Exhibit 10.2


 


Goldman, Sachs & Co.


One New York Plaza


New York, NY 10004


 


April 29, 2009


 


To: Textron Inc.


40
Westminster Street


Providence,
RI 02903


Attention:
Chief Financial Officer


Telephone No.:     (401) 421-2800


Facsimile
No.:       (401) 457-3533


 


	
  Re:

  	
  Issuer Warrant Transaction

  
	
  A/C:

  	
  028320281

  
	
  Ref. No.:

  	
  SDB1630442185

  



 


The purpose of
this letter agreement (this “Confirmation”)  is to confirm the terms and conditions of the Warrants
issued by Textron Inc. (the “Company”)
to Goldman, Sachs & Co. (“Bank”)
on the Trade Date specified below (the “Transaction”).  This letter agreement constitutes a “Confirmation” as
referred to in the ISDA Master Agreement specified below. This Confirmation
shall replace any previous agreements and serve as the final documentation for
the Transaction.


 


The
definitions and provisions contained in the 1996 ISDA Equity Derivatives
Definitions (the “Equity Definitions”), as published
by the International Swaps and Derivatives Association, Inc. (“ISDA”), are incorporated into this Confirmation. In the
event of any inconsistency between the Equity Definitions and this
Confirmation, this Confirmation shall govern. The Transaction shall be deemed
to be a Share Option Transaction within the meaning set forth in the Equity
Definitions.


 


Each party is
hereby advised, and each such party acknowledges, that the other party has
engaged in, or refrained from engaging in, substantial financial transactions
and has taken other material actions in reliance upon the parties’ entry into
the Transaction to which this Confirmation relates on the terms and conditions
set forth below.


 


1.             This Confirmation
evidences a complete and binding agreement between Bank and the Company as to
the terms of the Transaction to which this Confirmation relates. This Confirmation
shall supplement, form a part of, and be subject to an agreement in the form of
the 2002 ISDA Master Agreement (the “Agreement”)  as if Bank and the Company had executed an agreement
in such form (but without any Schedule except for the election of United States
dollars as the Termination Currency) on the Trade Date. In the event of any
inconsistency between provisions of that Agreement and this Confirmation, this
Confirmation will prevail for the purpose of the Transaction to which this
Confirmation relates. The parties hereby agree that no Transaction other than
the Transaction to which this Confirmation relates shall be governed by the
Agreement.


 


2.             The terms of the
particular Transaction to which this Confirmation relates are as follows:


 


	
  General
  Terms:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Trade
  Date:

  	
   

  	
  April 29,
  2009

  
	
   

  	
   

  	
   

  
	
  Warrants:

  	
   

  	
  Equity
  call warrants, each giving the holder the right to purchase one Share at the
  Strike Price, subject to the Settlement Terms set forth below. For the
  purposes of the Equity Definitions, each reference to a Warrant herein shall
  be deemed to be a reference to a Call Option.

  
	
   

  	
   

  	
   

  
	
  Warrant
  Style:

  	
   

  	
  European

  



 

















 


	
  Buyer:

  	
   

  	
  Bank

  
	
   

  	
   

  	
   

  
	
  Seller:

  	
   

  	
  The
  Company

  
	
   

  	
   

  	
   

  
	
  Shares:

  	
   

  	
  The
  common stock of Company, par value USD 0.125 per Share (Exchange symbol
  “TXT”)

  
	
   

  	
   

  	
   

  
	
  Number
  of Warrants:

  	
   

  	
  20,571,435,
  subject to adjustments provided herein

  
	
   

  	
   

  	
   

  
	
  Daily
  Number of Warrants:

  	
   

  	
  For
  any Expiration Date, as provided in Schedule A to this Confirmation, subject
  to adjustment pursuant to the provisos to “Expiration Date(s)”.

  
	
   

  	
   

  	
   

  
	
  Warrant
  Entitlement:

  	
   

  	
  One
  Share per Warrant

  
	
   

  	
   

  	
   

  
	
  Number
  of Shares:

  	
   

  	
  The
  product of the Number of Warrants and the Warrant Entitlement

  
	
   

  	
   

  	
   

  
	
  Strike
  Price:

  	
   

  	
  USD
  15.75

  
	
   

  	
   

  	
   

  
	
  Premium:

  	
   

  	
  USD
  42,336,000

  
	
   

  	
   

  	
   

  
	
  Premium
  Payment Date:

  	
   

  	
  May 5,
  2009

  
	
   

  	
   

  	
   

  
	
  Exchange:

  	
   

  	
  The
  New York Stock Exchange

  
	
   

  	
   

  	
   

  
	
  Related
  Exchange(s):

  	
   

  	
  The
  principal exchange(s) for options contracts or futures contracts, if
  any, with respect to the Shares.

  
	
   

  	
   

  	
   

  
	
  Exercise
  and Valuation:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Expiration
  Time:

  	
   

  	
  The
  Valuation Time

  
	
   

  	
   

  	
   

  
	
  Expiration
  Date(s):

  	
   

  	
  Each
  Exchange Business Day during the period from and including the First
  Expiration Date to and including the 45th Exchange Business Day following the
  First Expiration Date shall be an “Expiration Date” for a number of Warrants
  equal to the Daily Number of Warrants on such date; provided that, notwithstanding the
  foregoing and anything to the contrary in the Equity Definitions, if a Market
  Disruption Event occurs on any Expiration Date (including the First
  Expiration Date), the Calculation Agent shall make adjustments, if
  applicable, to the Daily Number of Warrants or shall reduce such Daily Number
  of Warrants to zero for which such day shall be an Expiration Date and shall
  designate an Exchange Business Day or a number of Exchange Business Days as
  the Expiration Date(s) for the remaining Daily Number of Warrants or a
  portion thereof for the originally scheduled Expiration Date; and provided further that if such Expiration
  Date has not occurred pursuant to this clause as of the eighth Exchange
  Business Day following the last scheduled Expiration Date under the
  Transaction, the Calculation Agent shall have the right to declare such
  Exchange Business Day to be the final Expiration Date and the Calculation
  Agent shall determine its good faith estimate of the fair market value for
  the Shares as of the Valuation Time on that eighth Exchange Business Day or
  on any subsequent Exchange Business Day, as the Calculation Agent shall
  determine using commercially reasonable means.

  
	
   

  	
   

  	
   

  
	
  First
  Expiration Date:

  	
   

  	
  August 1,
  2013, subject to Market Disruption Event below.

  
	
   

  	
   

  	
   

  
	
  Automatic
  Exercise:

  	
   

  	
  Applicable;
  and means that a number of Warrants for each Expiration Date equal to the
  Daily Number of Warrants (as adjusted pursuant to the terms hereof) for such
  Expiration Date will be deemed to be automatically exercised.

  
	
   

  	
   

  	
   

  
	
  Market
  Disruption Event:

  	
   

  	
  Section 4.3(a)(ii) is
  hereby amended by adding after the words “or Share Basket Transaction” in the
  first line thereof a phrase “a failure by the Exchange or Related Exchange to
  open for trading during its regular trading session or” and replacing the
  phrase “during the one-half hour period that ends at the relevant Valuation
  Time” with the phrase “at any time during the regular 

  



 


2

















 


	
   

  	
   

  	
  trading
  session on the Exchange or any Related Exchange, without regard to after
  hours or any other trading outside of the regular trading session hours”.

  
	
   

  	
   

  	
   

  
	
  Valuation
  applicable to each Warrant:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Valuation
  Time:

  	
   

  	
  At
  the close of trading of the regular trading session on the Exchange; provided that if the principal trading
  session is extended, the Calculation Agent shall determine the Valuation Time
  in its reasonable discretion.

  
	
   

  	
   

  	
   

  
	
  Valuation
  Date:

  	
   

  	
  Each
  Exercise Date. Notwithstanding anything to the contrary in the Equity
  Definitions, if there is a Market Disruption Event on any Valuation Date,
  then the Calculation Agent shall determine the Settlement Price for such
  Valuation Date on the basis of its good faith estimate of the market value
  for the relevant Shares on such Valuation Date.

  
	
   

  	
   

  	
   

  
	
  Settlement
  Terms applicable to the Transaction:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Method
  of Settlement:

  	
   

  	
  Net
  Share Settlement; provided that
  Cash Settlement shall apply if the Company validly elects Cash Settlement
  pursuant to the provisions of “Cash Settlement Election” below.

  
	
   

  	
   

  	
   

  
	
  Net
  Share Settlement:

  	
   

  	
  On
  the relevant Settlement Date, Company shall deliver to Bank, the Share
  Delivery Quantity of Shares for such Settlement Date to the account specified
  hereto free of payment through the Clearance System.

  
	
   

  	
   

  	
   

  
	
  Share
  Delivery Quantity:

  	
   

  	
  For
  any Settlement Date, a number of Shares, as calculated by the Calculation
  Agent, equal to the Net Share Settlement Amount for such Settlement Date divided by the Settlement Price on the
  Valuation Date in respect of such Settlement Date rounded down to the nearest
  whole number, plus cash in lieu
  of any fractional Shares (based on such Settlement Price).

