EX-10.1 MASTER CONFIRMATION






Aflac Incorporated Form 8-K



EXHIBIT 10.1








GOLDMAN, SACHS & CO. | 85 BROAD STREET | NEW YORK, NEW YORK 10004 | TEL: 212-902-1000




Opening Transaction




	 	 	 
	To:

	 	Aflac Incorporated

1932 Wynnton Road

Columbus, Georgia 31999
	 
	 	 
	A/C:

	 	[Insert Account Number]
	 
	 	 
	From:

	 	Goldman, Sachs & Co.
	 
	 	 
	Re:

	 	Forward Stock Buyback
	 
	 	 
	Ref. No:

	 	As provided in the Supplemental Confirmation
	 
	 	 
	Date:

	 	August 26, 2008





 




     This master confirmation (this “Master Confirmation”), dated as of August 26, 2008 is intended
to set forth certain terms and provisions of certain Transactions (each, a “Transaction”) entered
into from time to time between Goldman, Sachs & Co. (“GS&Co.”) and Aflac Incorporated
(“Counterparty”). This Master Confirmation, taken alone, is neither a commitment by either party
to enter into any Transaction nor evidence of a Transaction. The additional terms of any
particular Transaction shall be set forth in (i) a Supplemental Confirmation in the form of
Schedule A hereto (a “Supplemental Confirmation”), which shall reference this Master Confirmation
and supplement, form a part of, and be subject to this Master Confirmation and (ii) a Trade
Notification in the form of Schedule B hereto (a “Trade Notification”), which shall reference the
relevant Supplemental Confirmation and supplement, form a part of, and be subject to such
Supplemental Confirmation. This Master Confirmation, each Supplemental Confirmation and the
related Trade Notification together shall constitute a “Confirmation” as referred to in the
Agreement specified below.



     The definitions and provisions contained in the 2002 ISDA Equity Derivatives Definitions (the
“Equity Definitions”), as published by the International Swaps and Derivatives Association, Inc.,
are incorporated into this Master Confirmation. This Master Confirmation, each Supplemental
Confirmation and the related Trade Notification evidence a complete binding agreement between
Counterparty and GS&Co. as to the subject matter and terms of each Transaction to which this Master
Confirmation, such Supplemental Confirmation and Trade Notification relate and shall supersede all
prior or contemporaneous written or oral communications with respect thereto.



     This Master Confirmation, each Supplemental Confirmation and each Trade Notification
supplement, form a part of, and are subject to an agreement in the form of the 1992 ISDA Master
Agreement (Multicurrency-Cross Border) (the “Agreement”) as if GS&Co. and Counterparty had executed
the Agreement on the date of this Master Confirmation (but without any Schedule except for (i) the
election of Loss and Second Method, New York law (without reference to its choice of laws doctrine
other than Title 14 of Article 5 of the New York General Obligations Law) as the governing law and
US Dollars (“USD”) as the Termination Currency, (ii) the replacement of the word “third” in the
last line of Section 5(a)(i) with the word “first,” (iii) the election that the “Cross Default”
provisions of Section 5(a)(vi) shall apply to Counterparty, with a “Threshold Amount” of USD 50
million and (iv) the deletion of the phrase “, or becoming capable at such time of being declared,”
in the seventh line of Section 5(a)(vi) of the Agreement).



     The Transactions shall be the sole Transactions under the Agreement. If there exists any ISDA
Master Agreement between GS&Co. and Counterparty or any confirmation or other agreement between
GS&Co. and Counterparty pursuant to which an ISDA Master Agreement is deemed to exist between
GS&Co. and Counterparty, then notwithstanding anything to the contrary in such ISDA Master
Agreement, such confirmation or agreement or



 









 




any other agreement to which GS&Co. and Counterparty are parties, the Transactions shall not
be considered Transactions under, or otherwise governed by, such existing or deemed ISDA Master
Agreement.




     All provisions contained or incorporated by reference in the Agreement shall govern this
Master Confirmation, each Supplemental Confirmation and each Trade Notification except as expressly
modified herein or in the related Supplemental Confirmation.



     If, in relation to any Transaction to which this Master Confirmation, a Supplemental
Confirmation and a Trade Notification relate, there is any inconsistency between the Agreement,
this Master Confirmation, any Supplemental Confirmation, any Trade Notification and the Equity
Definitions, the following will prevail for purposes of such Transaction in the order of precedence
indicated: (i) such Trade Notification, (ii) such Supplemental Confirmation; (iii) this Master
Confirmation; (iv) the Agreement; and (v) the Equity Definitions.


1.     Each Transaction constitutes a Share Forward Transaction for the purposes of the Equity
Definitions. Set forth below are the terms and conditions that, together with the terms and
conditions set forth in the Supplemental Confirmation and Trade Notification relating to any
Transaction, shall govern such Transaction.




General Terms:




	 	 	 	 	 
	 	 	Trade Date:
	 	For each Transaction, as set forth in the related Supplemental Confirmation.

	 	 	 	 	 

	 	 	Buyer:
	 	Counterparty

	 	 	 	 	 

	 	 	Seller:
	 	GS&Co.

	 	 	 	 	 

	 	 	Shares:
	 	Common stock, par value USD 0.10 per share, of Counterparty (Ticker: AFL)

	 	 	 	 	 

	 	 	Exchange:
	 	New York Stock Exchange

	 	 	 	 	 

	 	 	Related Exchange(s):
	 	All Exchanges.

	 	 	 	 	 

	 	 	Prepayment\Variable

Obligation:
	 	Applicable

	 	 	 	 	 

	 	 	Prepayment Amount:
	 	For each Transaction, as set forth in the related Supplemental Confirmation.

	 	 	 	 	 

	 	 	Prepayment Date:
	 	For each Transaction, as set forth in the related Supplemental Confirmation.







Valuation:




	 	 	 	 	 
	 	 	Hedge Period:
	 	The period from and including the first Exchange Business Day following the
Trade Date to and including the Hedge Completion Date.

	 	 	 	 	 

	 	 	Hedge Completion Date:
	 	For each Transaction, as set forth in the related Trade Notification,
to be the Exchange Business Day on which GS&Co. finishes establishing its initial hedge
positions in respect of such Transaction, as determined by GS&Co. in its sole discretion,
but in no event later than the Hedge Period End Date.

	 	 	 	 	 

	 	 	Hedge Period End Date:
	 	For each Transaction, as set forth in the related Supplemental
Confirmation, subject to postponement as provided in “Valuation Disruption” below.

	 	 	 	 	 

	 	 	Hedge Period Reference

Price:
	 	For each Transaction, as set forth in the related Trade Notification, to be the average
of the VWAP Prices for the Exchange Business Days in the Hedge Period, subject to
“Valuation Disruption” below.







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	 	 	VWAP Price:
	 	For any Exchange Business Day, as determined by the Calculation Agent based on
the New York 10b-18 Volume Weighted Average Price per Share for the regular trading session
(including any extensions thereof) of the Exchange on such Exchange Business Day (without
regard to pre-open or after hours trading outside of such regular trading session for such
Exchange Business Day), as published by Bloomberg at 4:15 p.m. New York time (or 15 minutes
following the end of any extension of the regular trading session) on such Exchange
Business Day, on Bloomberg page “AFL.N <Equity> AQR_SEC” (or any successor thereto),
or if such price is not so reported on such Exchange Business Day for any reason or is, in
the Calculation Agent’s reasonable discretion, erroneous, such VWAP Price shall be as
reasonably determined by the Calculation Agent. For purposes of calculating the VWAP
Price, the Calculation Agent will include only those trades that are reported during the
period of time during which Counterparty could purchase its own shares under Rule
10b-18(b)(2) and are effected pursuant to the conditions of Rule 10b-18(b)(3), each under
the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (such trades, “Rule
10b-18 eligible transactions”).

	 	 	 	 	 

	 	 	Forward Price:
	 	The average of the VWAP Prices for the Exchange Business Days in the Calculation
Period, subject to “Valuation Disruption” below.

	 	 	 	 	 

	 	 	Calculation Period:
	 	The period from and including the Calculation Period Start Date to and
including the Termination Date.

	 	 	 	 	 

	 	 	Calculation Period Start Date:
	 	For each Transaction, as set forth in the related Supplemental
Confirmation.

