EX-10.3 LETTER AGREEMENT DATED NOVEMBER 8, 2007



 





Exhibit 10.3




	 	 	 
	 

	 	November 8, 2007
	 
	 	 
	To:

	 	Oxford Industries, Inc.

222 Piedmont Avenue, N.E.

Atlanta, Georgia 30308

Attn: Thomas C. Chubb III

Telephone:   404 653 1415

Facsimile:    404 653 1545
	 
	 	 
	From

	 	Bank of America, N.A.

c/o Banc of America Securities LLC 

9 West 57th Street, 40th Floor 

New York, NY 10019

Attn: John Servidio 

Telephone: 212-847-6527

Facsimile:  212-230-8610
	 
	 	 
	Re:

	 	Issuer Forward Repurchase Transaction

(Transaction Reference Number: NY-32445)






Ladies and Gentlemen:




     The purpose of this communication (this “Confirmation”) is to confirm the terms and conditions
of the Transaction entered into between Bank of America, N.A. (“BofA”) and Oxford Industries, Inc.
(“Counterparty”) on the Trade Date specified below (the “Transaction”). The terms of the
Transaction shall be set forth in this Confirmation and a Supplemental Terms Notice in the form of
Schedule A hereto (the “Supplemental Terms Notice”) that references this Confirmation. This
Confirmation and the Supplemental Terms Notice together shall constitute a “Confirmation” as
referred to in the ISDA Master Agreement specified below.


1.            This Confirmation is subject to, and incorporates, the definitions and provisions of the 2000
ISDA Definitions (including the Annex thereto) (the “2000 Definitions”) and the definitions and
provisions of the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”, and together
with the 2000 Definitions, the “Definitions”), in each case as published by the International Swaps
and Derivatives Association, Inc. (“ISDA”). In the event of any inconsistency between the 2000
Definitions and the Equity Definitions, the Equity Definitions will govern.




     This Confirmation evidences a complete and binding agreement between BofA and Counterparty as
to the terms of the Transaction to which this Confirmation relates. This Confirmation shall be
subject to an agreement (the “Agreement”) in the form of the 2002 ISDA Master Agreement (the “ISDA
Form”) as if BofA and Counterparty had executed an agreement in such form (without any Schedule but
with the elections set forth in this Confirmation). The Transaction shall be the only Transaction
under the Agreement.



     All provisions contained in, or incorporated by reference to, the Agreement will govern this
Confirmation except as expressly modified herein. In the event of any inconsistency between this
Confirmation and either the Definitions or the Agreement, this Confirmation shall govern. The
Transaction is a Share Forward Transaction within the meaning set forth in the Equity Definitions.



 









 




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




	 	 	 
	General Terms:
	 	 
	 
	 	 
	Trade Date:

	 	November 8, 2007
	 
	 	 
	Seller:

	 	BofA
	 
	 	 
	Buyer:

	 	Counterparty
	 
	 	 
	Shares:

	 	The common stock of Counterparty, per value USD 1.00 per share

(Ticker Symobol: “OXM”)
	 
	 	 
	Prepayment:

	 	Applicable
	 
	 	 
	Prepayment Amount:

	 	USD 60,000,000
	 
	 	 
	Prepayment Date:

	 	The Trade Date
	 
	 	 
	Exchange:

	 	New York Stock Exchange
	 
	 	 
	Related Exchange(s):

	 	All Exchanges
	 
	 	 
	Calculation Agent:

	 	Bank of America, N.A. The Calculation Agent shall perform all
calculations and determinations hereunder in good faith and a commercially
reasonable manner. Following any calculation by the Calculation Agent under this
Confirmation, at the request of the Counterparty, the Calculation Agent shall
provide to the Counterparty by electronic mail a report (in a commonly used file
format for the storage and manipulation of financial data) setting forth in
reasonable detail the basis for such calculation.
	Valuation Terms:
	 	 
	 
	 	 
	Initial Period Averaging Dates:

	 	Each of the consecutive Exchange Business Days
commencing on, and including, the Trade Date and ending on, and including, the
Initial Period End Date (or if such date is not an Exchange Business Day, the next
following Exchange Business Day).
	 
	 	 
	Initial Period End Date:

	 	November 27, 2007; provided that BofA shall have the right, in
its absolute discretion, at any time to accelerate the Initial Period End Date to
any date that is on or after November 19, 2007 by delivery of a Supplemental Terms
Notice to Counterparty on the date of acceleration. On the Initial Period End
Date, BofA shall determine the Scheduled Final Averaging Date, the Scheduled
Earliest Acceleration Date, the Initial Price and the Minimum Shares in the manner
set forth below, and shall deliver to Counterparty a Supplemental Terms Notice
substantially in the form of Schedule A to this Confirmation.
	 
	 	 
	Averaging Dates:

	 	Each of the consecutive Exchange Business Days commencing on, and
including, the Exchange Business Day immediately following the Initial Period End
Date and ending on and including the Final Averaging Date.
	 
	 	 
	Final Averaging Date:

	 	As set forth in the Supplemental Terms Notice, to be the
date 6 months following the Initial Period End Date (or if such date is not an
Exchange Business Day, the next following Exchange Business Day); provided that
BofA shall have the right, in its absolute discretion, at any time to accelerate
the Final Averaging Date to any date that is on or after the Scheduled Earliest
Acceleration Date by written notice to Counterparty no later than the date of
acceleration.
	 
	 	 
	Scheduled Earliest Acceleration Date:
	 	The date set forth as such in the Supplemental Terms Notice, to be the
date 4 months following the Initial Period End Date (or if such date is not an
Exchange Business Day, the next following Exchange Business Day).



















 






	 	 	 
	Valuation Date:
	 	The last Averaging Date.
	 
	 	 
	Averaging Date Disruption:
	 	Modified Postponement, provided
that notwithstanding anything to the contrary in the Equity
Definitions, if a Market Disruption Event occurs on any Initial
Period Averaging Date or any Averaging Date, the Calculation Agent
may, if appropriate in light of market conditions, regulatory
considerations or otherwise, take any or all of the following
actions: (i) postpone the Initial Period End Date or the Final
Averaging Date, as the case may be, in accordance with Modified
Postponement or (ii) determine that such Initial Period Averaging
Date or Averaging Date is a Disrupted Day only in part, in which
case the Calculation Agent shall make
adjustments to the number of Shares for which such day shall
be an Initial Period Averaging Date or
Averaging Date and determine the Initial Price or Settlement
Price, as the case may be, based on an
appropriately weighted average instead of the
arithmetic average described under “Initial
Price” or “Settlement Price,” as the
case may be, below. Such determination and adjustments will
be based on, among other factors, the duration of any Market Disruption Event
and the volume, historical
trading patterns and price of the Shares. Following
any action by the Calculation Agent
with respect to an Averaging Date Disruption, the
Calculation Agent shall provide to
Counterparty, by electronic mail, a report setting
forth in reasonable detail the event that triggered such action and
the basis upon which any determination or
adjustment has been made hereunder, unless, in the
case of a Regulatory Disruption, BofA
or the Calculation Agent has been advised by counsel not to render
such report.
	 
	 	 
	Market Disruption Events:
	 	The first sentence of Section
6.3(a) of the Equity Definitions is hereby amended (A) by deleting
the words “during the one hour period that ends at the relevant
Valuation Time” in the third and fourth lines thereof, and (B)
by replacing the words “or (iii) an Early Closure.” by
“(iii) an Early Closure, or (iv) a Regulatory Disruption.”
	 