  
	
   

  	
   

  	
   

  
	
  Net
  Share Settlement Amount:

  	
   

  	
  For
  any Settlement Date, an amount equal to the product of (i) the Number of
  Warrants exercised or deemed exercised on the relevant Exercise Date,
  (ii) the Strike Price Differential for such Settlement Date and
  (iii) the Warrant Entitlement.

  
	
   

  	
   

  	
   

  
	
  Strike
  Price Differential:

  	
   

  	
  (a) 
  If the Settlement Price for any Valuation Date is greater than the Strike
  Price, an amount equal to the excess of such Settlement Price over the Strike
  Price; or

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (b) 
  If such Settlement Price is less than or equal to the Strike Price, zero.

  
	
   

  	
   

  	
   

  
	
  Settlement
  Price:

  	
   

  	
  For
  any Valuation Date, the per Share volume-weighted average price for such
  Valuation Date as displayed under the heading “Bloomberg VWAP” on Bloomberg
  page TXT.N <equity> AQR (or any successor thereto) in respect of
  the period from 9:30 a.m. to 4:00 p.m. (New York City time) on such
  Valuation Date or if such price is unavailable, the market value of one Share
  on such Valuation Date, as determined by the Calculation Agent in its
  reasonable discretion (in each case, without regard to pre-open or after
  hours trading outside of any regular trading session for such Valuation
  Date). Notwithstanding anything to the contrary in the Equity Definitions, if
  there is a Market Disruption Event on any Valuation Date, then the
  Calculation Agent shall determine the Settlement Price for such Valuation
  Date on the basis of its good faith estimate of the market value for the
  relevant Shares on such Valuation Date.

  
	
   

  	
   

  	
   

  
	
  Settlement
  Date:

  	
   

  	
  For
  any Exercise Date, the date defined as such in Section 6.2 of the Equity
  Definitions, subject to Section 9(o)(i) hereof.

  
	
   

  	
   

  	
   

  
	
  Cash
  Settlement Election:

  	
   

  	
  With
  respect to all Warrants to be exercised on the Expiration Dates, the Company
  can elect Cash Settlement by delivering a written notice to Bank (the 

  



 


3

















 


	
   

  	
   

  	
  “Cash Settlement
  Notice”) on or prior to the fifth (5th) scheduled Exchange
  Business Day immediately preceding the First Expiration Date, which Cash
  Settlement Notice shall contain:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (i) 
  a representation that (x) on the date of such Cash Settlement Notice,
  neither the Company nor any of its affiliates is in possession of any
  material non-public information with respect to the Company or its Shares,
  (y) the Company is electing Cash Settlement in good faith and not as
  part of a plan or scheme to evade the prohibitions of Rule 10b-5 under
  the Securities Exchange Act of 1934, as amended (the “Exchange Act”)  and (z) the Company has not
  entered into or altered any hedging transaction relating to the Shares
  corresponding to or offsetting the Transaction;

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (ii) 
  a representation that the Company is not electing Cash Settlement to create
  actual or apparent trading activity in the Shares (or any security
  convertible into or exchangeable for the Shares) or to raise or depress or
  otherwise manipulate the price of the Shares (or any security convertible
  into or exchangeable for the Shares);

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (iii) 
  an acknowledgment by the Company that (A) any transaction by Bank
  following the Company’s election of Cash Settlement shall be made at Bank’s
  sole discretion and for Bank’s own account and (B) the Company does not
  have, and shall not attempt to exercise, any influence over how, when,
  whether or at what price to effect such transactions, including, without
  limitation, the price paid or received per Share pursuant to such transactions,
  or whether such transactions are made on any securities exchange or
  privately;

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (iv) 
  an agreement by the Company that, during the period commencing on the date of
  such Cash Settlement Notice and ending on the second Exchange Business Day
  following the last Settlement Date hereunder, without the prior written
  consent of Bank, the Company shall not, and shall cause its affiliates and
  affiliated purchasers (each as defined in Rule 10b-18 under the Exchange
  Act) not to, directly or indirectly (including, without limitation, by means
  of a derivative instrument), purchase, offer to purchase, place any bid or
  limit order that would effect a purchase of, or commence any tender offer
  relating to, any Shares or any security convertible into or exchangeable for
  the Shares in the public markets; and

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (v) a
  representation that the assets of Company at their fair valuation exceed the
  liabilities of Company, including contingent liabilities; the capital of
  Company is adequate to conduct the business of Company; and Company has the
  ability to pay its debts and obligations as such debts mature and does not
  intend to, or does not believe that it will, incur debt beyond its ability to
  pay as such debts mature.

  
	
   

  	
   

  	
   

  
	
  Cash
  Settlement:

  	
   

  	
  If
  Cash Settlement is applicable, on each Settlement Date, the Company shall
  deliver to Bank (to an account specified by Bank) the Net Share Settlement
  Amount for such Settlement Date.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  In
  addition to any other requirements set forth herein, the Company agrees that
  it shall not have the right to elect Cash Settlement if Bank notifies the
  Company that, in the reasonable judgment of Bank the election of Cash
  Settlement or any purchases of Shares that Bank (or its affiliates) might
  make in connection therewith based upon the advice of counsel and as a result
  of events occurring after the Trade Date, would raise material risks under
  applicable securities laws.

  
	
   

  	
   

  	
   

  
	
  Failure
  to Deliver:

  	
   

  	
  Inapplicable

  
	
   

  	
   

  	
   

  
	
  Other
  Applicable Provisions:

  	
   

  	
  The
  provisions of Sections 6.6, 6.7, 6.8, 6.9 and 6.10 of the Equity Definitions 

  



 


4

















 


	
   

  	
   

  	
  will be applicable, except that all references in such provisions to
  “Physically-Settled” shall be read as references to “Net Share Settled”. “Net
  Share Settled” in relation to any Warrant means that Net Share Settlement is
  applicable to that Warrant.

  
	
   

  	
   

  	
   

  
	
  3.Additional Terms applicable to the Transaction:

  
	
   

  
	
  Adjustments
  applicable to the Warrants:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Method
  of Adjustment:

  	
   

  	
  Calculation
  Agent Adjustment. For the avoidance of doubt, in making any adjustments under
  the Equity Definitions, the Calculation Agent may adjust the Strike Price,
  the Number of Warrants, the Daily Number of Warrants and the Warrant
  Entitlement. Notwithstanding the foregoing, any cash dividends or distributions
  on the Shares, whether or not extraordinary, shall be governed by
  Section 9(j) of this Confirmation and not by
  Section 9.1(c) of the Equity Definitions.

  
	
   

  	
   

  	
   

  
	
  Extraordinary
  Events applicable to the Transaction:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Consequence
  of Merger Events

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (a) Share-for-Share:

  	
   

  	
  Alternative
  Obligation; provided that the
  Calculation Agent will determine if the Merger Event affects the theoretical
  value of the Transaction and if so Bank in its sole discretion may elect to
  make adjustments to any of the Strike Price, the Number of Warrants, the
  Daily Number of Warrants, the Warrant Entitlement and any other term
  necessary to reflect the characteristics (including volatility, dividend
  practice, borrow cost and liquidity) of the New Shares. Notwithstanding the
  foregoing, Cancellation and Payment shall apply in the event the New Shares
  are not publicly traded on a United States national securities exchange or
  quoted on The NASDAQ Global Select Market or The NASDAQ Global Market (or
  their respective successors).

  
	
   

  	
   

  	
   

  
	
  (b) Share-for-Other:

  	
   

  	
  Cancellation
  and Payment

  
	
   

  	
   

  	
   

  
	
  (c) Share-for-Combined:

  	
   

  	
  Cancellation
  and Payment; provided that on
  or prior to the Merger Date the Bank may elect, in its sole discretion, to
  apply the consequence specified opposite “Share for Share” to that portion of
  the consideration that consists of New Shares (as determined by the
  Calculation Agent) and the consequence specified opposite “Share for-Other”
  to that portion of the consideration that consists of Other Consideration (as
  determined by the Calculation Agent).

  
	
   

  	
   

  	
   

  
	
  In
  the event of any “Tender Offers” (as defined in the 2002 ISDA Equity
  Derivatives Definitions (the “2002 Definitions”)), the following consequences, each
  as defined in the 2002 Definitions and including any relevant cross
  references, shall apply to such Tender Offers:

  
	
   

  
	
  (a) Share-for-Share:

  	
   

  	
  Modified
  Calculation Agent Adjustment (as defined in the 2002 Definitions and
  including any relevant cross references)

  
	
   

  	
   

  	
   

  
	
  (b) Share-for-Other:

  	
   

  	
  Modified
  Calculation Agent Adjustment (as defined in the 2002 Definitions and
  including any relevant cross references)

  
	
   

  	
   

  	
   

  
	
  (c) Share-for-Combined:

  	
   

  	
  Modified
  Calculation Agent Adjustment (as defined in the 2002 Definitions and
  including any relevant cross references)

  
	
   

  	
   

  	
   

  
	
  Nationalization
  or Insolvency:

  	
   

  	
  Cancellation
  and Payment

  
					



 


5

















 


	
  4.     Calculation Agent:

  	
   

  	
  Bank;
  provided that all determinations made
  by the Calculation Agent shall be made in good faith and in a commercially
  reasonable manner. Following any calculation by the Calculation Agent
  hereunder and a prior written request by Company, the Calculation Agent will
  provide to Company by e-mail to the e-mail address provided by Company in
  such prior written request a report (in a commonly used file format for the
  storage and manipulation of financial data) displaying in reasonable detail
  the basis for such calculation. For the avoidance of doubt, nothing in this
  provision will require Bank to provide its proprietary models to Company.