	 	 	 	 	 

	 	 	Termination Date:
	 	The Scheduled Termination Date; provided that GS&Co. shall have the right to
designate any Exchange Business Day that occurs on or after the First Acceleration Date to
be the Termination Date (the “Accelerated Termination Date”) by delivering notice (an
"Acceleration Notice”) to Counterparty of any such designation on the Scheduled Termination
Date prior to 6:00 p.m. New York City time, together with a schedule setting forth in
reasonable detail the Calculation Agent’s calculations with respect to the Number of Shares
to be Delivered, the Forward Price and the Adjusted Forward Price.

	 	 	 	 	 

	 	 	Scheduled Termination Date:
	 	For each Transaction, as set forth in the related Supplemental
Confirmation, subject to postponement as provided in “Valuation Disruption” below.

	 	 	 	 	 

	 	 	First Acceleration Date:
	 	For each Transaction, as set forth in the related Supplemental
Confirmation.

	 	 	 	 	 

	 	 	Scheduled Calculation Period:
	 	The period from and including the Calculation Period Start Date to
and including the Scheduled Termination Date.

	 	 	 	 	 

	 	 	Valuation Disruption:
	 	The definition of “Market Disruption Event” in Section 6.3(a) of the
Equity Definitions is hereby amended by deleting the words “at any time during the one-hour
period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation
Time or Knock-out Valuation Time, as the case may be” and inserting the words “at any time
on any Scheduled Trading Day during the Hedge Period, Scheduled Calculation Period or
Settlement Valuation Period” after the word “material,” in the third line thereof.

	 	 	 	 	 

	 	 	 
	 	Section 6.3(d) of the Equity Definitions is hereby amended by
deleting the remainder of the provision following the term “Scheduled
Closing Time” in the fourth line thereof.

	 	 	 	 	 

	 	 	 
	 	Notwithstanding anything to the contrary in the Equity Definitions,
to the extent that a Disrupted Day occurs (i) in the Hedge Period or
the Scheduled







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	 	Calculation Period, the Calculation Agent may, in its good faith and
commercially reasonable discretion, postpone either or both of the
Hedge Period End Date and/or the Scheduled Termination Date, or (ii)
in the Settlement Valuation Period, the Calculation Agent may extend
the Settlement Valuation Period. If any such Disrupted Day is a
Disrupted Day because of a Market Disruption Event (or a deemed
Market Disruption Event as provided herein), the Calculation Agent
shall determine whether (i) such Disrupted Day is a Disrupted Day in
full, in which case the VWAP Price for such Disrupted Day shall not
be included for purposes of determining the Hedge Period Reference
Price, the Forward Price or the Settlement Price, as the case may be,
or (ii) such Disrupted Day is a Disrupted Day only in part, in which
case the VWAP Price for such Disrupted Day shall be determined by the
Calculation Agent based on Rule 10b-18 eligible transactions in the
Shares on such Disrupted Day effected before the relevant Market
Disruption Event occurred and/or after the relevant Market Disruption
Event ended, and the weighting of the VWAP Price for the relevant
Exchange Business Days during the Hedge Period, the Calculation
Period or the Settlement Valuation Period, as the case may be, shall
be adjusted in a commercially reasonable manner by the Calculation
Agent for purposes of determining the Hedge Period Reference Price,
the Forward Price or the Settlement Price, as the case may be, with
such adjustments based on, among other factors, the duration of any
Market Disruption Event and the volume, historical trading patterns
and price of the Shares. Any Scheduled Trading Day on which the
Exchange is scheduled to close prior to its normal close of trading
shall be deemed to be a Disrupted Day in full.

	 	 	 	 	 

	 
	 	 	 	If a Disrupted Day occurs during the Hedge Period, the Calculation
Period or the Settlement Valuation Period, as the case may be, and
each of the nine immediately following Scheduled Trading Days is a
Disrupted Day, then the Calculation Agent, in its good faith and
commercially reasonable discretion, may deem such ninth Scheduled
Trading Day to be an Exchange Business Day that is not a Disrupted
Day and determine the VWAP Price for such ninth Scheduled Trading Day
using its good faith estimate of the value of the Shares on such
ninth Scheduled Trading Day based on the volume, historical trading
patterns and price of the Shares and such other factors as it deems
appropriate.

	 	 	 	 	 

	Settlement Terms:
	 	 

	 	 	 	 	 

	 	 	Settlement Procedures:
	 	If the Number of Shares to be delivered is positive, Physical Settlement
shall be applicable; provided that GS&Co. does not, and shall not, make the agreement or
the representations set forth in Section 9.11 of the Equity Definitions related to the
restrictions imposed by applicable securities laws with respect to any Shares delivered by
GS&Co. to Counterparty under any Transaction. If the Number of Shares to be Delivered is
negative, then the Counterparty Settlement Provisions in Annex A shall apply.

	 	 	 	 	 

	 	 	Number of Shares
to be Delivered:
	 	A number of Shares equal to (a)(i) the Prepayment Amount divided by (ii)
the Adjusted Forward Price minus (b) the aggregate number of Shares delivered pursuant to
Interim Share Delivery below.

	 	 	 	 	 

	 	 	Adjusted Forward Price:
	 	The sum of (a) the lesser of the Forward Price and the Lower Call Strike
Price and (b) one half of the excess, if any, of the Forward Price over the Upper Call
Strike Price.

	 	 	 	 	 

	 	 	Lower Call Strike Price:
	 	For each Transaction, as set forth in the related Supplemental Confirmation.







4









 






	 	 	 	 	 
	 	 	Upper Call Strike Price:
	 	For each Transaction, as set forth in the related Supplemental Confirmation.

	 	 	 	 	 

	 	 	Excess Dividend Amount:
	 	For the avoidance of doubt, all references to the Excess Dividend Amount
shall be deleted from Section 9.2(a)(iii) of the Equity Definitions.

	 	 	 	 	 

	 	 	Settlement Date:
	 	If the Number of Shares to be delivered is positive, the date that is one
Settlement Cycle immediately following the Scheduled Termination Date.

	 	 	 	 	 

	 	 	Settlement Currency:
	 	USD

	 	 	 	 	 

	 	 	Interim Share Delivery:
	 	GS&Co. shall deliver a number of Shares equal to the applicable Interim
Shares to Counterparty on each Interim Share Delivery Date in accordance with Section 9.4
of the Equity Definitions, with each Interim Share Delivery Date deemed to be a “Settlement
Date” for purposes of such Section 9.4.

	 	 	 	 	 

	 	 	Interim Share Delivery Dates:
	 	For each Transaction, as set forth in the related Supplemental Confirmation.

	 	 	 	 	 

	 	 	Interim Shares:
	 	For each Transaction, as set forth in the related Supplemental Confirmation.

	 	 	 	 	 

	Share Adjustments:
	 	 

	 	 	 	 	 

	 	 	Potential Adjustment Event:
	 	Notwithstanding anything to the contrary in Section 11.2(e) of the
Equity Definitions, an Extraordinary Dividend shall not constitute a Potential Adjustment
Event.

	 	 	 	 	 

	 	 	 	 	It shall constitute an additional Potential Adjustment Event if the
Scheduled Termination Date for any Transaction is postponed pursuant
to “Valuation Disruption” above, in which case the Calculation Agent
may, in its commercially reasonable discretion, adjust any relevant
terms of any such Transaction as necessary to preserve as nearly as
practicable the fair value of such Transaction to GS&Co. prior to
such postponement.

	 	 	 	 	 

	 	 	Method of Adjustment:
	 	Calculation Agent Adjustment

	 	 	 	 	 

	Extraordinary Events:
	 	 

	 	 	 	 	 

	 	 	Consequences of
Merger Events:
	 	 

	 	 	 	 	 

	 	 	   (a)  Share-for-Share:
	 	Modified Calculation Agent Adjustment

	 	 	 	 	 

	 	 	   (b)  Share-for-Other:
	 	Cancellation and Payment

	 	 	 	 	 

	 	 	   (c)  Share-for-Combined:
	 	Component Adjustment

	 	 	 	 	 

	 	 	Tender Offer:
	 	Applicable; provided that (i) Section 12.1(l) of the Equity Definitions shall be
amended (x) by deleting the parenthetical in the fifth line thereof, (y) by replacing
“that” in the fifth line thereof with “whether or not such announcement” and (z) by adding
immediately after the words “Tender Offer” in the fifth line thereof “, and any publicly
announced change or amendment to such an announcement (including the announcement of an
abandonment of such intention)” and (ii) Sections 12.3(a) and 12.3(d) of the Equity
Definitions shall each be amended by replacing each occurrence of the words “Tender Offer
Date” by “Announcement Date.”