	 	 
	Regulatory Disruption:
	 	Any event that BofA reasonably
determines, based on advice of counsel, would require, or
make it advisable or appropriate for, with regard 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 BofA
(provided that such voluntarily adopted requirements, policies
or procedures have been either (i) adopted for general application
prior to the Trade Date or (ii) adopted for general application after
the Trade Date and after Counterparty has been notified, if
reasonably practicable, of such adoption), in each case including,
without limitation, Rule 10b-18, Rule 10b-5, Regulation 13D-G and
Regulation 14E under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), and Regulation M), BofA to
refrain from or decrease any market activity in connection with the
Transaction. BofA shall notify Counterparty as soon as reasonably
practicable that a Regulatory Disruption has occurred, the Initial
Period Averaging Dates or Averaging Dates affected by it and the
basis upon which it has determined that a Regulatory Disruption has
occurred, unless BofA has been advised by counsel not to disclose such basis.






 









 






	 	 	 
	Settlement Terms:
	 	 
	 
	 	 
	Initial Share Delivery:
	 	On the Initial Share Delivery Date,
BofA shall deliver to Counterparty the Initial Shares.
	 
	 	 
	Initial Share Delivery Date:
	 	November 13, 2007.
	 
	 	 
	Initial Shares:
	 	1,500,000 Shares
	 
	 	 
	Minimum Share Delivery:
	 	On the Minimum Share Delivery Date, BofA shall deliver to
	 
	 	Counterparty a number of Shares equal to (a) the Minimum Shares minus (b) the
	 
	 	number of Initial Shares; provided that, if such difference is less than zero, no
	 
	 	Shares shall be delivered on the Minimum Share Delivery Date.
	 
	 	 
	Minimum Share Delivery Date:
	 	The first Exchange Business Day
following the Initial Period End Date.
	 
	 	 
	Minimum Shares:
	 	As set forth in the Supplemental
Terms Notice, to be a number of Shares equal to (a) the Prepayment Amount divided by (b) the product of 120% and the
	 
	 	Initial Price.
	 
	 	 
	Initial Price:
	 	As set forth in the Supplemental Terms Notice, to be the arithmetic
	 
	 	average of the VWAP Prices for all Initial Period Averaging Dates.
	 
	 	 
	Settlement Date:
	 	The date that falls one Settlement Cycle following the Valuation Date.
	 
	 	 
	Settlement:
	 	On the Settlement Date, BofA shall deliver to Counterparty the Number of
	 
	 	Shares to be Delivered, if a positive number. If, as a result of Section 9 below,
	 
	 	the Number of Shares to be Delivered is a negative number, the Counterparty
	 
	 	Settlement Provisions in Annex A shall apply.
	 
	 	 
	Number of Shares to be Delivered:
	 	A number of Shares equal to (a) the
Prepayment Amount divided by (b) the Settlement Price; provided
that, if such number is less than the Minimum Shares, the Number
of Shares to be Delivered shall equal the Minimum Shares; and
provided further that the Number of Shares to be Delivered as
so determined shall be reduced by the aggregate number of Shares
delivered on the Initial Share Delivery Date
and the Minimum Share Delivery Date, but shall not be reduced below
zero unless the provisions of Section 9 below apply.
	 
	 	 
	Settlement Price:
	 	The arithmetic average of the VWAP Prices for all Averaging Dates.
	 
	 	 
	VWAP Price:
	 	For any Initial Period Averaging Date or Averaging Date, the Rule
	 
	 	10b-18 dollar volume weighted average price per Share for such day based on
	 
	 	transactions executed during such day, as reported on Bloomberg Page “OXM.N
	 
	 	<Equity> AQR SEC”
(or any successor thereto) or, in the event such price is not so
reported on such day for any reason, as reasonably determined by the Calculation Agent.
	 
	 	 
	Excess Dividend Amount:
	 	For the avoidance of doubt, all
references to the Excess Dividend Amount in Section 9.2(a)(iii) of the Equity Definitions shall be deleted.
	 
	 	 
	Other Applicable Provisions:
	 	To the extent BofA is obligated to
deliver Shares hereunder, the provisions of Sections 9.1(c), 9.8,
9.9, 9.10, 9.11 (except that the Representation and Agreement
contained in Section 9.11 of the Equity Definitions shall be modified by excluding any






 









 






	 	 	 
	 
	 	representations therein relating to
restrictions, obligations, limitations or requirements under
applicable securities laws that exist
as a result of the fact that Counterparty is the Issuer of the
Shares) and 9.12 of the Equity
Definitions 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” means that BofA is obligated to deliver
Shares hereunder.
	Dividends:
	 	 
	 
	 	 
	Dividend:
	 	Any dividend or distribution on the Shares other than any dividend or
	 
	 	distribution of the type described in Sections 11.2(e)(i), 11.2(e)(ii)(A) or
	 
	 	11.2(e)(ii)(B) of the Equity Definitions.
	Share Adjustments:
	 	 
	 
	 	 
	Method of Adjustment:
	 	Calculation Agent Adjustment;
provided that Dividends shall not be Potential Adjustment Events.
	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
	 
	 	 
	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
	 
	 	 
	Composition of Combined
Consideration:
	 	Not Applicable
	 
	 	 
	Consequences of Announcement
Events:
	 	Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the
	 
	 	Equity Definitions; provided that references to “Tender Offer” shall be replaced
	 
	 	by references to “Announcement Event” and references to “Tender Offer Date” shall
	 
	 	be replaced by references to “Announcement Date.”  An Announcement Event shall be
	 
	 	an “Extraordinary Event” for purposes of the Equity Definitions, to which Article
	 
	 	12 of the Equity Definitions is applicable.
	 
	 	 
	Announcement Event:
	 	The occurrence of an Announcement
Date in respect of a potential Acquisition Transaction (as defined in Section 9 below).
	 
	 	 
	Announcement Date:
	 	The date of the first public
announcement in relation to an Acquisition Transaction, or any
publicly announced change or amendment to the announcement giving rise to an Announcement Date.
	 
	 	 
	Provisions applicable to Merger
Events and Tender Offers:
	 	The consequences set forth opposite “Consequences of Merger
	 
	 	Events” and “Consequences of Tender Offers” above shall apply regardless of
	 
	 	whether a particular Merger Event or Tender Offer relates to an Announcement Date
	 
	 	for which an adjustment has been
made pursuant to Consequences of Announcement Events, without duplication of any such adjustment.






 









 






	 	 	 
	Nationalization, Insolvency or
Delisting:
	 	Cancellation and Payment (Calculation Agent Determination); provided that in
	 
	 	addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it
	 
	 	will 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 Market or the NASDAQ
Global Select 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 thereafter be deemed to be the Exchange.
	 