  



 


5.     Account Details:


 


(a)                                  Account
for payments to Company:


 


JPMorgan
Chase


New
York, NY


Fed
Wire:  021000021


Swift
/ BIC:  CHASUS33


CHIP
No:  0002


CHIP
UID:  280099


Account
name:  Textron Inc.


Account
No:  9101013655


 


Account for delivery of
Shares from Company:


 


To be provided by Company


 


(b)                                 Account
for payments to Bank:


 


Chase Manhattan Bank New York


For A/C Goldman, Sachs & Co.


A/C #930-1-011483


ABA:  021-000021


 


Account for delivery of Shares to Bank:


 


To be provided by Bank


 


6.     Offices:


 


The Office of
Company for the Transaction is: Inapplicable, Company is not a Multibranch
Party.


 


The Office of Bank for the
Transaction is:  New York


 


Goldman, Sachs & Co.


One
New York Plaza


New
York, New York 10004


 


7.     Notices: For purposes of
this Confirmation:


 


(a)                                  Address
for notices or communications to Company:


 


Textron Inc.


40
Westminster Street


Providence,
RI 02903


Attention:
Chief Financial Officer


 


6

















 


Telephone No.:     (401) 421-2800


Facsimile No.:       (401) 457-3533


 


Address for notices or
communications to Bank:


 


	
  To:

  	
  Goldman,
  Sachs & Co.

  
	
   

  	
  One New York Plaza

  
	
   

  	
  New York, NY 10004

  
	
  Attn:

  	
  Serge Marquié,

  
	
   

  	
  Equity Capital Markets

  
	
  Telephone:

  	
  (212) 902-9779

  
	
  Facsimile:

  	
  (917) 977-4253

  
	
  Email:

  	
  marqse@am.ibd.gs.com

  
	
   

  	
   

  
	
  With a copy to:

  	
   

  
	
   

  	
   

  
	
  Attn:

  	
  Vijay Culas

  
	
   

  	
  Equity Capital Markets

  
	
  Telephone:

  	
  (212) 902-6247

  
	
  Facsimile:

  	
  (212) 428-1898

  
	
  Email:

  	
  vijay.culas@gs.com

  



 


And email notification to the following address:


Eq-derivs-notifications@am.ibd.gs.com


 


8.             Representations and
Warranties of the Company


 


The
representations and warranties of the Company set forth in Article VII of
the Textron Inc. Underwriting Agreement Standard Provisions (Debt), dated as of
April 29, 2009, and incorporated by reference into the Underwriting
Agreement (the “Underwriting Agreement”), dated as
of April 29, 2009, between Company and J.P. Morgan Securities Inc. and
Goldman, Sachs & Co., as representatives of the underwriters party
thereto (the “Underwriters”), are true and
correct and are hereby deemed to be repeated to Bank as if set forth herein.
The Company hereby further represents and warrants to Bank that:


 


(a)                                  Company
has all necessary corporate power and authority to execute, deliver and perform
its obligations in respect of the Transaction; such execution, delivery and
performance have been duly authorized by all necessary corporate action on
Company’s part; and this Confirmation has been duly and validly executed and
delivered by Company and constitutes its valid and binding obligation,
enforceable against Company in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors’ rights and remedies generally and to general
principles of equity, including principles of commercial reasonableness, good
faith and fair dealing (whether considered in a proceeding at law or in equity)
and except that rights to indemnification and contribution hereunder may be
limited by federal or state securities laws or public policy relating thereto.


 


(b)                                 Neither
the execution and delivery of this Confirmation nor the incurrence or
performance of obligations of Company hereunder will conflict with or result in
a breach of the certificate of incorporation or by-laws (or any equivalent
documents) of Company, or any applicable law or regulation, or any order, writ,
injunction or decree of any court or governmental authority or agency, or any
agreement or instrument to which Company or (to the extent such agreement is
material to Company and its subsidiaries taken as a whole) any of its
subsidiaries is a party or by which Company or (to such extent) any of its
subsidiaries is bound or to which Company or (to such extent) any of its
subsidiaries is subject, or constitute a default under, or result in the
creation of any lien under, any such agreement or instrument.


 


7

















 


(c)                                  No
consent, approval, authorization, or order of, or filing with, any governmental
agency or body or any court is required in connection with the execution,
delivery or performance by Company of this Confirmation, except such as have
been obtained or made and such as may be required under the Securities Act of
1933, as amended (the “Securities Act”)
or state securities laws.


 


(d)                                 The
Shares initially issuable upon exercise of the Warrant by the net share
settlement method (the “Warrant Shares”)
have been reserved for issuance by all required corporate action of
Company.  The Warrant Shares have been
duly authorized and, when delivered against payment therefor (which may include
Net Share Settlement in lieu of cash) and otherwise as contemplated by the
terms of the Warrant following the exercise of the Warrant in accordance with
the terms and conditions of the Warrant, will be validly issued, fully-paid and
non-assessable, and the issuance of the Warrant Shares will not be subject to
any preemptive or similar rights.


 


(e)           The Company is an “eligible
contract participant” (as such term is defined in Section 1(a)(12) of the
Commodity Exchange Act, as amended.


 


(f)            The Company and each
of its affiliates is not, on the date hereof, in possession of any material
non-public information with respect to Company.


 


(g)                                 The
Company is a “qualified institutional buyer” as defined in Rule 144A under
the Securities Act.


 


(h)           The assets used by the
Company for its obligations under the Transaction (1) are not assets of
any “plan” (as such term is defined in Section 4975 of the Internal
Revenue Code (the “Code”))  subject
to Section 4975 of the Code or any “employee benefit plan” (as such term
is defined in Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”)) subject to Title I of
ERISA, and (2) do not constitute “plan assets” within the meaning of
Department of Labor Regulation 2510.3-101, 29 CFR Section 2510-3-101.


 


(i)            There is no law, rule,
regulation or regulatory order (collectively, “Adverse Laws”)
that, as a result of the ownership or control (whether direct, beneficial,
constructive or otherwise) of Shares by 
The Goldman Sachs Group, Inc. (“Bank Parent”)
or any person controlled directly or indirectly by Bank Parent, would give rise
to reporting or registration obligations or a requirement to obtain prior
approval from any person or entity on 
Bank Parent or any such controlled person or would result in a not
insignificant adverse effect on Bank Parent or any such controlled person,
other than any Adverse Law that applies to the ownership of equity positions
generally without regard to the nature of the issuer’s business (such as
Sections 13 and 16 of the Exchange Act) or any Adverse Law that applies solely
as a result of the business, identity, place of business or jurisdiction of
organization of the holder of the common stock (such as the Bank Holding Company
Act of 1956, as amended).


 


(j)            Other than Textron
Business Credit, Inc., which is a “Rhode Island financial institution,”
and Textron Financial Corporation, which is a “Rhode Island bank holding
company” but is not a bank holding company under the Bank Holding Company Act
of 1956, as amended, Company is not and does not control, directly or
indirectly, a bank or bank holding company or other financial institution
regulated under federal or state banking law.


 


9.                                       Other
Provisions:


 


(a)                                  Opinions. The Company shall deliver an
opinion of counsel (including an in-house lawyer of the Company), dated as of
the Trade Date, to Bank with respect to the matters set forth in Sections 8(a) through
(d) of this Confirmation.


 


(b)                                 No Reliance, etc. Each party represents
that (i) it is entering into the Transaction evidenced hereby as principal
(and not as agent or in any other capacity); (ii) neither the other party
or parties nor 


 


8

















 


any of its or their agents are acting as a
fiduciary for it; (iii) it is not relying upon any representations except
those expressly set forth in the Agreement or this Confirmation; (iv) it
has not relied on the other party or parties for any legal, regulatory, tax,
business, investment, financial, and accounting advice, and it has made its own
investment, hedging, and trading decisions based upon its own judgment and not
upon any view expressed by the other party or parties or any of its or their
agents; and (v) it is entering into the Transaction with a full
understanding of the terms, conditions and risks thereof and it is capable of
and willing to assume those risks.