5









 






	 	 	 	 	 
	 	 	Consequences of

Tender Offers:
	 	 

	 	 	 	 	 

	 	 	   (a)  Share-for-Share:
	 	Modified Calculation Agent Adjustment

	 	 	 	 	 

	 	 	   (b)  Share-for-Other:
	 	Modified Calculation Agent Adjustment

	 	 	 	 	 

	 	 	   (c)  Share-for-Combined:
	 	Modified Calculation Agent Adjustment

	 	 	 	 	 

	 	 	 	 	Notwithstanding the foregoing, and without limiting the generality of clause (ii) of
Section 12.3(d) of the Equity Definitions, if, in connection with any Tender Offer,
GS&Co. concludes, in its sole discretion, that (i) it is appropriate with respect to
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 generally by GS&Co.) to cancel any Transaction,
or (ii) it is no longer advisable to hedge any Transaction in the manner contemplated
on the Trade Date for such Transaction, then, in each case, GS&Co. may elect that
Cancellation and Payment shall apply to such Transaction.

	 	 	 	 	 

	 	 	Nationalization,

Insolvency or Delisting:
	 	 
Cancellation and Payment; provided that in addition to the provisions
of Section 12.6(a)(iii) of the Equity Definitions, it shall also constitute a Delisting if
the Exchange is located in the United States and the Shares are not immediately re-listed,
re-traded or re-quoted on any of the New York Stock Exchange, the American Stock Exchange,
The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective
successors); if the Shares are immediately re-listed, re-traded or re-quoted on any such
exchange or quotation system, such exchange or quotation system shall be deemed to be the
Exchange.

	 	 	 	 	 

	Additional Disruption Events:
	 	 

	 	 	 	 	 

	 	 	   (a)  Change in Law:
	 	Applicable

	 	 	 	 	 

	 	 	   (b)  Failure to Deliver:
	 	Applicable

	 	 	 	 	 

	 	 	   (c)  Insolvency Filing:
	 	Applicable

	 	 	 	 	 

	 	 	   (d)  Hedging Disruption:
	 	Applicable

	 	 	 	 	 

	 	 	          Hedging Party:
	 	GS&Co.

	 	 	 	 	 

	 	 	          Determining Party:
	 	GS&Co.

	 	 	 	 	 

	Additional Termination Event(s):
	 	Notwithstanding anything to the contrary
in the Equity Definitions, if, as a
result of an Extraordinary Event, any
Transaction would be cancelled or
terminated (whether in whole or in part)
pursuant to Article 12 of the Equity
Definitions, an Additional Termination
Event (with such terminated
Transaction(s) (or portions thereof)
being the Affected Transaction(s) and
Counterparty being the sole Affected
Party) shall be deemed to occur, and, in
lieu of Sections 12.7, 12.8 and 12.9 of
the Equity Definitions, Section 6 of the
Agreement shall apply to such Affected
Transaction(s).

	 	 	 	 	 

	Relevant Period:
	 	The period from and including the first
day of the Hedge Period to and including
the Scheduled Termination Date.

	 	 	 	 	 

	Non-Reliance/Agreements and

Acknowledgements Regarding

Hedging Activities/Additional

Acknowledgements:
	 	Applicable







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	Transfer:
	 	Notwithstanding anything to the contrary
in the Agreement, GS&Co. may assign,
transfer and set over all rights, title
and interest, powers, privileges and
remedies of GS&Co. under any
Transaction, in whole or in part, to an
affiliate of GS&Co. whose obligations
are guaranteed by The Goldman Sachs
Group, Inc. without the consent of
Counterparty.

	 	 	 	 	 

	GS&Co. Payment Instructions:
	 	 

 

 


	 	 	 	 	 

	Counterparty’s Contact Details

for Purpose of Giving Notice:	 	 

	 	 	 	 	 

	GS&Co.’s Contact Details for

Purpose of Giving Notice:	 	 
Telephone No.:    (212) 902-8996

Facsimile No.:      (212) 902-0112

Attention: Equity Operations: Options and Derivatives

	 	 	 	 	 

	 
	 	 
	 	With a copy to:

Serge Marquie

Equity Capital Markets

One New York Plaza

New York, NY 10004

Telephone No.:    (212) 902-9779

Facsimile No.:      (212) 902-3000






2.    Calculation Agent.     GS&Co.



3.    Additional Mutual Representations, Warranties and Covenants of Each Party. In addition
to the representations, warranties and covenants in the Agreement, each party represents, warrants
and covenants to the other party that:




       (a)  Eligible Contract Participant. It is an “eligible contract participant”, as
defined in the U.S. Commodity Exchange Act (as amended), and is entering into each Transaction
hereunder as principal (and not as agent or in any other capacity, fiduciary or otherwise) and not
for the benefit of any third party.



       (b)  Accredited Investor. Each party acknowledges that the offer and sale of each
Transaction to it is intended to be exempt from registration under the Securities Act of 1933, as
amended (the “Securities Act”), by virtue of Section 4(2) thereof. Accordingly, each party
represents and warrants to the other that (i) it has the financial ability to bear the economic
risk of its investment in each Transaction and is able to bear a total loss of its investment, (ii)
it is an “accredited investor” as that term is defined under Regulation D under the Securities Act
and (iii) the disposition of each Transaction is restricted under this Master Confirmation, the
Securities Act and state securities laws.


4.    Additional Representations, Warranties and Covenants of Counterparty. In addition to
the representations, warranties and covenants in the Agreement, Counterparty represents, warrants
and covenants to GS&Co. that:




       (a)  The purchase or writing of each Transaction and the transactions contemplated hereby will
not violate Rule 13e-1 or Rule 13e-4 under the Exchange Act.



       (b)  It is not entering into any Transaction (i) on the basis of, and is not aware of, any
material non-public information with respect to the Shares (ii) in anticipation of, in connection
with, or to facilitate, a distribution of its securities, a self tender offer or a third-party
tender offer or (iii) 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).



7









 





       (c)  Each Transaction is being entered into pursuant to a publicly disclosed Share buy-back
program and its Board of Directors has approved the use of derivatives to effect the Share buy-back
program.



       (d)  Without limiting the generality of Section 13.1 of the Equity Definitions, it acknowledges
that neither GS&Co. nor any of its affiliates is making any representations or warranties or taking
any position or expressing any view with respect to the treatment of any Transaction under any
accounting standards including FASB Statements 128, 133 as amended, or 149, 150, EITF 00-19, 01-6,
03-6 or 07-5 (or any successor issue statements) or under the Financial Accounting Standards
Board’s Liabilities & Equity Project.



       (e)  As of (i) the date hereof and (ii) the Trade Date for each Transaction hereunder,
Counterparty is in compliance with its reporting obligations under the Exchange Act and its most
recent Annual Report on Form 10-K, together with all reports subsequently filed by it pursuant to
the Exchange Act, taken together and as amended and supplemented to the date of this
representation, do not, as of their respective filing dates, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading.



       (f)  Counterparty shall report each Transaction to the extent required under Regulation S-K
under the Exchange Act.



       (g)  The Shares are not, and Counterparty will not cause the Shares to be, subject to a
“restricted period” (as defined in Regulation M promulgated under the Exchange Act) at any time
during any Relevant Period for any Transaction unless Counterparty has provided written notice to
GS&Co. of such restricted period not later than the Scheduled Trading Day immediately preceding the
first day of such “restricted period”; Counterparty acknowledges that any such notice may cause a
Disrupted Day to occur pursuant to Section 5 below; accordingly, Counterparty acknowledges that its
delivery of such notice must comply with the standards set forth in Section 6 below.



       (h)  As of the Trade Date, the Prepayment Date, each Interim Share Delivery Date, the
Settlement Date and the date of any Second Settlement, if any, for each Transaction, Counterparty
is not “insolvent” (as such term is defined under Section 101(32) of the U.S. Bankruptcy Code
(Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to
purchase a number of Shares with a value equal to the Prepayment Amount in compliance with the laws
of the jurisdiction of Counterparty’s incorporation.