	 	 
	Additional Disruption Events:
	 	 
	 
	 	 
	Change in Law:
	 	Applicable
	 
	 	 
	Failure to Deliver:
	 	Applicable
	 
	 	 
	Insolvency Filing:
	 	Applicable
	 
	 	 
	Hedging Disruption:
	 	Applicable
	 
	 	 
	Increased Cost of Hedging:
	 	Applicable
	 
	 	 
	Loss of Stock Borrow:
	 	Applicable
	 
	 	 
	Maximum Stock Loan Rate:
	 	100 basis points
	 
	 	 
	Hedging Party:
	 	For all applicable Additional Disruption Events, BofA
	 
	 	 
	Determining Party:
	 	For all Extraordinary Events, BofA
	 
	 	 
	Non-Reliance:
	 	Applicable
	 
	 	 
	Agreements and Acknowledgments
Regarding Hedging Activities:
	 	Applicable
	 
	 	 
	Additional Acknowledgments:
	 	Applicable





3.                 Account Details:




	 	 	 	 	 
	 

	 	(a) Account for delivery of Shares
to Counterparty:
	 	To be provided by Counterparty
	 
	 	 	 	 
	 

	 	(b) Account for payments to
Counterparty:
	 	To be provided by Counterparty
	 
	 	 	 	 
	 

	 	(c) Account for payments to BofA:	 	 





Bank of America

New York, NY

SWIFT: BOFAUS65

Bank Routing: 026- 009- 593

Account Name: Bank of America

Account No. : 0012333- 34172



4.            Offices:




     (a) The Office of Counterparty for the Transaction is: Counterparty is not a
Multibranch Party



 









 





     (b) The Office of BofA for the Transaction is:


Bank of America, N.A.

c/o Banc of America Securities LLC

9 West 57th Street, 40th Floor

New York, NY 10019



5.           Notices: For purposes of this Confirmation:




     (a) Address for notices or communications to Counterparty:


Oxford Industries, Inc.

222 Piedmont Avenue, N.E.

Atlanta, Georgia 30308




     (b) Address for notices or communications to BofA:


Bank of America, N.A.

c/o Banc of America Securities LLC

9 West 57th Street, 40th Floor

New York, NY 10019

Attn: John Servidio

Telephone: 212-847-6527

Facsimile: 212-230-8610



6.           Additional Provisions Relating to Transactions in the Shares.




     (a) Counterparty acknowledges and agrees that the Shares delivered on the Initial Share
Delivery Date and the Minimum Share Delivery Date may be sold short to Counterparty. Counterparty
further acknowledges and agrees that BofA may, during (i) the period from the date hereof to the
Valuation Date or, if later, the Scheduled Earliest Acceleration Date without regard to any
adjustment thereof pursuant to “Special Provisions Relating to Friendly Transaction Announcements”
below, and (ii) the period from and including the first Settlement Valuation Date to and including
the last Settlement Valuation Date (together, the “Relevant Period”), purchase Shares in
connection with the Transaction, which Shares may be used to cover all or a portion of such short
sale or may be delivered to Counterparty. Such purchases will be conducted independently of
Counterparty. The timing of such purchases by BofA, the number of Shares purchased by BofA on any
day, the price paid per Share pursuant to such purchases and the manner in which such purchases
are made, including without limitation whether such purchases are made on any securities exchange
or privately, shall be within the absolute discretion of BofA. It is the intent of the parties
that the Transaction comply with the requirements of Rule 10b5-1(c)(1)(i)(B) of the Exchange Act,
and the parties agree that this Confirmation shall be interpreted to comply with the requirements
of Rule 10b5-1(c), and Counterparty shall not take any action that results in the Transaction not
so
complying with such requirements. Without limiting the generality of the preceding sentence,
Counterparty acknowledges and agrees that (A) Counterparty does not have, and shall not attempt to
exercise, any influence over how, when or whether BofA effects any purchases of Shares in
connection with the Transaction, (B) during the period beginning on (but excluding) the date of
this Confirmation and ending on (and including) the last day of the Relevant Period, neither
Counterparty nor its officers or employees shall, directly or indirectly, communicate any
information regarding Counterparty or the Shares to any employee of BofA or its Affiliates
responsible for trading the Shares in connection with the transactions contemplated hereby, (C)
Counterparty is entering into the Transaction in good faith and not as part of a plan or scheme to
evade compliance with federal securities laws including, without limitation, Rule 10b-5
promulgated under the Exchange Act and (D) Counterparty will not alter or deviate from this
Confirmation or enter into or alter a corresponding hedging transaction with respect to the
Shares. Counterparty also acknowledges and agrees that any amendment, modification, waiver or
termination of this Confirmation must be effected in accordance with the requirements for the
amendment or termination of a “plan” as defined in Rule 10b5-1(c) under the Exchange Act. 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 under the Exchange Act, and no such amendment, modification or waiver shall be made at any
time at which Counterparty or any officer or director of Counterparty is aware of any material
nonpublic information regarding Counterparty or the Shares.



 









 





     (b) Counterparty agrees that neither Counterparty nor any of its Affiliates or agents shall
take any action that would cause Regulation M to be applicable to any purchases of Shares, or any
security for which the Shares are a reference security (as defined in Regulation M), by
Counterparty or any of its affiliated purchasers (as defined in Regulation M) during the Relevant
Period, unless Counterparty has provided written notice to BofA of a planned “distribution” (as
defined in Regulation M) of Shares or any security for which Shares are a reference security not
later than the opening of trading on the first day of the relevant “restricted period” (as defined
in Regulation M). Counterparty acknowledges that any such notice is likely to result in a
Regulatory Disruption and that its notice must comply with the standards set forth in Section
6(a).



     (c) Counterparty shall, at least one day prior to the first day of the Relevant Period,
notify BofA of the total number of Shares purchased in Rule 10b-18 purchases of blocks pursuant to
the once-a-week block exception contained in Rule 10b-18(b)(4) by or for Counterparty or any of
its affiliated purchasers during each of the four calendar weeks preceding the first day of the
Relevant Period and during the calendar week in which the first day of the Relevant Period occurs
(“Rule 10b-18 purchase”, “blocks” and “affiliated purchaser” each being used as defined in Rule
10b-18), which notice shall be substantially in the form set forth as Appendix A hereto.



     (d) During the Relevant Period, Counterparty shall (i) notify BofA prior to the opening of
trading in the Shares on any day on which Counterparty makes, or expects to be made, any public
announcement (as defined in Rule 165(f) under the Securities Act of 1933, as amended (the
“Securities Act”)) of any merger, acquisition, or similar transaction involving a recapitalization
relating to Counterparty (other than any such transaction in which the consideration consists
solely of cash and there is no valuation period), (ii) promptly notify BofA following any such
announcement that such announcement has been made, and (iii) promptly deliver to BofA following
the making of any such announcement a certificate indicating (A) Counterparty’s average daily Rule
10b-18 purchases (as defined in Rule 10b-18) during the three full calendar months preceding the
date of the announcement of such transaction and (B) Counterparty’s block purchases (as defined in
Rule 10b-18) effected pursuant to paragraph (b)(4) of Rule 10b-18 during the three full calendar
months preceding the date of the announcement of such transaction. In addition, Counterparty
shall promptly notify BofA 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 public
announcement may result in a Regulatory Disruption and may cause the Relevant Period to be
suspended. Accordingly, Counterparty acknowledges that its actions in relation to any such
announcement or transaction must comply with the standards set forth in Section 6(a).



     (e) Without the prior written consent of BofA, until all settlements under the Transaction
have occurred, Counterparty shall not, and shall cause its Affiliates and affiliated purchasers
(each as defined in Rule 10b-18) not to, directly or indirectly (including, without limitation, by
means of a cash-settled or other 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 an equivalent interest, including a unit of beneficial interest in a trust or limited
partnership or a depository
share) or any security convertible into or exchangeable for Shares, other than purchases from
employees of Counterparty that are not “10b-18 purchases” as such term is defined in Rule 10b-18.
During such time, any purchases of Shares (or any security convertible into or exchangeable for
Shares) by Counterparty shall be made through BAS, which is an Affiliate of BofA, pursuant to a
letter substantially in the form of Appendix B hereto and subject to such conditions as
BofA shall impose, and shall be in compliance with Rule 10b-18 or otherwise in a manner that
Counterparty and BofA believe is in compliance with applicable requirements (including, without
limitation, Rule 10b-5, Regulation 13D-G and Regulation 14E under the Exchange Act).