 


(c)                                  Repurchase Notices. The Company shall,
on any day on which the Company effects any repurchase of Shares, promptly give
Bank a written notice of such repurchase (a “Repurchase Notice”) on
such day if following such repurchase, the quotient of (i) the sum of (A) the
Number of Shares for the Transaction and (B) the aggregate number of
Shares underlying any other warrants purchased by Bank from Company, if any, divided by (ii) the number of the
Company’s outstanding Shares (such quotient expressed as a percentage, the “Warrant
Equity Percentage”)  would
be (x) greater than 9.0% or (y) 0.5% greater than the Warrant Equity
Percentage included in the immediately preceding Repurchase Notice. The Company
agrees to indemnify and hold harmless Bank and its affiliates and their
respective officers, directors, employees, affiliates, advisors, agents and
controlling persons (each, an “Indemnified Person”)  from and against any and all losses
(including losses relating to Bank’s hedging activities as a consequence of
becoming, or of the risk of becoming, a Section 16 “insider”, including
without limitation, any forbearance from hedging activities or cessation of
hedging activities and any losses in connection therewith with respect to the
Transaction), claims, damages, judgments, liabilities and expenses (including
reasonable attorney’s fees), joint or several, which an Indemnified Person
actually may become subject to, as a result of the Company’s failure to provide
Bank with a Repurchase Notice on the day and in the manner specified in this
paragraph, and to reimburse, within 30 days, upon written request, each of such
Indemnified Persons for any reasonable legal or other expenses incurred in
connection with investigating, preparing for, providing testimony or other
evidence in connection with or defending any of the foregoing. If any suit,
action, proceeding (including any governmental or regulatory investigation),
claim or demand shall be brought or asserted against the Indemnified Person,
such Indemnified Person shall promptly notify the Company in writing, and the
Company, upon request of the Indemnified Person, shall retain counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified Person and
any others the Company may designate in such proceeding and shall pay the fees
and expenses of such counsel related to such proceeding. The Company shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Company agrees to indemnify any Indemnified Person from and
against any loss or liability by reason of such settlement or judgment. The
Company shall not, without the prior written consent of the Indemnified Person,
effect any settlement of any pending or threatened proceeding in respect of
which any Indemnified Person is or could have been a party and indemnity could
have been sought hereunder by such Indemnified Person, unless such settlement
includes an unconditional release of such Indemnified Person from all liability
on claims that are the subject matter of such proceeding on terms reasonably
satisfactory to such Indemnified Person. If the indemnification provided for in
this paragraph is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
Company under such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities. The remedies
provided for in this paragraph are not exclusive and shall not limit any rights
or remedies which may otherwise be available to any Indemnified Person at law
or in equity. The indemnity and contribution agreements contained in this
paragraph shall remain operative and in full force and effect regardless of the
termination of the Transaction.


 


(d)                                 Regulation M. The Company is not, on
the Trade Date or any Exercise Date, and will not be, on any day during the
period commencing on such Exercise Date and ending on the second Exchange
Business Day following the last Settlement Date with respect to such Exercise
Date, engaged in a 


 


9

















 


distribution,
as such term is used in Regulation M under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”),  of any securities of the Company, other than the
concurrent distributions of the USD 540,000,000 principal amount of 4.50%
Convertible Notes due 2013 and Shares being made on the date hereof. The
Company shall not, until the second Exchange Business Day immediately following
the Trade Date, engage in any such distribution.


 


(e)                                  No Manipulation. The Company is not
entering into the Transaction to create actual or apparent trading activity in
the Shares (or any security convertible into or exchangeable for the Shares) or
to raise or depress or otherwise manipulate the price of the Shares (or any
security convertible into or exchangeable for the Shares).


 


(f)                                    Board Authorization. The Company
represents that it is entering into the Transaction, solely for the purposes
stated in the board resolution authorizing the Transaction and in its public
disclosure. The Company further represents that there is no internal policy,
whether written or oral, of the Company that would prohibit the Company from
entering into any aspect of the Transaction, including, but not limited to, the
issuances of Shares to be made pursuant hereto.


 


(g)                                 Transfer or Assignment. The Company
may not transfer any of its rights or obligations under the Transaction without
the prior written consent of Bank. Bank may transfer or assign all or any
portion of its rights or obligations under the Transaction without consent of
the Company to any third party with a rating for its long term, unsecured and
unsubordinated indebtedness equal to or better than the lesser of (1) the
credit rating of Bank at the time of the transfer and (2) A- by Standard
and Poor’s Rating Group, Inc. or its successor (“S&P”), or A3 by Moody’s Investor
Service, Inc. (“Moody’s”) or,
if either S&P or Moody’s ceases to rate such debt, at least an equivalent
rating or better by a substitute agency rating mutually agreed by Company and
Bank. If, however, in Bank’s sole discretion, Bank is unable to effect a
transfer or assignment on pricing terms reasonably acceptable to Bank and
within a time period reasonably acceptable to Bank of a sufficient number of
Warrants to reduce (i) Bank Group’s “beneficial ownership” (within the
meaning of Section 13 or Section 16 of the Exchange Act and rules promulgated
thereunder) to equal to or less than 7.5%, (ii) the Warrant Equity
Percentage to equal to or less than 14.5%, and (iii) the Share Amount to
equal to or less than the Post-Effective Limit (if any applies), Bank may
designate any Exchange Business Day as an Early Termination Date with respect to
a portion (the “Terminated Portion”)  of the Transaction, such that (i) Bank
Group’s “beneficial ownership” following such partial termination will be equal
to or less than 7.5%, (ii) the Warrant Equity Percentage following such
partial termination will be equal to or less than 14.5%, and (iii) the
Share Amount following such partial termination will be equal to or less than
such Post-Effective Limit. In the event that Bank so designates an Early
Termination Date with respect to a portion of the Transaction, a payment shall
be made pursuant to Section 6 of the Agreement as if (i) an Early
Termination Date had been designated in respect of a Transaction having terms
identical to the Transaction and a Number of Warrants equal to the Terminated
Portion, (ii) the Company shall be the sole Affected Party with respect to
such partial termination and (iii) such Transaction shall be the only
Terminated Transaction (and, for the avoidance of doubt, the provision of
paragraph 9(n) shall apply to any amount that is payable by the Company to
Bank pursuant to this sentence).  “Bank Group” means Bank and each business unit of its
affiliates subject to aggregation with Bank under Section 13 or Section 16
of the Exchange Act and rules promulgated thereunder.  The “Share Amount”
as of any day is the number of Shares that Bank and any person whose ownership
position would be aggregated with that of Bank (Bank or any such person, a “Bank Person”) under any law, rule,
regulation or regulatory order that for any reason becomes applicable to
ownership of Shares after the Trade Date (“Applicable
Laws”), owns, beneficially owns, constructively owns, controls,
holds the power to vote or otherwise meets a relevant definition of ownership
of under the Applicable Laws, as determined by Bank in its reasonable
discretion. The “Post-Effective Limit” means (x) the
minimum number of Shares that would give rise to reporting or registration
obligations or other requirements (including obtaining prior approval from any
person or entity) of a Bank Person, or would result in an adverse effect on a
Bank Person, under the Applicable Laws, as determined by Bank in its reasonable
discretion, minus (y) 1% of
the number of Shares outstanding.  If at
any time Bank determines, in its 


 


10

















 


reasonable
opinion based upon advice of counsel, that as a result of Company’s direct or
indirect interest in, or direct or indirect control of, either Textron Business
Credit, Inc. or Textron Financial Corporation, any state or federal laws
are or have become applicable to Bank’s ownership of Shares, then the
Post-Effective Limit and the Share Amount shall be determined as set forth
above in the definitions of those terms, irrespective of whether or not such
laws have been applicable to ownership of Shares on or prior to the Trade Date.


 


(h)                                 Damages. Neither party shall be liable
under Section 6.10 of the Equity Definitions for special, indirect or
consequential damages, even if informed of the possibility thereof, except as specifically
set forth otherwise herein.


 


(i)                                     Early Unwind. In the event the sale of
Convertible Notes is not consummated with the Underwriters for any reason or
the Company fails to deliver to Bank opinions of counsel as required pursuant
to Section 9(a) by the close of business in New York on May 5,
2009 (or such later date as agreed upon by the parties, May 5, 2009 or
such later date the “Early Unwind Date”),  the Transaction shall automatically
terminate (the “Early Unwind”),  on
the Early Unwind Date and (i) the Transaction and all of the respective
rights and obligations of Bank and the Company under the Transaction shall be
cancelled and terminated and (ii) each party shall be released and
discharged by the other party from and agrees not to make any claim against the
other party with respect to any obligations or liabilities of the other party
arising out of and to be performed in connection with the Transaction either
prior to or after the Early Unwind Date; provided
that, other than to the extent the Early Unwind Date occurred as a
result of the breach of the Underwriting Agreement by the Underwriters, the
Company shall reimburse Bank, in cash or Shares, for any costs or expenses
(including market losses) relating to the unwinding of its or its affiliate’s
hedging activities in connection with the Transaction (including any loss or
cost incurred as a result of its terminating, liquidating, obtaining or
reestablishing any hedge or related trading position). The amount of any such
reimbursement shall be determined by Bank in its sole good faith discretion.
Bank shall notify the Company of such amount and the Company shall pay such
amount in immediately available funds or deliver Shares on the Early Unwind
Date. Bank and the Company represent and acknowledge to the other that, subject
to the proviso included in this paragraph, upon an Early Unwind, all
obligations with respect to the Transaction shall be deemed fully and finally
discharged.