       (i)  Counterparty is not and, after giving effect to any Transaction, will not be, required to
register as an “investment company” as such term is defined in the Investment Company Act of 1940,
as amended.



       (j)  Counterparty will not take any action or refrain from taking any action that would limit
or in any way adversely affect GS&Co.’s rights under the Agreement, this Master Confirmation or any
Supplemental Confirmation.



       (k)  Counterparty has not and will not enter into agreements similar to the Transactions
described herein where any initial hedge period, calculation period, relevant period or settlement
valuation period (each however defined) in such other transaction will overlap at any time
(including as a result of extensions in such initial hedge period, calculation period, relevant
period or settlement valuation period as provided in the relevant agreements) with any Relevant
Period or, if applicable, any Settlement Valuation Period under this Master Confirmation. In the
event that the initial hedge period, relevant period, calculation period or settlement valuation
period in any other similar transaction overlaps with any Relevant Period or, if applicable,
Settlement Valuation Period under this Master Confirmation as a result of any postponement of the
Scheduled Termination Date or extension of the Settlement Valuation Period pursuant to “Valuation
Disruption” above, Counterparty shall promptly amend such transaction to avoid any such overlap.


5.    Regulatory Disruption. In the event that GS&Co. concludes, in its sole discretion, that
it is appropriate with respect to 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 GS&Co.), for it to refrain from purchasing Shares on any
Scheduled Trading Day or Days during the Hedge Period, the Scheduled Calculation Period or, if
applicable, the Settlement Valuation Period, GS&Co. may by written notice to


8









 






Counterparty elect to deem that a Market Disruption Event has occurred and will be continuing on
such Scheduled Trading Day or Days.



6.    10b5-1 Plan. Counterparty represents, warrants and covenants to GS&Co. that:




       (a)  Counterparty is entering into this Master Confirmation and each Transaction hereunder in
good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 under the
Exchange Act (“Rule 10b5-1”) or any other antifraud or anti-manipulation provisions of the federal
or applicable state securities laws and that it has not entered into or altered and will not enter
into or alter any corresponding or hedging transaction or position with respect to the Shares.
Counterparty acknowledges that it is the intent of the parties that each Transaction entered into
under this Master Confirmation comply with the requirements of paragraphs (c)(1)(i)(A) and (B) of
Rule 10b5-1 and each Transaction entered into under this Master Confirmation shall be interpreted
to comply with the requirements of Rule 10b5-1(c).



       (b)  Counterparty will not seek to control or influence GS&Co.’s decision to make any
“purchases or sales” (within the meaning of Rule 10b5-1(c)(1)(i)(B)(3)) under any Transaction
entered into under this Master Confirmation, including, without limitation, GS&Co.’s decision to
enter into any hedging transactions. Counterparty represents and warrants that it has consulted
with its own advisors as to the legal aspects of its adoption and implementation of this Master
Confirmation, each Supplemental Confirmation and each Trade Notification under Rule 10b5-1.



       (c)  Counterparty acknowledges and agrees that any amendment, modification, waiver or
termination of this Master Confirmation, the relevant Supplemental Confirmation or Trade
Notification must be effected in accordance with the requirements for the amendment or termination
of a “plan” as defined in Rule 10b5-1(c). Without limiting the generality of the foregoing, any
such amendment, modification, waiver or termination shall be made in good faith and not as part of
a plan or scheme to evade the prohibitions of Rule 10b-5, and no such amendment, modification or
waiver shall be made at any time at which Counterparty or any officer, director, manager or similar
person of Counterparty is aware of any material non-public information regarding Counterparty or
the Shares.


7.    Counterparty Purchases. Counterparty (or any “affiliated purchaser” as defined in Rule
10b-18 under the Exchange Act (“Rule 10b-18”)) shall not, without the prior written consent of
GS&Co., directly or indirectly purchase any Shares (including by means of a derivative instrument),
listed contracts on the Shares or securities that are convertible into, or exchangeable or
exercisable for Shares (including, without limitation, any Rule 10b-18 purchases of blocks (as
defined in Rule 10b-18)) during any Relevant Period or, if applicable, Settlement Valuation Period,
except through GS&Co.



8.    Special Provisions for Merger Transactions. Notwithstanding anything to the contrary
herein or in the Equity Definitions:




       (a)   Counterparty agrees that it:




       (i)  will not during the period commencing on the Trade Date through the end of the
Relevant Period or, if applicable, the Settlement Valuation Period for any Transaction make,
or permit to be made, any public announcement (as defined in Rule 165(f) under the
Securities Act) of any Merger Transaction or potential Merger Transaction unless such public
announcement is made prior to the opening or after the close of the regular trading session
on the Exchange for the Shares;




       (ii)  shall promptly (but in any event prior to the next opening of the regular trading
session on the Exchange) notify GS&Co. following any such announcement that such
announcement has been made; and




       (iii)  shall promptly (but in any event prior to the next opening of the regular trading
session on the Exchange) provide GS&Co. with written notice specifying (i) Counterparty’s
average daily Rule 10b-18 Purchases (as defined in Rule 10b-18) during the three full
calendar months immediately preceding



9









 






	 	 	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. 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 6 above.





       (b)  GS&Co. in its sole discretion may (i) make adjustments to the terms of any Transaction,
including, without limitation, the Scheduled Termination Date, and/or suspend the Hedge Period, the
Calculation Period and/or any Settlement Valuation Period 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 and with the amount under Section 6(e)
of the Agreement determined taking into account the fact that the Calculation Period or Settlement
Valuation Period, as the case may be, had fewer Scheduled Trading Days than originally anticipated.



     "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 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 word “Adjusted”
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, and GS&Co. shall have the right
to deliver an Acceleration Notice at any time following the date of such Friendly Transaction
Announcement. If GS&Co. delivers an Acceleration Notice prior to the Scheduled Termination Date and
the Number of Shares to be Delivered is positive, then, notwithstanding any other provision of this
Master Confirmation to the contrary, the Settlement Date shall be the date that is one Settlement
Cycle immediately following the date such Acceleration Notice is delivered. 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 sentence of 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 Master 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).




       (b)  "Friendly Transaction Announcement” means (i) an Acquisition Transaction Announcement by
Counterparty or its board of directors prior to the Settlement Date 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 by Counterparty or its board of directors 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.



       (c)  "Acquisition Transaction Announcement” means (i) the announcement of an Acquisition
Transaction, (ii) an announcement that Counterparty or any of its subsidiaries has entered into an
agreement, a letter of intent or an understanding designed to result in an Acquisition Transaction,
(iii) the announcement of the



10









 







intention to solicit or enter into, or to explore strategic alternatives or other similar
undertaking that may include, an Acquisition Transaction, or (iv) any other announcement that in
the reasonable judgment of the Calculation Agent may result in an Acquisition Transaction. For the
avoidance of doubt, announcements as used in the definition of Acquisition Transaction Announcement
refer to any public announcement whether made by the Issuer or a third party.



       (d)  "Acquisition Transaction” means (i) any Merger Event (for purposes of this definition the
definition of Merger Event shall be read with the references therein to “100%” being replaced by
“20%” and to “50%” by “75%” and without reference to the clause beginning immediately following the
definition of Reverse Merger therein to the end of such definition), Tender Offer or Merger
Transaction or any other transaction involving the merger of Counterparty with or into any third
party, (ii) the sale or transfer of all or substantially all of the assets of Counterparty, (iii) a
recapitalization, reclassification, binding share exchange or other similar transaction, (iv) any
acquisition, lease, exchange, transfer, disposition (including by way of spin-off or distribution)
of assets (including any capital stock or other ownership interests in subsidiaries) or other
similar event by Counterparty or any of its subsidiaries where the aggregate consideration
transferable or receivable by or to Counterparty or its subsidiaries exceeds 20% of the market
capitalization of Counterparty and (v) any transaction in which Counterparty or its board of
directors has a legal obligation to make a recommendation to its shareholders in respect of such
transaction (whether pursuant to Rule 14e-2 under the Exchange Act or otherwise).


