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.
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; ACCORDINGLY, COUNTERPARTY ACKNOWLEDGES THAT ITS DELIVERY OF SUCH
NOTICE MUST COMPLY WITH THE STANDARDS SET FORTH IN SECTION 7 ABOVE.
(B)
IN CONNECTION WITH ANY MERGER TRANSACTION,
GS&CO. IN ITS REASONABLE DISCRETION MAY (I) SUSPEND THE HEDGE PERIOD,
CALCULATION PERIOD AND/OR THE RELEVANT PERIOD AND POSTPONE THE TERMINATION DATE
AND MAKE RELATED ADJUSTMENTS AS THOUGH SUCH EVENT WERE A POTENTIAL ADJUSTMENT
EVENT OR (II) TREAT THE OCCURRENCE OF SUCH PUBLIC ANNOUNCEMENT AS AN ADDITIONAL
TERMINATION EVENT WITH COUNTERPARTY AS THE SOLE AFFECTED PARTY AND THE
TRANSACTIONS HEREUNDER AS THE AFFECTED TRANSACTIONS.
"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.
10
9.
SPECIAL PROVISIONS FOR FRIENDLY
TRANSACTION ANNOUNCEMENTS.
(A)
IF A FRIENDLY TRANSACTION ANNOUNCEMENT
OCCURS ON OR PRIOR TO THE SETTLEMENT DATE FOR ANY TRANSACTION, THEN THE NUMBER
OF SHARES TO BE DELIVERED FOR SUCH TRANSACTION SHALL BE DETERMINED AS IF THE
WORDS "NOT LESS THAN THE MINIMUM SHARES AND" AND ", BUT NOT BELOW ZERO," WERE
DELETED FROM THE DEFINITION THEREOF. IF A FRIENDLY TRANSACTION ANNOUNCEMENT
OCCURS AFTER THE TRADE DATE, BUT PRIOR TO THE FIRST ACCELERATION DATE OF ANY
TRANSACTION, THE FIRST ACCELERATION DATE SHALL BE THE DATE OF SUCH FRIENDLY
TRANSACTION ANNOUNCEMENT. IF A FRIENDLY TRANSACTION ANNOUNCEMENT OCCURS AFTER
THE SETTLEMENT DATE FOR ANY TRANSACTION OR ANY EARLIER DATE OF TERMINATION OR
CANCELLATION OF SUCH TRANSACTION PURSUANT TO SECTION 6 OF THE AGREEMENT OR
ARTICLE 12 OF THE EQUITY DEFINITIONS, THEN A SECOND SETTLEMENT OF SUCH
TRANSACTION (A "SECOND SETTLEMENT") SHALL OCCUR (NOTWITHSTANDING SUCH EARLIER
TERMINATION OR CANCELLATION) WITH A NUMBER OF SHARES TO BE DELIVERED EQUAL TO
THE LESSER OF (I) ZERO AND (II) (X) THE NUMBER OF SHARES TO BE DELIVERED
DETERMINED PURSUANT TO THE FIRST PRECEDING SENTENCE IN THIS PARAGRAPH AS IF SUCH
FRIENDLY TRANSACTION ANNOUNCEMENT OCCURRED PRIOR TO SUCH SETTLEMENT DATE MINUS
(Y) THE NUMBER OF SHARES TO BE DELIVERED DETERMINED PURSUANT TO SECTION 1 OF
THIS CONFIRMATION (PROVIDED THAT IN THE CASE OF A SECOND SETTLEMENT OCCURRING
AFTER SUCH AN EARLY TERMINATION OR CANCELLATION, A NUMBER OF SHARES TO BE
DELIVERED SHALL NOT BE DETERMINED AND INSTEAD A FORWARD CASH SETTLEMENT AMOUNT
WILL BE DETERMINED AS PROVIDED IN ANNEX A).
IF THE NUMBER OF SHARES TO BE
DELIVERED FOR ANY SETTLEMENT OF ANY TRANSACTION IS A NEGATIVE NUMBER, THEN THE
TERMS OF THE COUNTERPARTY SETTLEMENT PROVISIONS IN ANNEX A SHALL APPLY.
(B)
"FRIENDLY TRANSACTION ANNOUNCEMENT" MEANS