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.
7
(B)
IN ADDITION TO THE REPRESENTATIONS, WARRANTIES AND COVENANTS IN
THE AGREEMENT AND THOSE CONTAINED HEREIN, GS&CO. REPRESENTS, WARRANTS AND
COVENANTS TO COUNTERPARTY THAT, WITH RESPECT TO (I) ALL PURCHASES OF SHARES MADE
BY GS&CO. DURING ANY RELEVANT HEDGE PERIOD IN RESPECT OF ANY TRANSACTION AND
(II) PURCHASES DURING THE RELATED RELEVANT PERIOD (AS DEFINED BELOW) OF A NUMBER
OF SHARES EQUAL TO THE MINIMUM SHARES FOR SUCH TRANSACTION LESS THE NUMBER OF
SHARES SO PURCHASED DURING THE RELATED HEDGE PERIOD IN RESPECT OF SUCH
TRANSACTION, GS&CO. WILL USE COMMERCIALLY REASONABLE EFFORTS TO EFFECT SUCH
PURCHASES IN A MANNER SO THAT, IF SUCH PURCHASES WERE MADE BY COUNTERPARTY, THEY
WOULD MEET THE REQUIREMENTS OF RULE 10B-18(B)(2), (3) AND (4) ("RULE 10B-18")
UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (THE "EXCHANGE ACT"), AND
EFFECT CALCULATIONS IN RESPECT THEREOF, TAKING INTO ACCOUNT ANY APPLICABLE
SECURITIES AND EXCHANGE COMMISSION OR STAFF NO-ACTION LETTERS OR INTERPRETATIONS
AS APPROPRIATE AND SUBJECT TO ANY DELAYS BETWEEN THE EXECUTION AND REPORTING OF
A TRADE OF THE SHARES ON THE EXCHANGE AND OTHER CIRCUMSTANCES BEYOND GS&CO.'S
CONTROL.
4.
ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF
COUNTERPARTY.
IN ADDITION TO THE REPRESENTATIONS, WARRANTIES AND COVENANTS IN
THE AGREEMENT AND THOSE CONTAINED HEREIN, AS OF (I) THE DATE HEREOF, (II) THE
TRADE DATE FOR EACH TRANSACTION HEREUNDER AND (III) TO THE EXTENT EXPRESSLY
STATED BELOW, EACH DAY DURING THE HEDGE PERIOD AND CALCULATION PERIOD FOR EACH
TRANSACTION HEREUNDER, 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
is not aware of, any material non-public information with respect to the Shares,
(ii) in anticipation of, in connection with, or to facilitate, a distribution of
its securities, a self tender offer or a third-party tender offer or (iii) to
create actual or apparent trading activity in the Shares (or any security
convertible into or exchangeable for the Shares) or to raise or depress or
otherwise manipulate the price of the Shares (or any security convertible into
or exchangeable for the Shares);
(c)
each Transaction is being entered into pursuant to a publicly
disclosed Share buy-back program and its Board of Directors has approved the use
of derivatives to effect the Share