10.    Acknowledgments. (a) The parties hereto intend for:





          (i)  each Transaction to be a “securities contract” as defined in Section 741(7) of the
Bankruptcy Code, a “swap agreement” as defined in Section 101(53B) of the Bankruptcy Code
and a “forward contract” as defined in Section 101(25) of the Bankruptcy Code, and the
parties hereto to be entitled to the protections afforded by, among other Sections, Sections
362(b)(6), 362(b)(17), 362(b)(27), 362(o), 546(e), 546(g), 546(j), 555, 556, 560 and 561 of
the Bankruptcy Code;




          (ii)  the Agreement to be a “master netting agreement” as defined in Section 101(38A) of
the Bankruptcy Code;




          (iii)  a party’s right to liquidate, terminate or accelerate any Transaction, net out or
offset termination values or payment amounts, 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 defined in the Bankruptcy Code);
and




          (iv)  all payments for, under or in connection with each Transaction, all payments for
the Shares (including, for the avoidance of doubt, payment of the Prepayment Amount) and the
transfer of such Shares to constitute “settlement payments” and “transfers” (as defined in
the Bankruptcy Code).



         (b)  Counterparty acknowledges that:




          (i)  during the term of any Transaction, GS&Co. and its affiliates may buy or sell Shares or
other securities or buy or sell options or futures contracts or enter into swaps or other
derivative securities in order to establish, adjust or unwind its hedge position with respect to
such Transaction;




          (ii)  GS&Co. and its affiliates may also be active in the market for the Shares other than in
connection with hedging activities in relation to any Transaction;




          (iii)  GS&Co. shall make its own determination as to whether, when or in what manner any
hedging or market activities in Counterparty’s securities shall be conducted and shall do so in a
manner that it deems appropriate to hedge its price and market risk with respect to the Forward
Price and the VWAP Price;



11









 






          (iv)  any market activities of GS&Co. and its affiliates with respect to the Shares may affect
the market price and volatility of the Shares, as well as the Forward Price and VWAP Price, each in
a manner that may be adverse to Counterparty; and




          (v)  each Transaction is a derivatives transaction in which it has granted GS&Co. an option;
GS&Co. may purchase shares for its own account at an average price that may be greater than, or
less than, the price paid by Counterparty under the terms of the related Transaction.


11.    Credit Support Documents. The parties hereto acknowledge that no Transaction hereunder
is secured by any collateral that would otherwise secure the obligations of Counterparty herein or
pursuant to the Agreement.



12.    Set-off. (a) The parties agree to amend Section 6 of the Agreement by adding a new
Section 6(f) thereto as follows:





	 	 	 	"(f) Upon the occurrence of an Event of Default or Termination
Event with respect to a party who is the Defaulting Party or the
Affected Party (“X”), the other party (“Y”) will have the right
(but not be obliged) without prior notice to X or any other person
to set-off or apply any obligation of X owed to Y (or any Affiliate
of Y) (whether or not matured or contingent and whether or not
arising under the Agreement, and regardless of the currency, place
of payment or booking office of the obligation) against any
obligation of Y (or any Affiliate of Y) owed to X (whether or not
matured or contingent and whether or not arising under the
Agreement, and regardless of the currency, place of payment or
booking office of the obligation). Y will give notice to the other
party of any set-off effected under this Section 6(f).	 
	 
	 	 	 	Amounts (or the relevant portion of such amounts) subject to
set-off may be converted by Y into the Termination Currency at the
rate of exchange at which such party would be able, acting in a
reasonable manner and in good faith, to purchase the relevant
amount of such currency. If any obligation is unascertained, Y may
in good faith estimate that obligation and set-off in respect of
the estimate, subject to the relevant party accounting to the other
when the obligation is ascertained. Nothing in this Section 6(f)
shall be effective to create a charge or other security interest.
This Section 6(f) shall be without prejudice and in addition to any
right of set-off, combination of accounts, lien or other right to
which any party is at any time otherwise entitled (whether by
operation of law, contract or otherwise).”	 





         (b)  Notwithstanding anything to the contrary in the foregoing, GS&Co. agrees not to set off or
net amounts due from Counterparty with respect to any Transaction against amounts due from GS&Co.
to Counterparty with respect to contracts or instruments that are not Equity Contracts. “Equity
Contract” means any transaction or instrument that does not convey to GS&Co. rights, or the ability
to assert claims, that are senior to the rights and claims of common stockholders in the event of
Counterparty’s bankruptcy.


13.    Delivery of Shares. Notwithstanding anything to the contrary herein, GS&Co. may, by
prior notice to Counterparty, satisfy its obligation to deliver any Shares or other securities on
any date due (an “Original Delivery Date”) by making separate deliveries of Shares or such
securities, as the case may be, at more than one time on or prior to such Original Delivery Date,
so long as the aggregate number of Shares and other securities so delivered on or prior to such
Original Delivery Date is equal to the number required to be delivered on such Original Delivery
Date.



14.    Early Termination. In the event that an Early Termination Date (whether as a result of
an Event of Default or a Termination Event) occurs or is designated with respect to any Transaction
(except as a result of a Merger Event in which the consideration or proceeds to be paid to holders
of Shares consists solely of cash), if either party would owe any amount to the other party
pursuant to Section 6(d)(ii) of the Agreement (any such amount, a “Payment Amount”), then
Counterparty or, in the case of a Payment Amount owed by GS&Co., GS&Co. may, no


12









 






later than the Early Termination Date, elect for GS&Co. or Counterparty, as the case may be, to
deliver to the other party a number of Shares (or, in the case of a Merger Event, a number of
units, each comprising the number or amount of the securities or property that a hypothetical
holder of one Share would receive in such Merger Event (each such unit, an “Alternative Delivery
Unit” and, the securities or property comprising such unit, “Alternative Delivery Property”)) with
a value equal to all (in the case of such an election by either party) or any portion (in the case
of such an election by GS&Co. only) of the Payment Amount, as determined by the Calculation Agent
(and the parties agree that, in making such determination of value, the Calculation Agent may take
into account a number of factors, including the market price of the Shares or Alternative Delivery
Property on the date of early termination and, if such delivery is made by GS&Co., the prices at
which GS&Co. purchases Shares or Alternative Delivery Property to fulfill its delivery obligations
under this Section 14), in lieu of payment of the Payment Amount or such portion thereof, as the
case may be; provided that in determining the composition of any Alternative Delivery Unit, if the
relevant 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. If such delivery is
made by Counterparty, paragraphs 2 through 7 of Annex A shall apply as if such delivery were a
settlement of the Transaction to which Net Share Settlement applied, the Cash Settlement Payment
Date were the Early Termination Date and the Forward Cash Settlement Amount were zero (0) minus the
Payment Amount owed by Counterparty.



15.    Calculations and Payment Date upon Early Termination. The parties acknowledge and
agree that in calculating Loss pursuant to Section 6 of the Agreement GS&Co. may (but need not)
determine losses without reference to actual losses incurred but based on expected losses assuming
a commercially reasonable (including without limitation with regard to reasonable legal and
regulatory guidelines) risk bid were used to determine loss to avoid awaiting the delay associated
with closing out any hedge or related trading position in a commercially reasonable manner prior to
or sooner following the designation of an Early Termination Date. Notwithstanding anything to the
contrary in Section 6(d)(ii) of the Agreement, all amounts calculated as being due in respect of an
Early Termination Date under Section 6(e) of the Agreement will be payable on the day that notice
of the amount payable is effective; provided that if Counterparty elects to receive Shares or
Alternative Delivery Property in accordance with Section 14, such Shares or Alternative Delivery
Property shall be delivered on a date selected by GS&Co as promptly as practicable.



16.    Automatic Termination Provisions. Notwithstanding anything to the contrary in Section
6 of the Agreement, if a Termination Price is specified in any Supplemental Confirmation, then an
Additional Termination Event with Counterparty as the sole Affected Party and the Transaction to
which such Supplemental Confirmation relates as the Affected Transaction will automatically occur
without any notice or action by GS&Co. or Counterparty if the price of the Shares on the Exchange
at any time falls below such Termination Price, and 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.



17.    Delivery of Cash. For the avoidance of doubt, nothing in this Master Confirmation
shall be interpreted as requiring Counterparty to deliver cash in respect of the settlement of the
Transactions contemplated by this Master Confirmation following payment by Counterparty of the
relevant Prepayment Amount, except in circumstances where the required cash settlement thereof is
permitted for classification of the contract as equity by EITF 00-19 as in effect on the relevant
Trade Date (including, without limitation, where Counterparty so elects to deliver cash or fails
timely to elect to deliver Shares or Alternative Delivery Property in respect of the settlement of
such Transactions).



