the Forward Cash
Settlement Amount, with such Shares’ value based on the value thereof to GS&Co. (which value shall,
in the case of Unregistered Settlement Shares, take into account a commercially reasonable
illiquidity discount), in each case as determined by the Calculation Agent.




          3. Counterparty may only deliver Registered Settlement Shares pursuant to paragraph 2 above
if:




          (a) a registration statement covering public resale of the Registered Settlement Shares by
GS&Co. (the “Registration Statement”) shall have been filed with the Securities and Exchange
Commission under the Securities Act and been declared or otherwise become effective on or prior to
the date of delivery, and no stop order shall be in effect with respect to the Registration
Statement; a printed prospectus relating to the Registered Settlement Shares (including any
prospectus supplement thereto, the “Prospectus”) shall have been delivered to GS&Co., in such
quantities as GS&Co. shall reasonably have requested, on or prior to the date of delivery;




          (b) the form and content of the Registration Statement and the Prospectus (including, without
limitation, any sections describing the plan of distribution) shall be satisfactory to GS&Co.;




          (c) as of or prior to the date of delivery, GS&Co. and its agents shall have been afforded a
reasonable opportunity to conduct a due diligence investigation with respect to Counterparty
customary in scope for underwritten offerings of equity securities and the results of such
investigation are satisfactory to GS&Co., in its discretion; and




          (d) as of the date of delivery, an agreement (the “Underwriting Agreement”) shall have been
entered into with GS&Co. in connection with the public resale of the Registered Settlement Shares
by GS&Co. substantially similar to underwriting agreements customary for underwritten offerings of
equity securities, in form and substance satisfactory to GS&Co., which Underwriting Agreement shall
include, without limitation, provisions substantially similar to those contained in such
underwriting agreements relating to the indemnification of, and contribution in connection with the
liability of, GS&Co. and its affiliates.




          4. If Counterparty delivers Unregistered Settlement Shares pursuant to paragraph 2 above:




          (a) all Unregistered Settlement Shares shall be delivered to GS&Co. (or any affiliate of
GS&Co. designated by GS&Co.) pursuant to the exemption from the registration requirements of the
Securities Act provided by Section 4(2) thereof;




          (b) as of or prior to the date of delivery, GS&Co. and any potential purchaser of any such
shares from GS&Co. (or any affiliate of GS&Co. designated by GS&Co.) identified by GS&Co. shall be
afforded a commercially reasonable opportunity to conduct a due diligence investigation with
respect to Counterparty customary in scope for private placements of equity securities (including,
without limitation, the right to have made available to them for inspection all financial and other
records, pertinent corporate documents and other information reasonably requested by them); and




          (c) as of the date of delivery, Counterparty shall enter into an agreement (a “Private
Placement Agreement”) with GS&Co. (or any affiliate of GS&Co. designated by GS&Co.) in connection
with the private placement of such shares by Counterparty to GS&Co. (or any such affiliate) and the
private resale of such shares by GS&Co. (or any such affiliate), substantially similar to private
placement purchase agreements customary for private placements of equity securities, in form and
substance commercially reasonably satisfactory to GS&Co., but whose approval will not be
unreasonably withheld, which Private Placement Agreement shall include, without limitation,
provisions substantially similar to those contained in such private placement purchase agreements




2









 






relating to the indemnification of, and contribution in connection with the liability of,
GS&Co. and its affiliates, and shall provide for the payment by Counterparty of all fees and
expenses in connection with such resale, including all fees and expenses of counsel for GS&Co., and
shall contain representations, warranties and agreements of Counterparty reasonably necessary or
advisable to establish and maintain the availability of an exemption from the registration
requirements of the Securities Act for such resales.