 


(j)                                     Dividends. If at any time during the
period from but excluding the Trade Date, to and including the final Expiration
Date, an ex-dividend date for a cash dividend occurs with respect to the Shares
(an “Ex-Dividend
Date”),  and that
dividend is greater than the Regular Dividend on a per Share basis then the
Calculation Agent shall adjust the Strike Price, the Number of Warrants, the
Daily Number of Warrants and the Warrant Entitlement to preserve the fair value
of the Warrants to Bank after taking into account such dividend. “Regular
Dividend”  shall
mean USD 0.02 per Share per quarter.


 


(k)                                  Reserved.


 


(l)                                     Additional Provisions.


 


(i)                                     The
first paragraph of Section 9.1(c) of the Equity Definitions is hereby
amended to read as follows: “(c) If “Calculation Agent Adjustment” is
specified as the method of adjustment in the Confirmation of a Share Option
Transaction, then following the declaration by the Issuer of the terms of any
Potential Adjustment Event, the Calculation Agent will determine whether such
Potential Adjustment Event has a material effect on the theoretical value of
the relevant Shares or Warrants and, if so, will (i) make appropriate
adjustment(s), if any, to any one or more of:’ and, the sentence immediately
preceding Section 9.1(c)(ii) is hereby amended by deleting the words “diluting
or concentrative”.


 


(ii)                                  Section 9.1(e)(vi) of
the Equity Definitions is hereby amended by deleting the words


 


11
















 


“other similar”
between “any” and “event”; deleting the words “diluting or concentrative” and
replacing them with “material”; and adding the following words at the end of
the sentence “or Warrants”.


 


(iii)          Section 9.6(a)(ii) of
the Equity Definitions is hereby amended by (1) deleting from the third
line thereof the word “or” after the word “official” and inserting a comma
therefor, and (2) deleting the period at the end of subsection (ii) thereof
and inserting the following words therefor “or (C) at Bank’s option, the
occurrence of any of the events specified in Section 5(a)(vii)(1) through
(9) of the Agreement with respect to that Issuer.”


 


(iv)                              Notwithstanding
Section 9.7 of the Equity Definitions, everything in the first paragraph
of Section 9.7(b) of the Equity Definitions after the words “Calculation
Agent” in the third line through the remainder of such Section 9.7 shall
be deleted and replaced with the following:


 


“based on an
amount representing the Calculation Agent’s determination of the fair value to
Buyer of an option with terms that would preserve for Buyer the economic
equivalent of any payment or delivery (assuming satisfaction of each applicable
condition precedent) by the parties in respect of the relevant Transaction that
would have been required after that date but for the occurrence of the Option
Value Event.”


 


(v)                                 Notwithstanding
anything to the contrary in this Confirmation, upon the occurrence of one of
the following events, with respect to the Transaction or any portion of the
Transaction, (1) Bank shall have the right to designate such event as an
Additional Termination Event and designate an Early Termination Date pursuant
to Section 6(b) of the Agreement, and (2) the Company shall be
deemed the sole Affected Party and the Transaction or such portion of the
Transaction shall be deemed the sole Affected Transaction:


 


(A)                              A
“person” or “group” within the meaning of Section 13(d) of the
Exchange Act other than the Company, any of its subsidiaries or its or their
employee benefit plans, files a Schedule TO or any schedule, form or report
under the Exchange Act disclosing that such person or group has become the
direct or indirect ultimate “beneficial owner”, as defined in Rule 13d-3
under the Exchange Act, of the common equity of the Company representing more
than 50% of the voting power of such common equity.


 


(B)           Consummation of (A) any recapitalization,
reclassification or change of the Shares (other than changes resulting from a
subdivision or combination) as a result of which the Shares would be converted
into, or exchanged for, stock, other securities, other property or assets or (B) any
share exchange, consolidation or merger of the Company pursuant to which the
Shares will be converted into cash, securities or other property or any conveyance,
transfer, sale, lease or other disposition in one transaction or a series of
transactions of all or substantially all of the consolidated assets of the
Company and its subsidiaries, taken as a whole, to any person other than one of
its subsidiaries; provided, however, that
a transaction where the holders of more than 50% of all classes of common
equity of the Company immediately prior to such transaction own, directly or
indirectly, more than 50% of all classes of common equity of the continuing or
surviving corporation or transferee immediately after such event shall not be
an Additional Termination Event;


 


(C)                                If
(I) the directors who were members of Company’s board of directors on the
Trade Date or (II) the directors who become members of Company’s board of
directors subsequent to that date and whose election, appointment or nomination
for election by Company stockholders is duly approved by a majority of the 


 


12

















 


continuing
directors on Company’s board of directors at the time of such approval, either
by a specific vote or by approval of the proxy statement issued by Company on
behalf of its entire board of directors in which such individual is named as
nominee for director, cease to constitute at least a majority of Company’s
board of directors.


 


(D)          The Company defaults on
any indebtedness with an original aggregate principal amount of at least USD
125 million and such default results in any principal and interest on such
indebtedness becoming, or becoming capable at such time of being declared,
immediately due and payable.


 


(E)           At any time during the
period from and including the Trade Date, to and including the final Expiration
Date, the Shares cease to be listed or quoted on the Exchange for any reason
(other than a Merger Event as a result of which the shares of common stock
underlying the Warrants are listed or quoted on the New York Stock Exchange,
the NASDAQ Global Market or the NASDAQ Global Select Market (or their
respective successors) (each, a “Successor Exchange”))  and are not immediately re-listed
or quoted as of the date of such de-listing on a Successor Exchange.


 


(F)           On or after the Trade
Date, a Change in Law (as defined in the 2002 Equity Derivatives Definitions as
published by ISDA (the “2002 Definitions”),
with any reference in such definition to “Shares” being replaced with
references to “Hedge Position(s)” and without regard to clause (Y) of such
definition) shall have occurred.


 


Notwithstanding
the forgoing, a transaction set forth in clauses (A) or (B) above
will not constitute an Additional Termination Event if at least 90% of the
consideration, excluding cash payments for fractional shares, in such
transaction or transactions consists of shares of common stock listed on a national
securities exchange, including the New York Stock Exchange, which will be so
listed when issued or exchanged in connection with such transaction or
transactions.


 


For the avoidance of doubt, in determining
the Close-out Amount pursuant to Section 6(e) of the Agreement, the
Determining Party shall act in good faith and a commercially reasonable manner,
and, upon request, the Determining Party shall provide to the other party a
statement showing in reasonable detail, such calculations (including any quotations,
market data or information from internal sources used in making such
calculation); provided that the Determining
Party shall not be obligated to disclose any proprietary model used for such
calculation.


 


(m)                               No Collateral or Setoff. Notwithstanding
any provision of the Agreement or any other agreement between the parties to
the contrary, the obligations of the Company hereunder are not secured by any
collateral. Each party waives any and all rights it may have to set-off
delivery or payment obligations it owes to the other party under the
Transaction against any delivery or payment obligations owed to it by the other
party, whether arising under the Agreement, under any other agreement between
the parties hereto, by operation of law or otherwise. Notwithstanding anything
to the contrary in the Equity Definitions, Bank shall have no obligation
hereunder or under the Agreement to make any delivery or payment to the
Company.


 


(n)                                 Alternative Calculations and Payment on Early
Termination and on Certain Extraordinary  Events. If, in
respect of the Transaction, an amount is payable by the Company to Bank, (i) pursuant
to Section 9.7 of the Equity Definitions or Section 12.3 of the 2002
Definitions (except in the event of a Nationalization, Insolvency, Tender Offer
or Merger Event, in each case, in which the consideration to be paid to holders
of Shares consists solely of cash) or (ii) pursuant to Sections 6(d) and
6(e) of the Agreement (except in the event of an Event of Default in which
the Company is the Defaulting Party or a Termination Event in which the Company
is the Affected


 


13

















 


Party, other
than an Event of Default of the type described in Section 5(a)(iii), (v),
(vi), (vii) or (viii) of the Agreement or a Termination Event of the
type described in Section 5(b)(i), (ii), (iii), (iv), (v) or (vi) of
the Agreement in each case that resulted from an event or events outside the
Company’s control) (a “Payment Obligation”),  the Company may, in its sole discretion,
satisfy any such Payment Obligation by the Share Termination Alternative (as
defined below) and shall give irrevocable telephonic notice to Bank, confirmed
in writing within one Currency Business Day, no later than 12:00 p.m. New
York local time on the Merger Date, the Tender Offer Date, the date of the
occurrence of the Nationalization or Insolvency, or Early Termination Date, as
applicable; provided that if the
Company does not validly elect to satisfy its Payment Obligation by the Share
Termination Alternative, Bank shall have the right to require the Company to
satisfy its Payment Obligation by the Share Termination Alternative,
notwithstanding the Company’s election to the contrary.