18.    Claim in Bankruptcy. GS&Co. acknowledges and agrees that this Confirmation is not
intended to convey to it rights with respect to the Transaction that are senior to the claims of
common stockholders in the event of Counterparty’s bankruptcy.



19.    Disposition of Hedge Shares. Counterparty hereby agrees that if, in the good faith
reasonable judgment of GS&Co., any Shares (the “Hedge Shares”) acquired in the U.S. public market
by GS&Co. in connection with a Transaction cannot be sold in the U.S. public market by GS&Co.
without registration under the Securities Act at or about the time of any early termination or
cancellation of such Transaction, Counterparty shall, at its election: (i) in order to allow GS&Co.
to sell the Hedge Shares in a registered offering, make available to GS&Co. an effective
registration statement under the Securities Act to cover the resale of such Hedge Shares and (A)
enter into an agreement, in form and substance satisfactory to GS&Co., substantially in the form of
an underwriting agreement


13









 






for a registered offering, (B) provide accountant’s “comfort” letters in customary form for
registered offerings of equity securities, (C) provide disclosure opinions of nationally recognized
outside counsel to Counterparty reasonably acceptable to GS&Co., (D) provide other customary
opinions, certificates and closing documents customary in form for registered offerings of equity
securities and (E) afford GS&Co. a reasonable opportunity to conduct a “due diligence”
investigation with respect to Counterparty customary in scope for underwritten offerings of equity
securities; provided that if GS&Co., in its sole commercially reasonable discretion, is not
satisfied with access to due diligence materials, the results of its due diligence investigation,
or the procedures and documentation for the registered offering referred to above, then clause (ii)
or clause (iii) of this Section 19 shall apply at the election of Counterparty; (ii) in order to
allow GS&Co. to sell the Hedge Shares in a private placement, enter into a private placement
agreement substantially similar to private placement purchase agreements customary for private
placements of equity securities, in form and substance satisfactory to GS&Co., including customary
representations, covenants, blue sky and other governmental filings and/or registrations,
indemnities to GS&Co., due diligence rights (for GS&Co. or any designated buyer of the Hedge Shares
from GS&Co.), opinions and certificates and such other documentation as is customary for private
placements agreements, all reasonably acceptable to GS&Co. (in which case, the Calculation Agent
shall make any adjustments to the terms of such Transaction or its early termination or
cancellation that are necessary, in its reasonable judgment, to compensate GS&Co. for any discount
from the public market price of the Shares incurred on the sale of Hedge Shares in a private
placement); or (iii) purchase the Hedge Shares from GS&Co. at the VWAP Price on such Exchange
Business Days, and in the amounts, requested by GS&Co.



20.    Limitation on Settlement by GS&Co. Notwithstanding anything herein or in the Agreement
to the contrary, in no event shall GS&Co. be required to deliver Shares or Alternative Delivery
Property in connection with the Transaction in excess of 115,000,000 Shares or Alternative Delivery
Units, as the case may be (as such number may be adjusted from time to time in accordance with the
provisions hereof).



21.    General Obligations Law of New York. With respect to each Transaction, (i) this Master
Confirmation, together with the related Supplemental Confirmation, as supplemented by the related
Trade Notification, is a “qualified financial contract”, as such term is defined in Section
5-701(b)(2) of the General Obligations Law of New York (the “General Obligations Law”); (ii) such
Trade Notification constitutes a “confirmation in writing sufficient to indicate that a contract
has been made between the parties” hereto, as set forth in Section 5-701(b)(3)(b) of the General
Obligations Law; and (iii) this Master Confirmation, together with the related Supplemental
Confirmation, constitutes a prior “written contract” as set forth in Section 5-701(b)(1)(b) of the
General Obligations Law, and each party hereto intends and agrees to be bound by this Master
Confirmation and the related Supplemental Confirmation, as supplemented by the Trade Notification.



22.    Governing Law. The Agreement, this Master Confirmation, each Supplemental
Confirmation, each Trade Notification and all matters arising in connection with the Agreement,
this Master Confirmation, each Supplemental Confirmation and each Trade Notification shall be
governed by, and construed and enforced in accordance with, the laws of the State of New York
(without reference to its choice of laws doctrine other than Title 14 of Article 5 of the New York
General Obligations Law).



23.    Offices.




         (a)  The Office of GS&Co. for each Transaction is: One New York Plaza, New York, New York
10004.



         (b)  The Office of Counterparty for each Transaction is: 1932 Wynnton Road, Columbus, Georgia
31999.


24.    Arbitration. The Agreement, this Master Confirmation, each Supplemental Confirmation
and each Trade Notification are subject to the following arbitration provisions:




         (a)  All parties to this Master Confirmation are giving up the right to sue each other in
court, including the right to a trial by jury, except as provided by the rules of the arbitration
forum in which a claim is filed.



14









 





         (b)  Arbitration awards are generally final and binding; a party’s ability to have a court
reverse or modify an arbitration award is very limited.



         (c)  The ability of the parties to obtain documents, witness statements and other discovery is
generally more limited in arbitration than in court proceedings.



         (d)  The arbitrators do not have to explain the reason(s) for their award.



         (e)  The panel of arbitrators will typically include a minority of arbitrators who were or are
affiliated with the securities industry, unless Counterparty is a member of the organization
sponsoring the arbitration facility, in which case all arbitrators may be affiliated with the
securities industry.



         (f)  The rules of some arbitration forums may impose time limits for bringing a claim in
arbitration. In some cases, a claim that is ineligible for arbitration may be brought in court.



         (g)  The rules of the arbitration forum in which the claim is filed, and any amendments
thereto, shall be incorporated into this Master Confirmation.



         Counterparty agrees that any and all controversies that may arise between Counterparty and
GS&Co., including, but not limited to, those arising out of or relating to the Agreement or any
Transaction hereunder, shall be determined by arbitration conducted before The New York Stock
Exchange, Inc. (“NYSE”) or NASD Dispute Resolution (“NASD-DR”), or, if the NYSE and NASD-DR decline
to hear the matter, before the American Arbitration Association, in accordance with their
arbitration rules then in force. The award of the arbitrator shall be final, and judgment upon the
award rendered may be entered in any court, state or federal, having jurisdiction.



         No person shall bring a putative or certified class action to arbitration, nor seek to enforce
any pre-dispute arbitration agreement against any person who has initiated in court a putative
class action or who is a member of a putative class who has not opted out of the class with respect
to any claims encompassed by the putative class action until: (i) the class certification is
denied; (ii) the class is decertified; or (iii) Counterparty is excluded from the class by the
court.



         Such forbearance to enforce an agreement to arbitrate shall not constitute a waiver of any
rights under this Master Confirmation except to the extent stated herein.


25.    Counterparts. This Master Confirmation may be executed in any number of counterparts,
all of which shall constitute one and the same instrument, and any party hereto may execute this
Master Confirmation by signing and delivering one or more counterparts.





15









 









       Counterparty hereby agrees (a) to check this Master 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 GS&Co.) correctly sets forth the terms of
the agreement between GS&Co. and Counterparty with respect to any particular Transaction to which
this Master Confirmation relates, by manually signing this Master 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.



	 	 	 	 	 
	 	Yours faithfully,



GOLDMAN, SACHS & CO.

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 



Agreed and Accepted By:






AFLAC INCORPORATED







	 	 	 	 	 	 
	 	 	 
	By:  	 	 
	 	Name:  
Title:  	
 	 



 









 






	 	 	 	 	 



SCHEDULE A




SUPPLEMENTAL CONFIRMATION




	 	 	 
	To:

	 	Aflac Incorporated

1932 Wynnton Road

Columbus, Georgia 31999
	 
	 	 
	From:

	 	Goldman, Sachs & Co.
	 
	 	 
	Subject:

	 	Forward Stock Buyback
	 
	 	 
	Ref. No:

	 	[Insert Reference No.]
	 