7.            Representations, Warranties and Agreements.




          (a) In addition to the representations, warranties and agreements in the Agreement and those
contained elsewhere herein, Counterparty represents and warrants to and for the benefit of, and
agrees with, BofA as follows:





     (i) (A) None of Counterparty and its officers and directors is aware of any material
nonpublic information regarding Counterparty or the Shares and (B) all reports and other
documents filed by Counterparty with the Securities and Exchange Commission pursuant to the
Exchange Act when considered as a whole (with the more recent such reports and documents
deemed to amend inconsistent statements contained in any earlier such reports and
documents), do not contain any untrue statement of a material fact or any omission



 









 






of a material fact required to be stated therein or necessary to make the statements therein, in
the light of the circumstances in which they were made, not misleading.




     (ii) Without limiting the generality of Section 13.1 of the Equity Definitions,
Counterparty acknowledges that BofA is not making any representations or warranties with
respect to the treatment of the Transaction under FASB Statements 133, as amended, or 150,
EITF Issue No. 00-19 (or any successor issue statements) or under FASB’s Liabilities &
Equity Project.




     (iii) Without limiting the generality of Section 3(a)(iii) of the Agreement, the
Transaction will not violate Rule 13e-1 or Rule 13e-4 under the Exchange Act.




     (iv) Prior to the Trade Date, Counterparty shall deliver to BofA a resolution of
Counterparty’s board of directors authorizing the Transaction and such other certificate or
certificates as BofA shall reasonably request. Counterparty has publicly disclosed on the
date hereof its intention to institute a program for the acquisition of Shares.




     (v) Counterparty is not entering into this Confirmation to create actual or apparent
trading activity in the Shares (or any security convertible into or exchangeable for
Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any
security convertible into or exchangeable for Shares) or otherwise in violation of the
Exchange Act, and will not engage in any other securities or derivative transaction to such
ends.




     (vi) Counterparty is not, and after giving effect to the transactions contemplated
hereby will not be, an “investment company” as such term is defined in the Investment
Company Act of 1940, as amended.




     (vii) On the Trade Date, the Prepayment Date, the Initial Share Delivery Date, the
Minimum Share Delivery Date, the Settlement Date and the Second Settlement Date, if any,
(A) the assets of Counterparty at their fair valuation exceed the liabilities of
Counterparty, including contingent liabilities, (B) the capital of Counterparty is adequate
to conduct the business of Counterparty and (C) Counterparty 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.




     (viii) Counterparty shall not (i) declare any ordinary cash dividend on the Shares
with a record date occurring prior to June 2, 2008, except for (x) a one time ordinary cash
dividend of up to $0.21 with a record
date occurring on or after February 14, 2008, and (y) a one time ordinary cash dividend of
up to $0.21 with a record date occurring on or after May 14, 2008, or (ii) declare any
Dividend (as defined above) other than an ordinary cash dividend on the Shares, in either
case that affects any Dividend for which the ex-dividend date occurs during the period from
and including the Trade Date to and including the Valuation Date; provided that nothing in
this paragraph (viii) shall preclude Counterparty from adopting a shareholder rights plan.
The parties agree and acknowledge that monetary damages are not the appropriate remedy for
any breach or attempted breach of the covenant contained in this paragraph (viii), and that
specific performance shall be the exclusive remedy for such a breach or attempted breach.
BofA shall have no right to monetary damages in respect of any such breach, and
Counterparty shall raise no objection to BofA’s choice of specific performance as a remedy.
If Counterparty shall declare a dividend in violation of this paragraph (viii), or
otherwise announce an intention to pay a dividend on the Common Stock not permitted by this
paragraph (viii), and BofA is not successful in promptly obtaining an injunction or similar
remedy as contemplated by this paragraph (viii), an Additional Termination Event shall be
deemed to have occurred, with Counterparty as the sole Affected Party and the Transaction
as the sole Affected Transaction; provided that the amount calculated under Section 6(e) of
the Agreement shall not include any payment to BofA in respect of such dividend.



          (b) Each of BofA and Counterparty agrees and represents that it is an “eligible contract
participant” as defined in Section 1a(12) of the U.S. Commodity Exchange Act, as amended.




     (c) Each of BofA and Counterparty acknowledges that the offer and sale of the Transaction to
it is intended to be exempt from registration under the Securities Act, by virtue of Section 4(2)
thereof. Accordingly, Counterparty



 









 







represents and warrants to BofA that (i) it has the financial
ability to bear the economic risk of its investment in the Transaction and is able to bear a total
loss of its investment, (ii) it is an “accredited investor” as that term is defined in Regulation
D as promulgated under the Securities Act, (iii) it is entering into the Transaction for its own
account and without a view to the distribution or resale thereof, and (iv) the assignment,
transfer or other disposition of the Transaction has not been and will not be registered under the
Securities Act and is restricted under this Confirmation, the Securities Act and state securities
laws.



     (d) The parties hereto agree and acknowledge that BofA is a “financial institution,” “swap
participant” and “financial participant” within the meaning of Sections 101(22), 101(53C) and
101(22A) of Title 11 of the United States Code (the “Bankruptcy Code”). The parties hereto
further agree and acknowledge that (A) this Confirmation is (i) a “securities contract,” as such
term is defined in Section 741(7) of the Bankruptcy Code, with respect to which each payment and
delivery hereunder or in connection herewith is a “settlement payment” within the meaning of
Sections 362 and 546 of the Bankruptcy Code and (ii) a “swap agreement,” as such term is defined
in Section 101(53B) of the Bankruptcy Code, with respect to which each payment and delivery
hereunder or in connection herewith is a “transfer” and a “payment or other transfer of property”
within the meaning of Sections 362 and 546 of the Bankruptcy Code, and (B) BofA is entitled to the
protections afforded by, among other sections, Sections 362(b)(6), 362(b)(17), 362(o), 546(e),
546(g), 555, 560 and 561 of the Bankruptcy Code.


8.           Agreements and Acknowledgements Regarding Hedging.




     Counterparty acknowledges and agrees that:



     (a) During the Relevant Period, BofA 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 adjust its hedge position with respect to the Transaction;



     (b) BofA and its Affiliates also may be active in the market for Shares other than in
connection with hedging activities in relation to the Transaction;



     (c) BofA 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 Settlement Price
and/or the VWAP Price; and



     (d) Any market activities of BofA and its Affiliates with respect to Shares may affect the
market price and volatility of Shares, as well as the Settlement Price and/or the VWAP Price, each
in a manner that may be adverse to Counterparty.