 


	
  Share Termination Alternative:

  	
   

  	
  Applicable and means that the Company shall deliver to Bank the Share
  Termination Delivery Property on the date (the “Share Termination Payment Date”)  when the Payment Obligation would
  otherwise be due, subject to paragraph (p)(i) below, in satisfaction,
  subject to paragraph (p)(ii) below, of the Payment Obligation in the
  manner reasonably requested by Bank free of payment.

  
	
   

  	
   

  	
   

  
	
  Share Termination Delivery Property:

  	
   

  	
  A number of Share Termination Delivery Units, as calculated by the
  Calculation Agent, equal to the Payment Obligation divided by the Share
  Termination Unit Price. The Calculation Agent shall adjust the Share
  Termination Delivery Property by replacing any fractional portion of a
  security therein with an amount of cash equal to the value of such fractional
  security based on the values used to calculate the Share Termination Unit
  Price.

  
	
   

  	
   

  	
   

  
	
  Share Termination Unit Price:

  	
   

  	
  The value to Bank of property contained in one Share Termination
  Delivery Unit on the date such Share Termination Delivery Units are to be
  delivered as Share Termination Delivery Property, as determined by the
  Calculation Agent in its discretion by commercially reasonable means and
  notified by the Calculation Agent to the Company at the time of notification
  of the Payment Obligation. In the case of a Private Placement of Share
  Termination Delivery Units that are Restricted Shares (as defined below) as
  set forth in paragraph (p)(i) below, the Share Termination Unit Price
  shall be determined by the discounted price applicable to such Share
  Termination Delivery Units. In the case of a Registration Settlement of Share
  Termination Delivery Units that are Restricted Shares (as defined below) as
  set forth in paragraph (p)(ii) below, the Share Termination Unit Price
  shall be the Settlement Price on the Merger Date, the Tender Offer Date, the
  date of the occurrence of the Nationalization or Insolvency, or Early
  Termination Date, as applicable.

  
	
   

  	
   

  	
   

  
	
  Share Termination Delivery Unit:

  	
   

  	
  In the case of a Termination Event or Event of Default, one Share or,
  in the case of Nationalization, Insolvency, Tender Offer or Merger Event, a
  unit consisting of the number or amount of each type of property received by
  a holder of one Share (without consideration of any requirement to pay cash
  or other consideration in lieu of 

  



 


14

















 


	
   

  	
   

  	
  fractional amounts of any securities) in such Nationalization,
  Insolvency, Tender Offer or Merger Event. If such Merger Event involves a
  choice of consideration to be received by holders, such holder shall be
  deemed to have elected to receive the maximum possible amount of cash.

  
	
   

  	
   

  	
   

  
	
  Failure to Deliver:

  	
   

  	
  Inapplicable

  
	
   

  	
   

  	
   

  
	
  Other applicable provisions:

  	
   

  	
  If Share Termination Alternative is applicable, the provisions of
  Sections 6.6, 6.7, 6.8, 6.9 and 6.10 (as modified above) of the Equity
  Definitions will be applicable, except that all references in such provisions
  to “Physically-Settled” shall be read as references to “Share Termination
  Settled” and all references to “Shares” shall be read as references to “Share
  Termination Delivery Units”. “Share Termination Settled” in relation to the
  Transaction means that Share Termination Alternative is applicable to the
  Transaction.

  



 


(o)                                 Registration/Private Placement Procedures.
If, in the reasonable opinion of Bank based upon advice of counsel,
following any delivery of Shares or Share Termination Delivery Property to Bank
hereunder, such Shares or Share Termination Delivery Property would be in the
hands of Bank subject to any applicable restrictions with respect to any
registration or qualification requirement or prospectus delivery requirement
for such Shares or Share Termination Delivery Property pursuant to any
applicable federal or state securities law (including, without limitation, any
such requirement arising under Section 5 of the Securities Act as a result
of such Shares or Share Termination Delivery Property being “restricted
securities”, as such term is defined in Rule 144 under the Securities Act,
or as a result of the sale of such Shares or Share Termination Delivery Property
being subject to paragraph (c) of Rule 145 under the Securities Act)
(such Shares or Share Termination Delivery Property, “Restricted Shares”),  then delivery of such Restricted
Shares shall be effected pursuant to either clause (i) or (ii) below
at the election of the Company, unless waived by Bank. Notwithstanding the
foregoing, solely in respect of any Daily Number of Warrants exercised or
deemed exercised on any Expiration Date, the Company shall elect, prior to the
first Settlement Date for the First Expiration Date, a Private Placement
Settlement or Registration Settlement for all deliveries of Restricted Shares
for all such Expiration Dates which election shall be applicable to all
Settlement Dates for such Daily Number of Warrants and the procedures in clause
(i) or clause (ii) below shall apply for all such delivered
Restricted Shares on an aggregate basis commencing after the final Settlement
Date for such Daily Number of Warrants. The Calculation Agent shall make
reasonable adjustments to settlement terms and provisions under this
Confirmation to reflect a single Private Placement or Registration Settlement
for such aggregate Restricted Shares delivered hereunder.


 


(i)                                     If
the Company elects to settle the Transaction pursuant to this clause (i) (a
“Private
Placement Settlement”),  then
delivery of Restricted Shares by the Company shall be effected pursuant to
customary private placement procedures with respect to such Restricted Shares
of similar size in form and substance reasonably acceptable to Bank; provided that the Company may not elect a
Private Placement Settlement if, on the date of its election, it has taken, or
caused to be taken, any action that would make unavailable either the exemption
pursuant to Section 4(2) of the Securities Act for the sale by the
Company to Bank (or any affiliate designated by Bank) of the Restricted Shares
or the exemption pursuant to Section 4(1) or Section 4(3) of
the Securities Act for resales of the Restricted Shares by Bank (or any such
affiliate of Bank). The Private Placement Settlement of such Restricted Shares
shall include customary representations, covenants, blue sky and other
governmental filings and/or registrations, indemnities to Bank, due diligence
rights (for Bank or any designated buyer of the Restricted Shares by Bank), 


 


15

















 


opinions and
certificates, and such other documentation as is customary for private
placement agreements with respect to companies of comparable size, maturity and
line of business, all reasonably acceptable to Bank. In the case of a Private
Placement Settlement, Bank shall determine the appropriate discount to the
Share Termination Unit Price (in the case of settlement of Share Termination
Delivery Units pursuant to paragraph (o) above) or any Settlement Price
(in the case of settlement of Shares pursuant to Section 2 above)
applicable to such Restricted Shares in a commercially reasonable manner and
appropriately adjust the amount of such Restricted Shares to be delivered to
Bank hereunder; provided that in
no event such number shall be greater than 1.8 times the Number of Shares (the “Maximum
Amount”).  Notwithstanding
the Agreement or this Confirmation, the date of delivery of such Restricted
Shares shall be the Exchange Business Day following notice by Bank to the
Company, of such applicable discount and the number of Restricted Shares to be
delivered pursuant to this clause (i). For the avoidance of doubt, delivery of
Restricted Shares shall be due as set forth in the previous sentence and not be
due on the Share Termination Payment Date (in the case of settlement of Share
Termination Delivery Units pursuant to paragraph (o) above) or on the
Settlement Date for such Restricted Shares (in the case of settlement in Shares
pursuant to Section 2 above).


 


(ii)                                  If
the Company elects to settle the Transaction pursuant to this clause (ii) (a
“Registration
Settlement”),  then
the Company shall promptly (but in any event no later than the beginning of the
Resale Period) file and use its reasonable best efforts to make effective under
the Securities Act a registration statement or supplement or amend an
outstanding registration statement in form and substance reasonably
satisfactory to Bank, to cover the resale of such Restricted Shares in
accordance with customary resale registration procedures, including covenants,
conditions, representations, underwriting discounts (if applicable),
commissions (if applicable), indemnities due diligence rights, opinions and
certificates, and such other documentation as is customary for equity resale
underwriting agreements with respect to companies of comparable size, maturity
and line of business, all reasonably acceptable to Bank. If Bank, in its sole
reasonable discretion, is not satisfied with such procedures and documentation
Private Placement Settlement shall apply. If Bank is satisfied with such
procedures and documentation, it shall sell the Restricted Shares pursuant to
such registration statement during a period (the “Resale Period”)  commencing on the Exchange Business
Day following delivery of such Restricted Shares (which, for the avoidance of
doubt, shall be (x) any Settlement Date in the case of an exercise of
Warrants prior to the First Expiration Date pursuant to Section 2 above, (y) the
Share Termination Payment Date in case of settlement in Share Termination
Delivery Units pursuant to paragraph (o) above or (z) the Settlement
Date in respect of the final Expiration Date for all Daily Number of Warrants)
and ending on the earliest of (i) the Exchange Business Day on which Bank
completes the sale of all Restricted Shares or, in the case of settlement of
Share Termination Delivery Units, a sufficient number of Restricted Shares so
that the realized net proceeds of such sales exceed the Payment Obligation (as
defined above), (ii) the date upon which all Restricted Shares have been
sold or transferred pursuant to Rule 144 (or similar provisions then in
force) or Rule 145(d)(2) (or any similar provision then in force)
under the Securities Act and (iii) the date upon which all Restricted
Shares may be sold or transferred by a non-affiliate pursuant to Rule 144
(or any similar provision then in force) or Rule 145(d)(2) (or any
similar provision then in force) under the Securities Act. If the Payment Obligation
exceeds the realized net proceeds from such resale, the Company shall transfer
to Bank by the open of the regular trading session on the Exchange on the
Exchange Trading Day immediately following the last day of the Resale Period
the amount of such excess (the “Additional Amount”)  in cash or in a number of Shares (“Make-whole
Shares”)  in an
amount that, based on the Settlement Price on the last day of the Resale Period
(as if such day was the “Valuation Date” for purposes of computing such Settlement
Price), has a dollar value equal to the Additional Amount. The Resale Period
shall continue to enable the sale of the Make-whole Shares. If the Company
elects 


 


16

















 


to pay the
Additional Amount in Shares, the requirements and provisions for Registration
Settlement shall apply. This provision shall be applied successively until the
Additional Amount is equal to zero. In no event shall the Company deliver a
number of Restricted Shares greater than the Maximum Amount.