	 	 
	Date:

	 	August 26, 2008





 




     The purpose of this Supplemental Confirmation is to confirm the terms and conditions of the
Transaction entered into between Goldman, Sachs & Co. (“GS&Co.”) and Aflac Incorporated
(“Counterparty”) (together, the “Contracting Parties”) on the Trade Date specified below. This
Supplemental Confirmation is a binding contract between GS&Co. and Counterparty as of the relevant
Trade Date for the Transaction referenced below.


1.    This Supplemental Confirmation supplements, forms part of, and is subject to the Master
Confirmation dated as of August 26, 2008 (the “Master Confirmation”) between the Contracting
Parties, as amended and supplemented from time to time. All provisions contained in the Master
Confirmation govern this Supplemental Confirmation except as expressly modified below.



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




	 	 	 
	Trade Date:

	 	August 26, 2008
	 
	 	 
	Calculation Period Start Date:
	 	 
	 
	 	 
	Hedge Period End Date:
	 	 
	 
	 	 
	Scheduled Termination Date:

	 	February 18, 2009
	 
	 	 
	First Acceleration Date:
	 	 
	 
	 	 
	Prepayment Amount:

	 	USD [825,000,000]
	 
	 	 
	Prepayment Date:
	 	 
	 
	 	 
	Lower Call Strike Price:
	 	 
	 
	 	 
	Upper Call Strike Price:
	 	 
	 
	 	 
	Interim Shares:

	 	6,000,000 Shares for the first Interim
Share Delivery Date and
5,000,000 Shares
for the second Interim Share Delivery Date.
	 
	 	 
	Interim Share Delivery Dates:

	 	December 23, 2008 and January 5, 2009
	 
	 	 
	Termination Price:
	 	 





3.    Counterparty represents and warrants to GS&Co. that neither it nor any “affiliated purchaser”
(as defined in Rule 10b-18 under the Exchange Act) has made any purchases of blocks pursuant to the
proviso in Rule 10b-




A-1









 







18(b)(4) under the Exchange Act during either (i) the four full calendar weeks immediately
preceding the Trade Date or (ii) during the calendar week in which the Trade Date occurs.



4.    This Supplemental Confirmation may be executed in any number of counterparts, all of which shall
constitute one and the same instrument, and any party hereto may execute this Supplemental
Confirmation by signing and delivering one or more counterparts.




A-2









 








     Counterparty hereby agrees (a) to check this Supplemental 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 GS&Co.) correctly sets forth
the terms of the agreement between GS&Co. and Counterparty with respect to the Transaction to which
this Supplemental Confirmation relates, by manually signing this Supplemental 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.



	 	 	 	 	 
	 	Yours sincerely,



GOLDMAN, SACHS & CO.

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 



Agreed and Accepted By:






AFLAC INCORPORATED







	 	 	 	 	 	 
	 	 	 
	By:  	 	 
	 	Name:  
Title:  	
 	 



A-3









 






	 	 	 	 	 



SCHEDULE B




TRADE NOTIFICATION




	 	 	 
	To:

	 	Aflac Incorporated

1932 Wynnton Road

Columbus, Georgia 31999
	 
	 	 
	From:

	 	Goldman, Sachs & Co.
	 
	 	 
	Subject:

	 	Forward Stock Buyback
	 
	 	 
	Ref. No:

	 	[Insert Reference No.]
	 
	 	 
	Date:

	 	[Insert Date]






     The purpose of this Trade Notification is to notify you of certain terms in the Transaction
entered into between Goldman, Sachs & Co. (“GS&Co.”) and Aflac Incorporated (“Counterparty”)
(together, the “Contracting Parties”) on the Trade Date specified below.



     This Trade Notification supplements, forms part of, and is subject to the Supplemental
Confirmation dated as of August 26, 2008 (the “Supplemental Confirmation”) between the Contracting
Parties, as amended and supplemented from time to time. The Supplemental Confirmation is subject
to the Master Confirmation dated as of August 26, 2008 (the “Master Confirmation”) between the
Contracting Parties, as amended and supplemented from time to time.



 




Hedge Completion Date:




Hedge Period Reference Price:




Lower Call Strike Price:




Upper Call Strike Price:




	 	 	 	 	 
	 	Yours sincerely,





GOLDMAN, SACHS & CO.

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 



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ANNEX A




COUNTERPARTY SETTLEMENT PROVISIONS





     1.    The following Counterparty Settlement Provisions shall apply to the extent indicated under
the Master Confirmation:



	 	 	 	 	 
	 
	 	Settlement Currency:
	 	USD

	 	 	 	 	 

	 	 	Settlement Method Election:
	 	Applicable; provided that (i) Section 7.1 of the
Equity Definitions is hereby amended by deleting the word “Physical” in the
sixth line thereof and replacing it with the words “Net Share” and (ii) the
Electing Party may make a settlement method election only if the Electing
Party represents and warrants to GS&Co. in writing on the date it notifies
GS&Co. of its election that, as of such date, the Electing Party is not
aware of any material non-public information concerning Counterparty or the
Shares and is electing the settlement method in good faith and not as part
of a plan or scheme to evade compliance with the federal securities laws.

	 	 	 	 	 

	 	 	Electing Party:
	 	Counterparty

	 	 	 	 	 

	 	 	Settlement Method

Election Date:
	 	The earlier of (i) the Exchange Business Day immediately following
the Scheduled Termination Date and (ii) the Exchange Business Day
immediately following the date of delivery of an Acceleration Notice (in
which case the election under Section 7.1 of the Equity Definitions shall be
made no later than 10 minutes prior to the open of trading on the Exchange
on such Exchange Business Day), as the case may be; provided that if a
Friendly Transaction Announcement occurs after the Settlement Date, the
Settlement Method Election Date for the Second Settlement shall be the
Exchange Business Day immediately following the date of the Friendly
Transaction Announcement.

	 	 	 	 	 

	 	 	Default Settlement Method:
	 	Cash Settlement

	 	 	 	 	 

	 	 	Forward Cash Settlement

Amount:
	 	The Number of Shares to be Delivered multiplied by the Settlement Price;
provided that in the case of a Second Settlement occurring after an early
termination or cancellation of the relevant Transaction pursuant to Section
6 of the Agreement or Article 12 of the Equity Definitions, the Forward Cash
Settlement Amount shall equal the lesser of (i) zero and (ii)(x) the Payment
Amount that would have been calculated for such early termination or
cancellation if the word “Adjusted” had been deleted from the definition of
Number of Shares to be Delivered, as determined by the Calculation Agent
(with an amount that would have been owed by Counterparty expressed as a
negative number for purposes of this calculation) minus (y) the actual
Payment Amount calculated for such early termination or cancellation.







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	 	 	Settlement Price:
	 	The average of the VWAP Prices (or, in the case of a Second
Settlement, the Relevant Prices) for the Exchange Business Days in the
Settlement Valuation Period, subject to Valuation Disruption as specified in
the Master Confirmation or, in the case of a Second Settlement, subject to
Section 6.6(a) of the Equity Definitions as if such dates were Valuation
Dates.

	 	 	 	 	 

	 	 	Settlement Valuation Period:
	 	A number of Scheduled Trading Days selected by
GS&Co. in its reasonable discretion, beginning on the Scheduled Trading Day
immediately following the earlier of (i) the Scheduled Termination Date or
(ii) the Exchange Business Day immediately following the date of delivery of
an Acceleration Notice or, in the case of a Second Settlement, the date of
the Friendly Transaction Announcement.

	 	 	 	 	 

	 	 	Cash Settlement:
	 	If Cash Settlement is applicable, then Buyer
shall pay to Seller the absolute value of the Forward Cash Settlement Amount
on the Cash Settlement Payment Date.

	 	 	 	 	 

	 	 	Cash Settlement

Payment Date:
	 	The date one Settlement Cycle following the last day of the
Settlement Valuation Period.

	 	 	 	 	 

	 	 	Net Share Settlement

Procedures:
	 	If Net Share Settlement is applicable, Net Share Settlement shall be
made in accordance with paragraphs 2 through 7 below.







     2.    Net Share Settlement shall be made by delivery on the Cash Settlement Payment Date of a
number of Shares satisfying the conditions set forth in paragraph 3 below (the “Registered
Settlement Shares”), or a number of Shares not satisfying such conditions (the “Unregistered
Settlement Shares”), in either case with a value equal to the absolute value of the Forward Cash
Settlement Amount, with such Shares’ value based on the value thereof to GS&Co. (which value shall,
in the case of Unregistered Settlement Shares, take into account a commercially reasonable
illiquidity discount), in each case as determined by the Calculation Agent.