9.            Special Provisions regarding Friendly Transaction Announcements.




     (a) If a Friendly Transaction Announcement occurs on or prior to the Settlement Date and the
impact of such Friendly Transaction Announcement on the market for the Shares is material, as
determined by the Calculation Agent in a commercially reasonable manner, then the Number of Shares
to be Delivered shall be determined as if the first proviso were deleted from the definition
thereof (and, for the avoidance of doubt, in such event the Number of Shares to be Delivered may
be reduced below zero pursuant to the last proviso to such definition). If a Friendly Transaction
Announcement occurs after the Trade Date but prior to the Scheduled Earliest Acceleration Date,
the Scheduled Earliest Acceleration Date shall be adjusted to be the date of such Friendly
Transaction Announcement. If a Friendly Transaction Announcement occurs after the Settlement Date
or any earlier date of termination or cancellation of the Transaction pursuant to Section 6 of the
Agreement or Article 12 of the Equity Definitions, then a second settlement (a “Second
Settlement”) shall occur (notwithstanding such earlier termination or cancellation) with a
settlement date (the “Second Settlement Date”) determined in accordance with Annex A and 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 or earlier date of termination or
cancellation minus (y) the Number of Shares to be Delivered determined pursuant to Section 2 of
this Confirmation without regard to this Section 9 (provided that in the case of a Second
Settlement occurring after such an earlier date of



 









 







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) a Transaction Announcement by Counterparty
or its board of directors prior to the last day of the Relevant Period or any earlier date of
termination or cancellation of the Transaction pursuant to Section 6 of the Agreement or Article
12 of the Equity Definitions (such earlier date, the “Actual Termination Date”), (ii) an
announcement prior to the date three months following the Actual Termination Date that an
Acquisition Transaction that is the subject of a 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, prior to the date three months following
the Actual Termination Date, in respect of an Acquisition Transaction that is the subject of a
Transaction Announcement occurring prior to the Actual Termination Date, the absence of a
recommendation that its shareholders reject such transaction.



          “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 to enter into an Acquisition Transaction, (iii) the announcement of
an 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 this definition of Transaction Announcement refer to
any public announcement whether made by the Issuer or a third party.



          “Acquisition Transaction” means (i) any Merger Event (and 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 as if the clause beginning immediately following the definition
of Reverse Merger therein to the end of such definition were deleted) or Tender Offer, 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 value of the aggregate consideration
transferable or receivable by or to Counterparty or its subsidiaries exceeds USD 150,000,000 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.            Other Provisions.




     (a) Alternative Calculations and Payment on Early Termination and on Certain Extraordinary
Events. If either party would owe the other party any amount pursuant to Sections 12.2, 12.3,
12.6, 12.7 or 12.9 of the Equity Definitions (except in the event of an Insolvency, a
Nationalization, a Tender Offer or a Merger Event, in each case, in which the consideration or
proceeds to be paid to holders of Shares consists solely of cash) or pursuant to Section 6(d)(ii)
of the Agreement (except in the event of an Event of Default in which Counterparty is the
Defaulting Party or a Termination Event in which Counterparty is the Affected Party, that resulted
from an event or events within Counterparty’s control) (a “Payment Obligation”), Counterparty
shall have the right, in its sole discretion, to satisfy or to require BofA to satisfy, as the
case may be, any such Payment Obligation by the Share Termination Alternative (as defined below)
by giving irrevocable telephonic notice to BofA, confirmed in writing within one Scheduled Trading
Day, between the hours of 9:00 A.M. and 4:00 P.M. New York City time on the Merger Date, Tender
Offer Date, Announcement Date or Early Termination Date, as applicable (“Notice of Share
Termination”). Upon such Notice of Share Termination, the following provisions shall apply on the
Scheduled Trading Day immediately following the Merger Date, the Tender Offer Date, Announcement
Date or Early Termination Date, as applicable:



	 	 	 
	Share Termination Alternative:

	 	Applicable and means, if delivery
pursuant to the Share Termination
Alternative is owed by BofA, that BofA
shall deliver to Counterparty the Share
Termination Delivery Property on the date
on which the Payment Obligation would
otherwise be due pursuant to Section 12.7
or 12.9 of the Equity Definitions or
Section 6(d)(ii) of






 









 






	 	 	 
	 

	 	the Agreement, as
applicable (the “Share Termination
Payment Date”), in satisfaction of the
Payment Obligation. If delivery pursuant
to the Share Termination Alternative is
owed by Counterparty, paragraphs 2
through 6 of Annex A shall apply as if
such delivery were a settlement of the
Transaction to which Net Share Settlement
(as defined in Annex A) applied, the Cash
Settlement Payment Date were the Early
Termination Date, the Forward Cash
Settlement Amount were zero (0) minus the
Payment Obligation owed by Counterparty,
and “Shares” as used in Annex A were
replaced by “Share Termination Delivery
Units.”
	 
	 	 
	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 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 BofA at the time of notification
of the Payment Obligation.
	 
	 	 
	Share Termination Delivery Unit:


	 	In the case of a Termination Event, Event
of Default or Delisting, one Share or, in
the case of an Insolvency,
Nationalization, Merger Event or Tender
Offer, 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
fractional amounts of any securities) in
such Insolvency, Nationalization, Merger
Event or Tender Offer. If such
Insolvency, Nationalization, Merger Event
or
Tender Offer 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:

	 	Applicable
	 
	 	 
	Other applicable provisions:

















	 	If Share Termination Alternative is
applicable, the provisions of
Sections 9.8, 9.9, 9.10, 9.11 (except that the
Representation and Agreement contained in
Section 9.11 of the Equity Definitions shall
be modified by excluding any representations
therein relating to restrictions,
obligations, limitations or requirements
under applicable securities laws that exist
as a result of the fact that Counterparty is
the Issuer of the Shares) and 9.12 of the
Equity Definitions will be applicable, except
that all references in such provisions to
“Physically-Settled” shall be read as
references to “settled by Share Termination
Alternative” and all references to “Shares”
shall be read as references to “Share
Termination Delivery Units”.






     (b) Equity Rights. BofA 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. For the avoidance of doubt, the parties
agree that the preceding sentence shall not apply at any time other than during Counterparty’s
bankruptcy to any claim arising as a result of a breach by Counterparty of any of its obligations
under this Confirmation or the Agreement. For the avoidance of doubt, the parties acknowledge that
this Confirmation is not secured by any collateral that would otherwise secure the obligations of
Counterparty herein under or pursuant to any other agreement.



     (c) Indemnification. In the event that BofA or the Calculation Agent or any of their
Affiliates becomes involved in any capacity in any action, proceeding or investigation brought by
or against any person in



 









 







connection with any matter referred to in this Confirmation and arising
out of any breach by Counterparty of its representations or covenants contained in this
Confirmation or out of any violation by Counterparty of the antifraud and anti-manipulation
provisions of the federal securities laws in connection with the transactions contemplated by this
Confirmation, Counterparty shall reimburse BofA or the Calculation Agent or such Affiliate for its
reasonable legal and other out-of-pocket expenses (including the cost of any investigation and
preparation) incurred in connection therewith within 30 days of receipt of notice of such expenses,
and shall indemnify and hold BofA or the Calculation Agent or such Affiliate harmless on an
after-tax basis against any losses, claims, damages or liabilities to which BofA or the Calculation
Agent or such Affiliate may become subject in connection with any such action, proceeding or
investigation. Counterparty will not be liable under the foregoing indemnification provision to the
extent that any loss, claim, damage, liability or expense results from the breach of this
Confirmation by BofA or the Calculation Agent, or the willful misconduct, bad faith or negligence
of either such party. The reimbursement and indemnity obligations of Counterparty under this
Section 10(c) shall be in addition to any liability that Counterparty may otherwise have, shall
extend upon the same terms and conditions to the partners, directors, officers, agents, employees
and controlling persons (if any), as the case may be, of BofA or the Calculation Agent and their
Affiliates and shall be binding upon and inure to the benefit of any successors, assigns, heirs and
personal representatives of Counterparty, BofA or the Calculation Agent, any such Affiliate and any
such person. Counterparty also agrees that neither BofA, the Calculation Agent nor any of such
Affiliates, partners, directors, officers, agents, employees or controlling persons shall have any
liability to Counterparty for or in connection with any matter referred to in this Confirmation
except to the extent that any losses, claims, damages, liabilities or expenses incurred by
Counterparty result from the negligence, willful misconduct, or bad faith of BofA or the
Calculation Agent or a breach by BofA or the Calculation Agent of any of its covenants or
obligations hereunder. The foregoing provisions shall survive any termination or completion of the
Transaction.