 


(iii)          Without limiting the
generality of the foregoing, the Company agrees that any Restricted Shares
delivered to Bank, as purchaser of such Restricted Shares, (i) may be
transferred by and among Bank and its affiliates and the Company shall effect
such transfer without any further action by Bank and (ii) after the period
of 6 months from the Trade Date (or 1 year from the Trade Date if, at such
time, informational requirements of Rule 144(c) are not satisfied
with respect to the Company) has elapsed after any Settlement Date for such
Restricted Shares, the Company shall promptly remove, or cause the transfer
agent for such Restricted Shares to remove, any legends referring to any such
restrictions or requirements from such Restricted Shares upon request by Bank
(or such affiliate of Bank) to the Company or such transfer agent, without any
requirement for the delivery of any certificate, consent, agreement, opinion of
counsel, notice or any other document, any transfer tax stamps or payment of any
other amount or any other action by Bank (or such affiliate of Bank).


 


If (x) the Company shall
fail to effectuate the Private Placement Settlement as set forth in clause (i) or
(y) the Company shall fail to effectuate the Registration Settlement as
set forth in clause (ii) and the Company shall fail to effectuate the
Private Placement Settlement following its failure to effectuate the
Registration Settlement, then either the failure set forth in clause (x) or
the failure set forth in clause (y) shall constitute an Event of Default
with respect to which the Company shall be the Defaulting Party.


 


(p)                                 Limit on Beneficial Ownership. Notwithstanding
anything to the contrary in the Agreement or this Confirmation, Bank may not exercise any Warrant
hereunder, have the “right to acquire” (within the meaning of NYSE Rule 312.04(g))
Shares upon exercise of any Warrant hereunder or be entitled to take delivery
of any Shares deliverable hereunder, and Automatic Exercise shall not apply
with respect to any Warrant hereunder if, upon receipt of such Shares, (i) the Share
Amount would exceed the Post-Effective Limit, or (ii) the “beneficial ownership” (within the meaning
of Section 13 or Section 16 of the Exchange Act and the rules promulgated
thereunder) of Shares by Bank Group would be equal to or greater than the
lesser of (A) 4.5% of the then outstanding Shares and (B) 12,013,276
Shares (the “Threshold Number of Shares”).  Any purported delivery hereunder shall be void and have no effect to the
extent (but only to the extent) that, after such delivery, (i) the Share
Amount would exceed the Post-Effective Limit, or (ii) Bank Group would
directly or indirectly so beneficially own in excess of the Threshold Number of
Shares.  If any delivery owed to
Bank hereunder is not made, in whole or in part, as a result of this provision,
the Company’s obligation to make such delivery shall not be extinguished and
the Company shall make such delivery as promptly as practicable after, but in
no event later than one Exchange Business Day after, Bank gives notice to the
Company that such delivery would not result in (i) the Share Amount
exceeding the Post-Effective Limit, or (ii) Bank Group directly or
indirectly beneficially owning in excess of the Threshold Number of Shares.


 


(q)                                 Share Deliveries. The Company
acknowledges and agrees that, to the extent the holder of this Warrant is not
then an affiliate and has not been an affiliate for 90 days (it being
understood that Bank will not be considered an affiliate under this paragraph
solely by reason of its receipt of Shares pursuant to the Transaction), and
otherwise satisfies all holding period and other requirements of Rule 144
of the Securities Act applicable to it, any delivery of Shares or Share
Termination Delivery Property hereunder at any time after 6 months from the
Trade Date (or 1 year from the Trade Date if, at such time, informational
requirements of Rule 144(c) are not satisfied with respect to the
Company) shall be eligible for resale under Rule 144 of the Securities Act
and the Company agrees to promptly remove, or cause the transfer agent for such
Shares or Share Termination Delivery Property, to remove, any legends referring
to any restrictions on resale under the Securities Act from the Shares or Share
Termination Property. The Company 


 


17

















 


further agrees
that any delivery of Shares or Share Termination Delivery Property prior to the
date that is 6 months from the Trade Date (or 1 year from the Trade Date if, at
such time, informational requirements of Rule 144(c) are not
satisfied with respect to the Company), may be transferred by and among Bank
and its affiliates and the Company shall effect such transfer without any
further action by Bank. Notwithstanding anything to the contrary herein, the
Company agrees that any delivery of Shares or Share Termination Delivery
Property shall be effected by book-entry transfer through the facilities of
DTC, or any successor depositary, if at the time of delivery, such class of
Shares or class of Share Termination Delivery Property is in book-entry form at
DTC or such successor depositary. Notwithstanding anything to the contrary
herein, to the extent the provisions of Rule 144 of the Securities Act or
any successor rule are amended, or the applicable interpretation thereof
by the Securities and Exchange Commission or any court change after the Trade
Date, the agreements of the Company herein shall be deemed modified to the
extent necessary, in the opinion of outside counsel of the Company, to comply
with Rule 144 of the Securities Act, as in effect at the time of delivery
of the relevant Shares or Share Termination Property.


 


(r)                                    Hedging Disruption Event. The
occurrence of a Hedging Disruption Event will constitute an Additional
Termination Event under the Agreement permitting Bank to terminate the
Transaction or any portion of the Transaction, with the Company as the sole
Affected Party and the Transaction or such portion of the Transaction as the
sole Affected Transaction.


 


“Hedging Disruption Event”  means with respect to Bank,
as determined in its reasonable discretion, the inability or impracticality,
due to market illiquidity, illegality, lack of hedging transactions or credit
worthy market participants or other similar events, to establish, re-establish
or maintain any transactions necessary or advisable to hedge, directly or
indirectly, the equity price risk of entering into and performing under the
Transaction on terms including costs reasonable to Bank or an affiliate in its
reasonable discretion, including (x) the event that at any time Bank
reasonably concludes that it or any of its affiliates are unable to establish,
re-establish or maintain a full hedge of its position in respect of the
Transaction through share borrowing arrangements on terms including costs
deemed reasonable to Bank in its reasonable discretion and (y) the event
where upon Bank or its affiliate would incur a materially increased cost in
establishing, re-establishing or maintaining a full hedge of the equity price
risk (including without limitation the volatility risk) in respect of the
Transaction directly or indirectly as a result of actions taken by the Company.
For the avoidance of doubt, the parties hereto agree that if (i) Bank
reasonably determines that it is unable to borrow Shares to hedge its exposure
with respect to the Transaction at a rate of borrowing that is less than 100
basis points or (ii) Bank, in its good faith reasonable judgment,
determines that it cannot hedge its obligations pursuant to the Transaction in
the public market without registration under the Securities Act or as a result
of any legal, regulatory or self-regulatory requirements or related policies
and procedures (whether or not such requirements, policies or procedures are
imposed by law or have been voluntarily adopted by Bank), an Additional
Termination Event under the Agreement shall occur with the Company as the sole
Affected Party and the Transaction as the sole Affected Transaction.


 


(s)                                  Maximum Share Delivery. Notwithstanding
any other provision of this Confirmation, the Agreement or the Equity
Definitions, in no event will the Company be required to deliver more than the
Maximum Amount of Shares in the aggregate to Bank in connection with the
Transaction, subject to the provisions below regarding Deficit Shares.  In the event the Company shall not have
delivered the full number of Shares otherwise due in connection with the
Transaction as a result of the first sentence of this paragraph relating to the
Maximum Amount (such deficit, the “Deficit Shares”),
the Company shall be continually obligated to deliver, from time to time until
the full number of Deficit Shares have been delivered pursuant to this
paragraph, Shares when, and to the extent, that (i) Shares are
repurchased, acquired or otherwise received by the Company or any of its
subsidiaries after the Trade Date (whether or not in exchange for cash, fair
value or any other consideration), (ii) authorized and unissued Shares
reserved for issuance in respect of other transactions prior to such date which
prior to the relevant delivery date become no longer so reserved and (iii) the
Company additionally authorizes any unissued Shares that are not reserved 


 


18

















 


for other
transactions. The Company shall immediately notify Bank of the occurrence of
any of the foregoing events (including the aggregate number of Shares subject
to clause (i), (ii) or (iii) and the corresponding number of Shares
to be delivered) and promptly deliver the Applicable Percentage of such
aggregate number of Shares thereafter.