     3.    Counterparty may only deliver Registered Settlement Shares pursuant to paragraph 2 above
if:



         (a)  a registration statement covering public resale of the Registered Settlement Shares by
GS&Co. (the “Registration Statement”) shall have been filed with the Securities and Exchange
Commission under the Securities Act and been declared or otherwise become effective on or prior to
the date of delivery, and no stop order shall be in effect with respect to the Registration
Statement; a printed prospectus relating to the Registered Settlement Shares (including any
prospectus supplement thereto, the “Prospectus”) shall have been delivered to GS&Co., in such
quantities as GS&Co. shall reasonably have requested, on or prior to the date of delivery;



         (b)  the form and content of the Registration Statement and the Prospectus (including, without
limitation, any sections describing the plan of distribution) shall be commercially reasonably
satisfactory to GS&Co.;



         (c)  as of or prior to the date of delivery, GS&Co. and its agents shall have been afforded a
reasonable opportunity to conduct a due diligence investigation with respect to Counterparty
customary in scope for



2









 







underwritten offerings of equity securities and the results of such investigation are
commercially reasonably satisfactory to GS&Co.; and



         (d)  as of the date of delivery, an agreement (the “Underwriting Agreement”) shall have been
entered into with GS&Co. in connection with the public resale of the Registered Settlement Shares
by GS&Co. substantially similar to underwriting agreements customary for underwritten offerings of
equity securities, in form and substance commercially reasonably satisfactory to GS&Co., which
Underwriting Agreement shall include, without limitation, provisions substantially similar to those
contained in such underwriting agreements relating, without limitation, to the indemnification of,
and contribution in connection with the liability of, GS&Co. and its affiliates and the provision
of customary opinions, accountants’ comfort letters and lawyers’ negative assurance letters.



     4.    If Counterparty delivers Unregistered Settlement Shares pursuant to paragraph 2 above:



         (a)  all Unregistered Settlement Shares shall be delivered to GS&Co. (or any affiliate of
GS&Co. designated by GS&Co.) pursuant to the exemption from the registration requirements of the
Securities Act provided by Section 4(2) thereof;



         (b)  as of or prior to the date of delivery, GS&Co. and any potential purchaser of any such
shares from GS&Co. (or any affiliate of GS&Co. designated by GS&Co.) identified by GS&Co. shall be
afforded a commercially reasonable opportunity to conduct a due diligence investigation with
respect to Counterparty customary in scope for private placements of equity securities (including,
without limitation, the right to have made available to them for inspection all financial and other
records, pertinent corporate documents and other information reasonably requested by them);



         (c)  as of the date of delivery, Counterparty shall enter into an agreement (a “Private
Placement Agreement”) with GS&Co. (or any affiliate of GS&Co. designated by GS&Co.) in connection
with the private placement of such shares by Counterparty to GS&Co. (or any such affiliate) and the
private resale of such shares by GS&Co. (or any such affiliate), substantially similar to private
placement purchase agreements customary for private placements of equity securities, in form and
substance commercially reasonably satisfactory to GS&Co., which Private Placement Agreement shall
include, without limitation, provisions substantially similar to those contained in such private
placement purchase agreements relating, without limitation, to the indemnification of, and
contribution in connection with the liability of, GS&Co. and its affiliates and the provision of
customary opinions, accountants’ comfort letters and lawyers’ negative assurance letters, and shall
provide for the payment by Counterparty of all fees and expenses in connection with such resale,
including all fees and expenses of counsel for GS&Co., and shall contain representations,
warranties, covenants and agreements of Counterparty reasonably necessary or advisable to establish
and maintain the availability of an exemption from the registration requirements of the Securities
Act for such resales; and



         (d)  in connection with the private placement of such shares by Counterparty to GS&Co. (or any
such affiliate) and the private resale of such shares by GS&Co. (or any such affiliate),
Counterparty shall, if so requested by GS&Co., prepare, in cooperation with GS&Co., a private
placement memorandum in form and substance commercially reasonably satisfactory to GS&Co.



     5.    GS&Co., itself or through an affiliate (the “Selling Agent”) or any underwriter(s), will
sell all, or such lesser portion as may be required hereunder, of the Registered Settlement Shares
or Unregistered Settlement Shares and any Makewhole Shares (as defined below) (together, the
"Settlement Shares”) delivered by Counterparty to GS&Co. pursuant to paragraph 6 below commencing
on the Cash Settlement Payment Date and continuing until the date on which the aggregate Net
Proceeds (as such term is defined below) of such sales, as determined by GS&Co., is equal to the
absolute value of the Forward Cash Settlement Amount (such date, the “Final Resale Date”). If the
proceeds of any sale(s) made by GS&Co., the Selling Agent or any underwriter(s), net of any fees
and commissions (including, without limitation, underwriting or placement fees) customary for
similar transactions under the circumstances at the time of the offering, together with carrying
charges and expenses incurred in connection with the offer and sale of the Shares (including, but
without limitation to, the covering of any over-allotment or short position (syndicate or
otherwise)) (the “Net Proceeds”) exceed the absolute value of the Forward Cash Settlement Amount,
GS&Co. will refund, in USD, such excess to Counterparty on the date that is



3









 







three (3) Currency Business Days following the Final Resale Date, and, if any portion of the
Settlement Shares remains unsold, GS&Co. shall return to Counterparty on that date such unsold
Shares.



     6.    If the Calculation Agent determines that the Net Proceeds received from the sale of the
Registered Settlement Shares or Unregistered Settlement Shares or any Makewhole Shares, if any,
pursuant to this paragraph 6 are less than the absolute value of the Forward Cash Settlement Amount
(the amount in USD by which the Net Proceeds are less than the absolute value of the Forward Cash
Settlement Amount being the “Shortfall” and the date on which such determination is made, the
"Deficiency Determination Date”), Counterparty shall on the Exchange Business Day next succeeding
the Deficiency Determination Date (the “Makewhole Notice Date”) deliver to GS&Co., through the
Selling Agent, a notice of Counterparty’s election that Counterparty shall either (i) pay an amount
in cash equal to the Shortfall on the day that is one (1) Currency Business Day after the Makewhole
Notice Date, or (ii) deliver additional Shares. If Counterparty elects to deliver to GS&Co.
additional Shares, then Counterparty shall deliver additional Shares in compliance with the terms
and conditions of paragraph 3 or paragraph 4 above, as the case may be (the “Makewhole Shares”), on
the first Clearance System Business Day which is also an Exchange Business Day following the
Makewhole Notice Date in such number as the Calculation Agent reasonably believes would have a
market value on that Exchange Business Day equal to the Shortfall. Such Makewhole Shares shall be
sold by GS&Co. in accordance with the provisions above; provided that if the sum of the Net
Proceeds from the sale of the originally delivered Shares and the Net Proceeds from the sale of any
Makewhole Shares is less than the absolute value of the Forward Cash Settlement Amount then
Counterparty shall, at its election, either make such cash payment or deliver to GS&Co. further
Makewhole Shares until such Shortfall has been reduced to zero.



     7.    Notwithstanding the foregoing, in no event shall the aggregate number of Settlement Shares
and Makewhole Shares be greater than the Reserved Shares minus the amount of any Shares actually
delivered by Counterparty under any other Transaction(s) under this Master Confirmation (the result
of such calculation, the “Capped Number”). Counterparty represents and warrants (which shall be
deemed to be repeated on each day that a Transaction is outstanding) that the Capped Number is
equal to or less than the number of Shares determined according to the following formula:



A — B




	 	 	 	 	 	 	 
	 

	 	Where
	 	A =
	 	the number of authorized but unissued shares of the
Counterparty that are not reserved for future issuance on the date of the
determination of the Capped Number; and
	 
	 	 	 	 	 	 
	 

	 	 	 	B =
	 	the maximum number of Shares required to be delivered to third parties
if Counterparty elected Net Share Settlement of all transactions in the
Shares (other than Transactions in the Shares under this Master
Confirmation) with all third parties that are then currently outstanding and
unexercised.






     "Reserved Shares” means initially, [X,XXX] Shares. The Reserved Shares may be increased or
decreased in a Supplemental Confirmation.




4