          5. GS&Co., itself or through an affiliate (the “Selling Agent”) or any underwriter(s), will
sell all, or such lesser portion as may be required hereunder, of the Registered Settlement Shares
or Unregistered Settlement Shares and any Makewhole Shares (as defined below) (together, the
“Settlement Shares”) delivered by Counterparty to GS&Co. pursuant to paragraph 6 below commencing
on the Cash Settlement Payment Date and continuing until the date on which the aggregate Net
Proceeds (as such term is defined below) of such sales, as determined by GS&Co., is equal to the
absolute value of the Forward Cash Settlement Amount (such date, the “Final Resale Date”). If the
proceeds of any sale(s) made by GS&Co., the Selling Agent or any underwriter(s), net of any fees
and commissions (including, without limitation, underwriting or placement fees) customary for
similar transactions under the circumstances at the time of the offering, together with carrying
charges and expenses incurred in connection with the offer and sale of the Shares (including, but
without limitation to, the covering of any over-allotment or short position (syndicate or
otherwise)) (the “Net Proceeds”) exceed the absolute value of the Forward Cash Settlement Amount,
GS&Co. will refund, in U.S. Dollars, such excess to Counterparty on the date that is three (3)
Currency Business Days following the Final Resale Date, and, if any portion of the Settlement
Shares remains unsold, GS&Co. shall return to Counterparty on that date such unsold Shares.




          6. If the Calculation Agent determines that the Net Proceeds received from the sale of the
Registered Settlement Shares or Unregistered Settlement Shares or any Makewhole Shares, if any,
pursuant to this paragraph 6 are less than the absolute value of the Forward Cash
Settlement Amount (the amount in U.S. Dollars by which the Net Proceeds are less than the absolute
value of the Forward Cash Settlement Amount being the “Shortfall” and the date on which
such determination is made, the “Deficiency Determination Date”), Counterparty shall on the
Exchange Business Day next succeeding the Deficiency Determination Date (the “Makewhole Notice
Date”) deliver to GS&Co., through the Selling Agent, a notice of Counterparty’s election that
Counterparty shall either (i) pay an amount in cash equal to the Shortfall on the day that is one
(1) Currency Business Day after the Makewhole Notice Date, or (ii) deliver additional Shares. If
Counterparty elects to deliver to GS&Co. additional Shares, then Counterparty shall deliver
additional Shares in compliance with the terms and conditions of paragraph 3 or paragraph 4 above,
as the case may be (the “Makewhole Shares”), on the first Clearance System Business Day which is
also an Exchange Business Day following the Makewhole Notice Date in such number as the Calculation
Agent reasonably believes would have a market value on that Exchange Business Day equal to the
Shortfall. Such Makewhole Shares shall be sold by GS&Co. in accordance with the provisions above;
provided that if the sum of the Net Proceeds from the sale of the originally delivered Shares and
the Net Proceeds from the sale of any Makewhole Shares is less than the absolute value of the
Forward Cash Settlement Amount then Counterparty shall, at its election, either make such cash
payment or deliver to GS&Co. further Makewhole Shares until such Shortfall has been reduced to
zero.




          7. Notwithstanding the foregoing, in no event shall the aggregate number of Settlement Shares
and Makewhole Shares be greater than the Reserved Shares minus the amount of any Shares actually
delivered by Counterparty under any other Transaction(s) under this Master Confirmation (the result
of such calculation, the “Capped Number”). Counterparty represents and warrants (which shall be
deemed to be repeated on each day that a Transaction is outstanding) that the Capped Number is
equal to or less than the number of Shares determined according to the following formula:




A – B




	 	 	 
	Where

	 	A = the number of authorized but unissued shares of the
Counterparty that are not reserved for future issuance on the date of the
determination of the Capped Number; and
	 
	 	 
	 

	 	B = the maximum number of Shares required to be delivered to third parties
if Counterparty elected Net Share Settlement of all transactions in the
Shares (other than






3









 





	 	 	 
	 

	 	Transactions in the Shares under this Master Confirmation) with all third
parties that are then currently outstanding and unexercised.






          “Reserved Shares” means initially, 2,500,000 Shares. The Reserved Shares may be increased or
decreased in a Supplemental Confirmation.





4