ON THE EXCHANGE AT ANY TIME FALLS BELOW
THE TERMINATION PRICE (AS SPECIFIED IN THE RELATED SUPPLEMENTAL CONFIRMATION)
PROVIDED THAT (FOR THE AVOIDANCE OF DOUBT ONLY) SUCH ADDITIONAL TERMINATION
EVENT SHALL BE AN ADDITIONAL TERMINATION EVENT ONLY WITH RESPECT TO THE
TRANSACTION DOCUMENTED IN SUCH RELATED SUPPLEMENTAL CONFIRMATION.
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.
(B)
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 6(D) OF THE
AGREEMENT, FOLLOWING THE OCCURRENCE OF SUCH AN ADDITIONAL TERMINATION EVENT,
GS&CO. WILL NOTIFY COUNTERPARTY OF THE AMOUNT OWING UNDER SECTION 6(E) OF THE
AGREEMENT WITHIN A COMMERCIALLY REASONABLE TIME PERIOD (WITH SUCH PERIOD BASED
UPON THE AMOUNT OF TIME, DETERMINED BY GS&CO. (OR ANY OF ITS AFFILIATES) IN ITS
SOLE DISCRETION, THAT IT WOULD TAKE TO UNWIND ANY OF ITS HEDGE POSITION(S)
RELATED TO THE TRANSACTION IN A COMMERCIALLY REASONABLE MANNER BASED ON RELEVANT
MARKET INDICIA).
FOR PURPOSES OF THE "NET SHARE SETTLEMENT UPON EARLY
TERMINATION" PROVISIONS HEREIN, (I) THE DATE THAT SUCH NOTICE IS EFFECTIVE (THE
"NOTICE DATE") SHALL CONSTITUTE THE "NET SHARE VALUATION DATE", (II) THE
EXCHANGE BUSINESS DAY IMMEDIATELY FOLLOWING THE NOTICE DATE SHALL BE THE NET
SHARE SETTLEMENT DATE AND (III) ALL REFERENCES TO THE FORWARD CASH SETTLEMENT
AMOUNT IN ANNEX B HERETO SHALL BE DEEMED TO BE THE EARLY TERMINATION AMOUNT.
10.
SPECIAL PROVISIONS FOR MERGER EVENTS.
NOTWITHSTANDING ANYTHING TO
THE CONTRARY HEREIN OR IN THE EQUITY DEFINITIONS, TO THE EXTENT THAT AN
ANNOUNCEMENT DATE FOR A POTENTIAL MERGER TRANSACTION OCCURS DURING ANY VALUATION
PERIOD:
(A)
PROMPTLY AFTER REQUEST FROM GS&CO., COUNTERPARTY SHALL 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;
AND
11
(B)
GS&CO. IN ITS SOLE DISCRETION MAY (I) MAKE ADJUSTMENTS TO THE
TERMS OF ANY TRANSACTION, INCLUDING, WITHOUT LIMITATION, THE VALUATION DATE, THE
COUNTERPARTY ADDITIONAL PAYMENT AMOUNT AND THE NUMBER OF SHARES TO ACCOUNT FOR
THE NUMBER OF SHARES THAT COULD BE PURCHASED ON EACH DAY DURING THE VALUATION
PERIOD IN COMPLIANCE WITH RULE 10B-18 FOLLOWING THE ANNOUNCEMENT DATE OR (II)
TREAT THE OCCURRENCE OF THE ANNOUNCEMENT DATE AS AN ADDITIONAL TERMINATION EVENT
WITH COUNTERPARTY AS THE SOLE AFFECTED PARTY.
"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.
SPECIAL CALCULATION AND SETTLEMENT FOLLOWING EARLY TERMINATION AND
EXTRAORDINARY EVENTS.
NOTWITHSTANDING