OF GS&CO. (WHICH CONSENT SHALL NOT BE
UNREASONABLY WITHHELD), DIRECTLY OR INDIRECTLY PURCHASE ANY SHARES, 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 (AS EXTENDED PURSUANT TO THE PROVISIONS HEREOF).
DURING THIS
TIME, ANY SUCH PURCHASES BY COUNTERPARTY SHALL BE MADE THROUGH GS&CO., OR IF NOT
THROUGH GS&CO., WITH THE PRIOR WRITTEN CONSENT OF GS&CO., AND IN COMPLIANCE WITH
RULE 10B-18 OR OTHERWISE IN A MANNER THAT COUNTERPARTY AND GS&CO. BELIEVE IS IN
COMPLIANCE WITH APPLICABLE REQUIREMENTS.
8.
ADDITIONAL TERMINATION EVENT.
THE DECLARATION OF ANY
EXTRAORDINARY DIVIDEND BY THE ISSUER DURING ANY HEDGE PERIOD OR CALCULATION
PERIOD WILL CONSTITUTE AN ADDITIONAL TERMINATION EVENT, WITH COUNTERPARTY AS THE
SOLE AFFECTED PARTY AND ALL TRANSACTIONS HEREUNDER AS THE AFFECTED TRANSACTIONS.
9.
SPECIAL PROVISIONS FOR MERGER TRANSACTIONS.
NOTWITHSTANDING
ANYTHING TO THE CONTRARY HEREIN OR IN THE EQUITY DEFINITIONS:
(A)
COUNTERPARTY AGREES THAT IT:
(I)
WILL NOT ON ANY SCHEDULED TRADING DAY DURING ANY HEDGE PERIOD OR
CALCULATION PERIOD MAKE, AND WILL USE COMMERCIALLY REASONABLE EFFORTS NOT TO
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;
10
(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.
COUNTERPARTY
UNDERSTANDS THAT GS&CO. WILL USE THIS INFORMATION IN CALCULATING THE TRADING
VOLUME FOR PURPOSES OF RULE 10B-18.
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;
(B)
GS&CO. IN ITS REASONABLE DISCRETION MAY (I) MAKE ADJUSTMENTS TO
THE TERMS OF ANY TRANSACTION, INCLUDING, WITHOUT LIMITATION, THE TERMINATION
DATE, THE HEDGE COMPLETION DATE, THE MINIMUM SHARES AND THE MAXIMUM SHARES, TO
ACCOUNT FOR THE NUMBER OF SHARES THAT COULD BE PURCHASED ON EACH DAY DURING