          (d) Staggered Settlement. BofA may, by notice to Counterparty prior to the Settlement Date (a
“Nominal Settlement Date”), elect to deliver the Shares deliverable on such Nominal Settlement Date
on two or more dates (each, a “Staggered Settlement Date”) or at two or more times on the Nominal
Settlement Date as follows: (i) in such notice, BofA will specify to Counterparty the related
Staggered Settlement Dates (each of which will be on or prior to such Nominal Settlement Date) or
delivery times and how it will allocate the Shares it is required to deliver under “Physical
Settlement” among the Staggered Settlement Dates or delivery times; and (ii) the aggregate number
of Shares that
BofA will deliver to Counterparty hereunder on all such Staggered Settlement Dates and delivery
times will equal the number of Shares that BofA would otherwise be required to deliver on such
Nominal Settlement Date.




          (e) Transfer and Assignment. Notwithstanding anything to the contrary in the Agreement, BofA
may, without the consent of Counterparty, transfer, assign and set over all of its rights and
obligations hereunder and under the Agreement to an Affiliate of BofA whose obligations are
guaranteed by Bank of America Corporation.




     (f) Amendments to Equity Definitions. The following amendments shall be made to the Equity
Definitions:




     (i) The first sentence of Section 11.2(c) of the Equity Definitions, prior to clause
(A) thereof, is hereby amended to read as follows: ‘(c) If “Calculation Agent Adjustment” is
specified as the Method of Adjustment in the related Confirmation of a Share Option
Transaction or Share Forward Transaction, then following the announcement or occurrence 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
options on the Shares and, if so, will (i) make appropriate adjustment(s), if any, to any
one or more of:’ and clause (B) thereof is hereby amended by inserting, after ‘the Forward
Price,’ ‘the Minimum Shares,’ and the portion of such sentence immediately preceding clause
(ii) thereof is hereby amended by deleting the words “diluting or concentrative” and the
words “(provided that no adjustments will be made to account solely for changes in
volatility, expected dividends, stock loan rate or liquidity relative to the relevant
Shares)” and replacing such latter phrase with the words “(and, for the avoidance of doubt,
adjustments may be made to account solely for changes in volatility, stock loan rate or
liquidity relative to the relevant Shares)”; and




     (ii) Section 12.6(a)(ii) of the Equity Definitions is hereby amended by (1) deleting
from the fourth line thereof the word “or” after the word “official” and inserting a comma
therefor, and (2) deleting the semi-colon at the end of subsection (B) thereof and inserting
the following words therefor “or (C) at BofA’s option, the occurrence of any of the events
specified in Section 5(a)(vii) (1) through (9) of the ISDA Master Agreement with respect to
that issuer”.



 









 





     (g) No Netting and Set-off. Notwithstanding any provision of the Agreement (including
without limitation Section 6(f) thereof) and this Confirmation or any other agreement between the
parties to the contrary, neither party shall net or set off its obligations under the Transaction
against its rights against the other party under any other transaction or instrument.



          (h) Disclosure. Effective from the date of commencement of discussions concerning the
Transaction, Counterparty 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 Counterparty relating to such tax treatment and tax structure.




     (i) Designation by BofA. Notwithstanding any other provision in this Confirmation to the
contrary, BofA (the “Designator”) may designate any of its Affiliates (the “Designee”) to deliver
and otherwise perform its obligations to deliver any Shares or other securities in respect of the
Transaction, and the Designee may assume such obligations, if any. Such designation shall not
relieve the Designator of any of its obligations, if any, hereunder. Notwithstanding the previous
sentence, if the Designee shall have performed the obligations, if any, of the Designator
hereunder, then the Designator shall be discharged of its obligations, if any, to Counterparty to
the extent of such performance.



          (j) Termination Currency. The Termination Currency shall be USD.




     (k) Agreements regarding the Supplemental Terms Notice.




     (i) Counterparty accepts and agrees to be bound by the contractual terms and conditions
as set forth in the Supplemental Terms Notice for the Transaction. Upon receipt of the
Supplemental Terms Notice, Counterparty shall promptly execute and return the Supplemental
Terms Notice to BofA; provided that Counterparty’s failure to so execute and return the
Supplemental Terms Notice shall not affect the binding nature
of the Supplemental Terms Notice, and the terms set forth therein shall be binding on
Counterparty to the same extent, and with the same force and effect, as if Counterparty had
executed a written version of the Supplemental Terms Notice.




     (ii) Counterparty and BofA agree and acknowledge that (A) the transactions contemplated
by this Confirmation will be entered into in reliance on the fact that this Confirmation and
the Supplemental Terms Notice form a single agreement between Counterparty and BofA, and
BofA would not otherwise enter into such transactions, (B) this Confirmation, as amended by
the Supplemental Terms Notice, 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”); (C) the Supplemental Terms Notice, regardless of whether the Supplemental Terms
Notice is transmitted electronically or otherwise, 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 (D) this 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
Confirmation, as supplemented by the Supplemental Terms Notice.




     (iii) Counterparty and BofA further agree and acknowledge that this Confirmation, as
supplemented by the Supplemental Terms Notice, constitutes a contract “for the sale or
purchase of a security”, as set forth in Section 8-113 of the Uniform Commercial Code of New
York.



     (l) Waiver of Trial by Jury. EACH OF COUNTERPARTY AND BOFA HEREBY IRREVOCABLY WAIVES (ON ITS
OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS STOCKHOLDERS) ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT
OR OTHERWISE) ARISING OUT OF OR RELATING TO THE TRANSACTION OR THE ACTIONS OF BOFA OR ITS
AFFILIATES IN THE NEGOTIATION, PERFORMANCE OR ENFORCEMENT HEREOF.



     (m) Governing Law. THIS CONFIRMATION SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK AND THE UNITED STATES COURT FOR THE SOUTHERN DISTRICT OF NEW YORK IN CONNECTION WITH ALL
MATTERS RELATING HERETO AND WAIVE ANY OBJECTION TO THE LAYING OF VENUE IN, AND ANY CLAIM OF
INCONVENIENT FORUM WITH RESPECT TO, THESE COURTS.



 









 





     Please confirm your agreement to be bound by the terms stated herein by executing the copy of
this Confirmation enclosed for that purpose and returning it to us by mail or facsimile
transmission to the address for Notices indicated above.




	 	 	 	 	 	 	 
	 

	 	 	 	      Yours sincerely,	 	 
	 
	 	 	 	 	 	 
	 

	 	BANK
	 	OF AMERICA, N.A.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	      /s/ Jake Mendelsohn	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:      Jake Mendelsohn

Title:      Vice President	 	 






Confirmed as of the date first above written:




OXFORD INDUSTRIES, INC.




	 	 	 	 	 
	 

	 	 	 	     
	By:

	 	/s/ Thomas C. Chubb III	 	 
	 

	 	 	 	 
	Name: 

Title:

	 	      Thomas C. Chubb III

      Executive Vice President	 	 







 












 





SCHEDULE A




SUPPLEMENTAL TERMS NOTICE




	 	 	 
	To:

	 	Oxford Industries, Inc.
	 

