Exhibit 10.1


 


	
   

  	
  

  



 


 


                                                                                                                                November
9, 2007


Mirant Corporation


1155 Perimeter Center West, Suite 100


Atlanta, Georgia 30338


Ladies and Gentlemen:


The
purpose of this letter agreement (this “Confirmation”)
is to confirm the terms and conditions of the Transaction entered into between
J.P. Morgan Securities Inc., as agent for JPMorgan Chase Bank, National
Association, London Branch (the “Seller”), and
Mirant Corporation, a Delaware corporation (the “Purchaser”),
on the Trade Date specified below (the “Transaction”).  This Confirmation constitutes a “Confirmation”
as referred to in the Agreement specified below.  In the event of a conflict between the
Agreement (as defined below) and this Confirmation, the terms of this
Confirmation shall govern.


This
Confirmation evidences a complete and binding agreement between the Seller and
the Purchaser as to the terms of the Transaction to which this Confirmation
relates.  This Confirmation shall
supplement, form a part of, and be subject to an agreement in the form of the
2002 ISDA Master Agreement (the “Agreement”) as
if the Seller and the Purchaser had executed an agreement in such form (but
without any Schedule except for the election of the laws of the State of New
York as the governing law (but without giving regard to its choice of law
provisions)) on the Trade Date.  In the
event of any inconsistency between provisions of that Agreement and this
Confirmation, this Confirmation will prevail for the purpose of the Transaction
to which this Confirmation relates.  The
parties hereby agree that no Transaction other than the Transaction to which
this Confirmation relates shall be governed by the Agreement.


ARTICLE 1

DEFINITIONS


Section
1.01.  Definitions. 
(a) As
used in this Confirmation, the following terms shall have the following
meanings:


“10b-18 VWAP” means, (A) for any Trading Day described in
clause (x) of the definition of Trading Day hereunder, the volume-weighted
average price per share at which the Common Stock trades as reported in the
composite transactions for the principal United States securities exchange on
which such Common Stock is then listed (or, if applicable, the Successor
Exchange on which the Common Stock has been listed in accordance with Section
7.01(c)), on such Trading Day, excluding (i) trades that do not settle regular
way, (ii) opening (regular way) reported trades in the consolidated system on
such Trading Day, (iii) trades that occur in the last ten minutes before the
scheduled close of trading on the Exchange on such Trading Day and ten minutes
before the scheduled close of the primary trading in the market where the trade
is effected, and (iv) trades on such Trading Day that do not satisfy the
requirements of Rule 10b-18(b)(3), as determined in good faith by the
Calculation Agent, or (B) for any Trading Day that is described in clause (y)
of the definition of Trading Day hereunder, an amount determined in good faith
by the Calculation Agent as 10b-18 VWAP. 
The Purchaser acknowledges that the Calculation Agent may refer to the
Bloomberg Page “MIR.N <Equity> AQR SEC” (or any successor thereto), in
its judgment, for such Trading Day to determine the 10b-18 VWAP.


“Additional Termination Event” has the meaning set forth in
Section 7.01.


JPMorgan Chase Bank,
National Association


Organised under the laws of
the United States as a National Banking Association.


Main Office 1111 Polaris
Parkway, Columbus, Ohio 43271


Registered as a branch in
England & Wales branch No. BR000746.


Registered Branch Office
125 London Wall, London EC2Y 5AJ


Authorised and regulated by
the Financial Services Authority


 

















 


“Agreement” has the meaning set forth in the second paragraph
of this Confirmation.


“Affected Party” has the meaning set forth in Section 14 of
the Agreement.


“Affected Transaction” has the meaning set forth in Section
14 of the Agreement.


“Affiliated Purchaser” means any “affiliated purchaser” (as
such term is defined in Rule 10b-18) of the Purchaser.


“Alternative Termination Delivery Unit” means (i) in the case
of a Termination Event (other than a Merger Event or Nationalization) or Event
of Default (as defined in the Agreement), one share of Common Stock and (ii) in
the case of a Merger Event or Nationalization, a unit consisting of the number
or amount of each type of property received by a holder of one share of Common
Stock in such Merger Event or Nationalization; provided
that if such Merger Event involves a choice of consideration to be received by
holders of the Common Stock, an Alternative Termination Delivery Unit shall be
deemed to include the amount of cash received by a holder who had elected to
receive the maximum possible amount of cash as consideration for his shares.


“Bankruptcy Code” has the meaning set forth in Section 9.06.


“Business Day” means any day on which the Exchange is open
for trading.


“Calculation Agent” means JPMorgan Chase Bank, National
Association, London Branch.


“Capped Delivery Shares” means, for any
date, (i) 128 million shares of Common Stock minus
(ii) the number of shares of Common Stock delivered by the Seller to the
Purchaser in respect of this Transaction on or prior to such date, subject to
appropriate adjustments pursuant to Section 8.01.


“Cash Distribution” has the meaning set forth in Section
7.01(f).


“Cash Settlement Amount” has the meaning set forth in Section
3.01(d).


“Cash Settlement Fee” means the amount
specified as such in the Pricing Supplement.


“Cash Settlement Purchase Period” means the period during
which the Seller purchases shares of Common Stock to unwind its hedge position
following the Valuation Completion Date.


“Common Stock” has the meaning set forth in Section 2.01.


“Communications Procedures” has the meaning set forth in
Annex C hereto.


