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.
"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%" 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) OR TENDER OFFER, 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
OR OTHER SIMILAR TRANSACTION AND (IV) 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.
AUTOMATIC TERMINATION PROVISIONS.
NOTWITHSTANDING ANYTHING TO THE
CONTRARY IN SECTION 6 OF THE AGREEMENT, IF A TERMINATION PRICE IS SPECIFIED IN
ONE OR MORE SUPPLEMENTAL CONFIRMATIONS, THEN AN ADDITIONAL TERMINATION EVENT
WITH COUNTERPARTY AS THE SOLE AFFECTED PARTY AND ALL TRANSACTIONS TO WHICH SUCH
SUPPLEMENTAL CONFIRMATIONS RELATE AS AFFECTED TRANSACTIONS WILL AUTOMATICALLY
OCCUR WITHOUT ANY NOTICE OR ACTION
10
BY GS&CO. OR COUNTERPARTY IF THE PRICE OF THE SHARES ON THE EXCHANGE AT ANY TIME
FALLS BELOW SUCH TERMINATION PRICE.
THE EXCHANGE BUSINESS DAY THAT THE PRICE OF
THE SHARES ON THE EXCHANGE AT ANY TIME FALLS BELOW THE TERMINATION PRICE WILL BE
THE "EARLY TERMINATION DATE" FOR PURPOSES OF THE AGREEMENT.
11.
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