	 	222 Piedmont Avenue, N.E.
	 

	 	Atlanta, Georgia 30308
	 
	 	 
	From:

	 	Bank of America, N.A.
	 
	 	 
	Subject:

	 	Issuer Forward Repurchase Transaction
	 
	 	 
	Ref. No:

	 	NY-32445
	 
	 	 
	Date:

	 	November 8, 2007






Ladies and Gentlemen:




     The purpose of this Supplemental Terms Notice is to notify you of certain terms of the
Transaction dated November 8, 2007 between Bank of America, N.A. (“BofA”) and Oxford Industries,
Inc. (“Counterparty”).



     The definitions and provisions contained in the Confirmation dated as of November 8, 2007
between BofA and Counterparty (the “Confirmation”) are incorporated into this Supplemental Terms
Notice. In the event of any inconsistency between those definitions and provisions and this
Supplemental Terms Notice, this Supplemental Terms Notice will govern.


1. The terms of the Transaction to which this Supplemental Terms Notice relates are as follows:




	 	 	 
	Initial Period End Date:

	 	[                    ]
	 
	 	 
	Final Averaging Date:

	 	[                    ] [the date 6 months following the
Initial Period End Date (or if such date is not an Exchange Business Day, the
next following Exchange Business Day)], subject to BofA’s right to accelerate
the Final Averaging Date set forth in the Confirmation.
	 
	 	 
	Scheduled Earliest
	 	 
	Acceleration Date:

	 	[                    ] [the date 4 months following the Initial Period End
Date (or if such date is not an Exchange Business Day, the next following
Exchange Business Day)]
	 
	 	 
	Initial Price:

	 	USD[                    ] per Share [the arithmetic average of the VWAP Prices for all
Initial Period Averaging Dates]
	 
	 	 
	Minimum Shares:

	 	[                    ] [a number of Shares equal to (a) the Prepayment Amount
divided by (b) the product of 120% and the Initial Price]






 









 





	 	 	 	 	 
	 	 	     Yours sincerely,
	 	 	BANK OF AMERICA, N.A.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 






Receipt Acknowledged:




OXFORD INDUSTRIES, INC.




	 	 	 	 	 
	By:

	 	 	 	 
	 

	 	 	 	 
	Name:
	 	 	 	 
	Title:
	 	 	 	 






 









 





APPENDIX A




[Counterparty Letterhead]




Bank of America, N.A.

c/o Banc of America Securities LLC

9 W. 57th Street

New York, New York 10019

Attn: John Servidio




	 	 	 	 	 
	 

	 	Re:
	 	Issuer Forward Repurchase Transaction






Ladies and Gentlemen:




     In connection with our entry into a confirmation between you and us dated as of November 8,
2007 (the “Confirmation”), we hereby represent that set forth below is the total number of shares
of our common stock purchased by or for us or any of our affiliated purchasers in Rule 10b-18
purchases of blocks pursuant to the once-a-week block exception contained in Rule 10b-18(b)(4) (all
defined in Rule 10b-18 under the Securities Exchange Act of 1934, as amended) during the four full
calendar weeks immediately preceding the first day of the Relevant Period (as defined in the
Confirmation) and the week during which the first day of the Relevant Period occurs:



	 	 	 	 	 	 	 
	 	 	Monday’s	 	Friday’s	 	Share
	 	 	Date	 	Date	 	Number
	Week 4:
	 	 	 	 	 	 
	Week 3:
	 	 	 	 	 	 
	Week 2:
	 	 	 	 	 	 
	Week 1:
	 	 	 	 	 	 
	Current Week:
	 	 	 	 	 	 






     We understand that you will use this information in calculating trading volume for purposes of
Rule 10b-18.



	 	 	 	 	 
	 	Very truly yours,



OXFORD INDUSTRIES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 









 





APPENDIX B




[Date]




[Counterparty]

[Address]




	 	 	 	 	 
	 

	 	Re:
	 	Issuer Forward Repurchase Transaction






Ladies and Gentlemen:




     Reference is made to the Issuer Forward Repurchase Transaction documented by a Confirmation
between you and Bank of America, N.A. dated as of November 8, 2007 (the “Confirmation”).
Capitalized terms used without definition in this letter have the definitions assigned to them in
the Confirmation.



     In Section 6(e) of the Confirmation, BofA has agreed that you may purchase Shares during the
Relevant Period, subject to the following procedures:




     (i) all such purchases will be made by Banc of America Securities LLC (“BAS”) in
accordance with Rule 10b-18(b) or otherwise in a manner that you and BAS believe is in
compliance with applicable requirements;




     (ii) each purchase order you place with BAS will be an all or nothing order to purchase
a minimum of 10,000 Shares;




     (iii) you will pay to BAS a $0.03 per share commission for each Share purchased; and




     (iv) you agree that, in purchasing Shares, BAS may purchase Shares for the account of
BofA, which is an Affiliate of BAS, other than any single block of 10,000 or more Shares,
without your prior consent; you acknowledge that, because any orders you place pursuant to
the above procedures will be all or nothing orders, other orders to purchase Shares
(including orders placed by BofA or BAS) may reduce the number of Shares available for
purchase and may therefore impact your ability to obtain execution of any such all or
nothing orders.



 









 





     We may terminate this letter agreement upon the effectiveness of any change in applicable law
or regulation that would cause the procedures set forth herein to impede BofA’s ability to execute
appropriate trading transactions in relation to BofA’s obligations under the Confirmation in a
manner consistent with applicable law and regulation.



     Please indicate your agreement to, and acknowledgment of, the above by signing and returning
to us a copy of this letter.



	 	 	 	 	 
	 	Very truly yours,



BANK OF AMERICA, N.A.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Acknowledged and agreed to as of

the date first above written,




OXFORD INDUSTRIES, INC.




	 	 	 	 	 
	By:

	 	 	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 






 









 





ANNEX A




COUNTERPARTY SETTLEMENT PROVISIONS




     1. The following Counterparty Settlement Provisions shall apply to the extent indicated under
the 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 BofA in
writing on the date it notifies BofA of its election that, as of such date, (A) none of
Counterparty and its officers and directors is aware of any material nonpublic information
regarding Counterparty or the Shares and (B) all reports and other documents filed by
Counterparty with the Securities and Exchange Commission pursuant to the Exchange Act when
considered as a whole (with the more recent such reports and documents deemed to amend
inconsistent statements contained in any earlier such reports and documents), do not
contain any untrue statement of a material fact or any omission of a material fact required
to be stated therein or necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading.
	 
	 	 
	Electing Party:

	 	Counterparty
	 
	 	 
	Settlement Method Election Date:

	 	The date 10 Exchange Business Days prior to the Valuation Date; provided that if
BofA accelerates the Final Averaging Date pursuant to the proviso to the definition of
Final Averaging Date, the Settlement Method Election Date shall be the Exchange Business
Day immediately following the Valuation Date; and provided further that if a Friendly
Transaction Announcement occurs after the Settlement Date or an earlier termination or
cancellation of the Transaction pursuant to Section 6 of the Agreement or Article 12 of the
Equity Definitions, the Settlement Method Election Date for the Second Settlement shall be
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 Valuation Price;
provided that, in the case of a Second Settlement occurring after an early termination or
cancellation of the 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 amount of the Payment Obligation (the “Payment Amount”) that would have
been calculated for such early termination or cancellation if the first proviso had been
deleted from the definition of Number of Shares to be Delivered (and, for the avoidance of
doubt, in such event the Number of Shares to be Delivered may be reduced below zero
pursuant to the last proviso to such definition) and, for purposes of “Alternative
Calculations and Payment on Early Termination and Certain Extraordinary Events” of the
Confirmation, the relevant Friendly Transaction Announcement had occurred prior to such
calculation, 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.
	 