 


(t)                                    Right to Extend. Bank may postpone, in
whole or in part, any Expiration Date or any other date of valuation or
delivery with respect to some or all of the relevant Warrants (in which event
the Calculation Agent shall make appropriate adjustments to the Daily Number of
Warrants with respect to one or more Expiration Dates) if Bank determines, in
its commercially reasonable judgment, that such extension is reasonably
necessary or appropriate to preserve Bank’s hedging or hedge unwind activity
hereunder in light of existing liquidity conditions or to enable Bank to effect
purchases of Shares in connection with its hedging, hedge unwind or settlement
activity hereunder in a manner that would, if Bank were Issuer or an affiliated
purchaser of Issuer, be in compliance with applicable legal, regulatory or
self-regulatory requirements, or with related policies and procedures
applicable to Bank.


 


(u)                                 Status of Claims in Bankruptcy. Bank
acknowledges and agrees that this Confirmation is not intended to convey to
Bank rights with respect to the Transaction that are senior to the claims of
common stockholders of the Company in any U.S. bankruptcy proceedings of the
Company; provided that nothing
herein shall limit or shall be deemed to limit Bank’s right to pursue remedies
in the event of a breach by the Company of its obligations and agreements with
respect to the Transaction; provided,
further, that nothing herein shall limit or shall be deemed to limit
Bank’s rights in respect of any transactions other than the Transaction.


 


(v)                                 Governing Law; Exclusive Jurisdiction.
For the Agreement and this Confirmation, New York law (without reference to
choice of law doctrine to the extent inconsistent with choice of New York
law).  Section 13(b) of the
Agreement is hereby amended by (i) deleting the words “non-exclusive” in Section 13(b)(i)(2) and
replacing them with the word “exclusive”, and (ii)  inserting after the
word “law” in Section 13(b)(iii) the words “and subject to Section 13(b)(i)(2)”.


 


(w)                               Waiver of Jury Trial. Each party
waives, to the fullest extent permitted by applicable law, any right it may
have to a trial by jury in respect of any suit, action or proceeding relating
to the Transaction. Each party (i) certifies that no representative, agent
or attorney of the other party has represented, expressly or otherwise, that
such other party would not, in the event of such a suit, action or proceeding,
seek to enforce the foregoing waiver and (ii) acknowledges that it and the
other party have been induced to enter into the Transaction, as applicable, by,
among other things, the mutual waivers and certifications provided herein.


 


(x)                                   Tax Disclosure. Effective from the
date of commencement of discussions concerning the Transaction, the Company and
each of its employees, representatives, or other agents may disclose to any and
all persons, without limitation of any kind, the tax treatment and tax
structure of the Transaction and all materials of any kind (including opinions
or other tax analyses) that are provided to the Company relating to such tax
treatment and tax structure.


 


(y)                                 Securities Contract; Swap Agreement. The
parties hereto intend for:  (a) the
Transaction to be a “securities contract” and a “swap agreement” and the
Agreement to be a “master netting agreement”, in each case as defined in the
Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy
Code”), and the parties hereto to be entitled to the protections
afforded by, among other Sections, Sections 362(b)(6), 362(b)(7), 362(b)(27),
362(o), 546(e), 546(g), 555 and546(j), 548(d)(2), 555, 560 and 561 of the
Bankruptcy Code; (b) a party’s right to liquidate the Transaction and to
exercise any other remedies upon the occurrence of any Event of Default or
Termination Event under the Agreement with respect to the other party or any
Extraordinary Event that results in the termination or cancellation of any
Transaction to constitute a “contractual right” as described in the Bankruptcy
Code; and (c) each payment and delivery of cash, securities or other
property hereunder to constitute a “margin payment” or “settlement payment” and
a “transfer” as defined in the Bankruptcy Code.


 


19

















 


Counterparty hereby
agrees (a) to check this Confirmation carefully and immediately upon
receipt so that errors or discrepancies can be promptly identified and
rectified and (b) to confirm that the foregoing (in the exact form
provided by Bank) correctly sets forth the terms of the agreement between Bank
and Counterparty with respect to the Transaction, by manually signing this
Confirmation or this page hereof as evidence of agreement to such terms
and providing the other information requested herein and immediately returning
an executed copy to Equity Derivatives Documentation Department, Facsimile No. (212)
428-1980/83.


 


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  GOLDMAN,
  SACHS & CO.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Daniel W. Kopper

  
	
   

  	
   

  	
  Authorized
  Signatory

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Accepted and confirmed

  	
   

  	
   

  
	
  as of the
  Trade Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  TEXTRON
  INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Mary F. Lovejoy

  	
   

  	
   

  
	
  Authorized Signatory

  	
   

  	
   

  
	
  Name: Mary F. Lovejoy

  	
   

  	
   

  
					



 

















 


Schedule A


 


For each Expiration Date, the
Daily Number of Warrants is set forth below.


 




	
  Expiration
  Date

  	
   

  	
  Daily Number of Warrants

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  August 1,
  2013

  	
   

  	
  457,143

  	
   

  
	
  August 2,
  2013

  	
   

  	
  457,143

  	
   

  
	
  August 5,
  2013

  	
   

  	
  457,143

  	
   

  
	
  August 6,
  2013

  	
   

  	
  457,143

  	
   

  
	
  August 7,
  2013

  	
   

  	
  457,143

  	
   

  
	
  August 8,
  2013

  	
   

  	
  457,143

  	
   

  
	
  August 9,
  2013

  	
   

  	
  457,143

  	
   

  
	
  August 12,
  2013

  	
   

  	
  457,143

  	
   

  
	
  August 13,
  2013

  	
   

  	
  457,143

  	
   

  
	
  August 14,
  2013

  	
   

  	
  457,143

  	
   

  
	
  August 15,
  2013

  	
   

  	
  457,143

  	
   

  
	
  August 16,
  2013

  	
   

  	
  457,143

  	
   

  
	
  August 19,
  2013

  	
   

  	
  457,143

  	
   

  
	
  August 20,
  2013

  	
   

  	
  457,143

  	
   

  
	
  August 21,
  2013

  	
   

  	
  457,143

  	
   

  
	
  August 22,
  2013

  	
   

  	
  457,143

  	
   

  
	
  August 23,
  2013

  	
   

  	
  457,143

  	
   

  
	
  August 26,
  2013

  	
   

  	
  457,143

  	
   

  
	
  August 27,
  2013

  	
   

  	
  457,143

  	
   

  
	
  August 28,
  2013

  	
   

  	
  457,143

  	
   

  
	
  August 29,
  2013

  	
   

  	
  457,143

  	
   

  
	
  August 30,
  2013

  	
   

  	
  457,143

  	
   

  
	
  September 3,
  2013

  	
   

  	
  457,143

  	
   

  
	
  September 4,
  2013

  	
   

  	
  457,143

  	
   

  
	
  September 5,
  2013

  	
   

  	
  457,143

  	
   

  
	
  September 6,
  2013

  	
   

  	
  457,143

  	
   

  
	
  September 9,
  2013

  	
   

  	
  457,143

  	
   

  
	
  September 10,
  2013

  	
   

  	
  457,143

  	
   

  
	
  September 11,
  2013

  	
   

  	
  457,143

  	
   

  
	
  September 12,
  2013

  	
   

  	
  457,143

  	
   

  
	
  September 13,
  2013

  	
   

  	
  457,143

  	
   

  
	
  September 16,
  2013

  	
   

  	
  457,143

  	
   

  
	
  September 17,
  2013

  	
   

  	
  457,143

  	
   

  
	
  September 18,
  2013

  	
   

  	
  457,143

  	
   

  
	
  September 19,
  2013

  	
   

  	
  457,143

  	
   

  
	
  September 20,
  2013

  	
   

  	
  457,143

  	
   

  
	
  September 23,
  2013

  	
   

  	
  457,143

  	
   

  
	
  September 24,
  2013

  	
   

  	
  457,143

  	
   

  
	
  September 25,
  2013

  	
   

  	
  457,143

  	
   

  
	
  September 26,
  2013

  	
   

  	
  457,143

  	
   

  
	
  September 27,
  2013

  	
   

  	
  457,143

  	
   

  
					






 


A-1

















 




	
  Expiration Date

  	
   

  	
  Daily
  Number of Warrants

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  September 30,
  2013

  	
   

  	
  457,143

  	
   

  
	
  October 1,
  2013

  	
   

  	
  457,143

  	
   

  
	
  October 2,
  2013

  	
   

  	
  457,143

  	
   

  
	
  October 3,
  2013

  	
   

  	
  457,143

  	
   

  






 


A-2