RULE 10B5-1 UNDER THE EXCHANGE ACT
("RULE 10B5-1") 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 AND EACH TRANSACTION ENTERED INTO UNDER THIS MASTER
CONFIRMATION SHALL BE INTERPRETED TO COMPLY WITH THE REQUIREMENTS OF RULE
10B5-1(C).
9
(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.
(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).
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.; PROVIDED THAT PURCHASES EFFECTED BY OR
FOR AN ISSUER PLAN BY AN AGENT INDEPENDENT OF THE ISSUER WITHIN THE MEANING OF
RULE 10B-18(A)(13)(II) SHALL NOT BE SUBJECT TO THIS SECTION 7.
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