	 	 
	Settlement Valuation Price:

	 	The arithmetic average of the VWAP Prices for all Settlement
Valuation Dates, subject to Averaging Date Disruption, determined as if each Settlement
Valuation Date were an Averaging Date (with Averaging Date Disruption applying as if the
last Settlement Valuation Date were the Final Averaging Date and the Settlement Valuation
Price were the Settlement Price).
	 
	 	 
	Settlement Valuation Dates:

	 	A number of Scheduled Trading Days selected by BofA in its
reasonable discretion, beginning on the Scheduled Trading Day immediately following the
Final Averaging Date or, in the case of a Second Settlement, the date of the Friendly
Transaction Announcement.
	 
	 	 
	Cash Settlement:
	 	If Cash Settlement is applicable, then Counterparty shall pay to BofA 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 Settlement Valuation Date.
	 
	 	 
	Net Share Settlement Procedures:
	 	If Net Share Settlement is applicable, Net Share Settlement shall be made in
	 

	 	accordance with paragraphs 2 through 5 below.






     2. Net Share Settlement shall be made (i) by delivery on the Cash Settlement Payment Date
(such date, the “Net Share Settlement Date”) of a number of Shares, which will not be registered
for resale (the “Restricted Payment Shares”), with a value equal to 105% of the absolute value of
the Forward Cash Settlement Amount (as adjusted by the Calculation Agent to compensate BofA for its
cost of funds at the Federal Funds Rate during the period (the “Valuation Period”) commencing on
the first Trading Day immediately following the final day of the Averaging Period and ending on the
Final Resale Date (as defined in paragraph 4 below)), with such Shares’ value based on the value
thereof to BofA (which value shall take into account an illiquidity discount), as determined by the
Calculation Agent (the “Restricted Share Value”), and (ii) by delivery of the Make-whole Payment
Shares as described in paragraph 3 below. “Federal Funds Rate” means, for any day, the rate on such
day for Federal Funds, as published by Bloomberg and found by pressing the following letters
“FEDSOPEN” followed by pressing the <Index> key and pressing the following letters “HP”
followed by pressing the <Go> key; provided that if any such day is not a New York Banking
Day, the Federal Funds Rate for such day shall be the Federal Funds Rate for the immediately
preceding New York Banking Day.



     3. If Counterparty delivers Restricted Payment Shares pursuant to paragraph 2 above, and
Make-whole Payment Shares pursuant to paragraph 4 below:



          (a) all Restricted Payment Shares and Make-Whole Payment Shares shall be delivered to BofA (or
any affiliate of BofA designated by BofA) 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, BAS, BofA and any potential purchaser of any such
shares from BofA (or any affiliate of BofA designated by BofA) identified by BofA shall have been
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); and




 









 








          (c) as of the date of delivery, Counterparty shall enter into an agreement (a “Private
Placement Agreement”) with BofA (or any affiliate of BofA designated by BofA) in connection with
the private placement of such shares by Counterparty to BofA (or any such affiliate) and the
private resale of such shares by BofA (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 BofA, which Private Placement Agreement shall
include, without limitation, provisions substantially similar to those contained in such private
placement purchase agreements relating to the indemnification of, and contribution in connection
with the liability of, BofA and its affiliates, 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 BofA, and shall contain representations, warranties 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.




          (d) Counterparty shall not take or cause to be taken any action that would make unavailable
either (i) the exemption set forth in Section 4(2) of the Securities Act for the sale of any
Restricted Payment Shares or Make-Whole Payment Shares by Counterparty to BofA or (ii) an exemption
from the registration requirements of the Securities Act reasonably acceptable to BofA for resales
of Restricted Payment Shares and Make-Whole Payment Shares by the BofA (or an affiliate of BofA).




          (e) Counterparty expressly agrees and acknowledges that the public disclosure of all material
information relating to Counterparty is within Counterparty’s control.




     4. If Restricted Payment Shares are delivered in accordance with paragraph 3 above, on the
last Settlement Valuation Date, a balance (the “Settlement Balance”) shall be established with an
initial balance equal to the absolute value of the Forward Cash Settlement Amount. Following the
delivery of Restricted Payment Shares or any Make-Whole Payment Shares, BofA shall sell all such
Restricted Payment Shares or Make-Whole Payment Shares in a commercially reasonable manner. At the
end of each Exchange Business Day upon which sales have been made, the Settlement Balance shall be
reduced by an amount equal to the aggregate proceeds received by BofA or its affiliate upon the
sale of such Restricted Payment Shares or Make-Whole Payment Shares, less a customary and
commercially reasonable private placement fee for private placements of common stock by similar
issuers. If, on any Exchange Business Day, all Restricted Payment Shares and Make-Whole Payment
Shares have been sold and the Settlement Balance has not been reduced to zero, Counterparty shall
(i) deliver to BofA or as directed by BofA one Settlement Cycle following such Exchange Business
Day an additional number of Shares (the “Make-Whole Payment Shares”) equal to (x) 105% of the
Settlement Balance as of such Exchange Business Day divided by (y) the Restricted Share Value of
the Make-Whole Payment Shares as of such Exchange Business Day or (ii) promptly deliver to BofA
cash in an amount equal to the then remaining Settlement Balance. This provision shall be applied
successively until either the Settlement Balance is reduced to zero or the aggregate number of
Restricted Payment Shares and Make-Whole Payment Shares equals the Maximum Deliverable Number. If
on any Exchange Business Day, Restricted Payment Shares and Make-Whole Payment Shares remain unsold
and the Settlement Balance has been reduced to zero, BofA shall promptly return such unsold
Restricted Payment Shares or Make-Whole Payment Shares.



     5. Notwithstanding the foregoing, in no event shall Counterparty be required to deliver more
than the Maximum Deliverable Number of Shares as Payment Shares hereunder. “Maximum Deliverable
Number” means 7,500,000 Shares. Counterparty represents and warrants to BofA (which representation
and warranty shall be deemed to be repeated on each day from the date hereof to the last Settlement
Valuation Date or, if Counterparty has elected to deliver any Payment Shares hereunder, to the
Final Resale Date) that the Maximum Deliverable Number is equal to or less than the number of
authorized but unissued Shares of Counterparty that are not reserved for future issuance in
connection with transactions in such Shares (other than the transactions under this Confirmation)
on the date of the determination of the Maximum Deliverable Number (such Shares, the “Available
Shares”). In the event Counterparty shall not have delivered the full number of Shares otherwise
deliverable as a result of this paragraph 5 (the resulting deficit, the “Deficit Shares”),
Counterparty 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 Counterparty or any of its
subsidiaries



 









 







after the
date hereof (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 date become no longer so reserved or (iii) Counterparty
additionally authorizes any unissued Shares that are not reserved for other transactions.
Counterparty shall immediately notify BofA of the occurrence of any of the foregoing events
(including the number of Shares subject to clause (i), (ii) or (iii) and the corresponding number
of Shares to be delivered) and promptly deliver such Shares thereafter.