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.
9
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 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.
9.
SPECIAL PROVISIONS FOR FRIENDLY TRANSACTION ANNOUNCEMENTS.
(A)
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.
(B)
"FRIENDLY TRANSACTION ANNOUNCEMENT" MEANS (I) AN ACQUISITION
TRANSACTION ANNOUNCEMENT BY COUNTERPARTY OR ITS BOARD OF DIRECTORS PRIOR TO THE
LAST DAY OF THE RELEVANT PERIOD OR ANY EARLIER DATE OF TERMINATION OR
CANCELLATION OF THE RELEVANT TRANSACTION PURSUANT TO SECTION 6 OF THE AGREEMENT
OR ARTICLE 12 OF THE EQUITY DEFINITIONS (SUCH DATE, THE "ACTUAL TERMINATION
DATE"), (II) AN ANNOUNCEMENT PRIOR TO THE DATE THREE MONTHS FOLLOWING THE
SCHEDULED TERMINATION DATE THAT AN ACQUISITION TRANSACTION THAT IS THE SUBJECT
OF AN ACQUISITION TRANSACTION ANNOUNCEMENT OCCURRING PRIOR TO THE ACTUAL
TERMINATION DATE HAS BEEN APPROVED, AGREED TO, RECOMMENDED BY OR OTHERWISE
CONSENTED TO BY COUNTERPARTY OR ITS BOARD OF DIRECTORS, OR NEGOTIATED BY
COUNTERPARTY OR ANY AUTHORIZED REPRESENTATIVE OF COUNTERPARTY, OR (III) WHERE
COUNTERPARTY OR ITS BOARD OF DIRECTORS HAS A LEGAL OBLIGATION TO MAKE A
RECOMMENDATION TO ITS SHAREHOLDERS IN RESPECT OF ANY SUCH ACQUISITION
TRANSACTION PRIOR TO THE DATE THREE MONTHS FOLLOWING THE SCHEDULED TERMINATION
DATE, THE ABSENCE OF A RECOMMENDATION THAT ITS SHAREHOLDERS REJECT SUCH
TRANSACTION.
"ACQUISITION TRANSACTION ANNOUNCEMENT" MEANS (I) THE