“Confirmation” has the meaning set forth in the first
paragraph of this letter agreement.


“Contract Period” means the period commencing on and
including the Trade Date and ending on and including the date all payments or
deliveries of shares of Common Stock pursuant to Section 3.01 or Section 7.03
have been made.


“Default Notice Day” has the meaning set forth in Section
7.02(a).


“De-Listing” has the meaning set forth in Section 7.01(c).


“Discount” means the amount specified as such in the Pricing
Supplement.


“Distribution Termination Event” has the meaning set forth in
Section 7.01(f).


“Early Termination Date” has the meaning set forth in Section
14 of the Agreement.


 


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“Event of Default” has the meaning set forth in Section 14 of
the Agreement (except that “Event of Default” shall not include the events set
forth in Sections 5(a)(v) and (vi) of the Agreement).


“Exchange” means the New York Stock Exchange.


“Exchange Act” means the Securities Exchange Act of 1934, as
amended.


“Expiration Date” means the 127th Trading Day following the
Trade Date.


“Fair Value Variables” mean, with respect to any calculation or
determination of the fair value of this Transaction to Seller or an amount
payable by or to Seller hereunder, any combination of one or more of the
following variables: (i) stock borrow cost of 50 bps, (ii) interest rates of
4.80% per annum, (iii) no changes in expected or actual dividends since the
Trade Date, (iv) volatility or volatilities (which, for the avoidance of doubt,
shall include the entire volatility surface) at the time of such calculation or
determination, (v) changes to all outstanding shares of Common Stock, such as
in the case of stock splits, stock dividends and mergers, (vi) stock price
experience prior to, and at the time of, such calculation or determination
(including experience as to liquidity of the Common Stock, and whether based on
available market price information, or estimates of trading prices for blocks
of shares, or other relevant information as to prevailing market prices) and
(vii) any and all variables related to time; provided that, under no
circumstances, will such a calculation or determination be based on or
otherwise take into account (i) the stock prices at which the Seller’s open or
terminated hedging transactions are effected or the actual number of shares in
the Seller’s open or terminated hedging transactions or (ii) actual or expected
losses or costs incurred by Seller in connection with terminating, liquidating
or re-establishing any hedge related to the Transaction (or any gain resulting
from any of them).


 


“Initial Number of Shares” means the number of shares of
Common Stock, rounded down to the nearest integer, equal to the Purchase Price divided by the Initial Share Price.


“Initial Settlement Date” has the meaning set forth in
Section 2.02.


“Initial Share Price” means the last reported sale price,
regular way, on the Exchange of one share of Common Stock on the Trade Date.


“Maximum Delivery Shares” means, for any date, (i) 48 million
shares of Common Stock, minus (ii) the
net number of shares of Common Stock delivered by the Purchaser to the Seller
in respect of this Transaction on or prior to such date, plus
(iii) the net number of shares of Common Stock delivered by the Seller to the
Purchaser in respect of this Transaction on or prior to such date, subject to
appropriate adjustments pursuant to Section 8.01.


“Merger Event” has the meaning set forth in Section 7.01(d).


“Nationalization” has the meaning set forth in Section
7.01(e).


“Number of Shares” has the meaning set forth in Section 2.01.


“Pricing Supplement” means the Pricing Supplement attached
hereto as Annex D.


“Private Placement Agreement” has the meaning set forth in
Annex A hereto.


“Private Placement Price” means the private placement value
of a share of Common Stock as determined in accordance with Annex A hereto.


“Private Placement Shares” has the meaning set forth in
Section 3.01(b).


“Private Placement Procedures” has the meaning set forth in
Annex A hereto.


“Private Securities” has the meaning set forth in Annex A
hereto.


 


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“Purchase Price” has the meaning set forth in Section 2.01.


“Purchaser” has the meaning set forth in the first paragraph
of this Confirmation.


“Registered Shares” has the meaning set forth in Section
3.01(b).


“Registered Shares Fee” means the amount
specified as such in the Pricing Supplement.


“Registration Procedures” has the meaning
set forth in Annex B hereto.


“Regulation M” means Regulation M under the Exchange Act.


“Rule 10b-18” means Rule 10b-18 promulgated under the
Exchange Act (or any successor rule thereto).


“SEC” means the Securities and Exchange Commission.


“Securities Act” means the Securities Act of 1933, as
amended.


“Seller” has the meaning set forth in the first paragraph
hereto.


“Seller Termination Share Purchase Period” has the meaning
set forth in Section 7.03.


“Settlement Date” means (i) if Section 3.01(a)(i) is
applicable, the fourth Business Day following the Valuation Completion Date;
(ii) if settlement in cash is applicable pursuant to Section 3.01(d), the date
of such cash payment determined in accordance with Section 3.01(d)(ii); (iii)
if Section 3.01(e) is applicable, the Business Day immediately following the
day on which the Seller informs the Purchaser, pursuant to Annex A hereto, of
the number of Private Placement Shares required to be delivered; and (iv) if
Section 3.01(f) is applicable, each of the dates so advised by the Seller
pursuant to Annex B hereto.


“Settlement Number” means a number of shares of Common Stock,
rounded down to the nearest integer and which number may be negative, equal to
(i) the Valuation Number minus (ii) the
Initial Number of Shares.


“Settlement Purchase Amount”
means an amount in cash equal to (i) the absolute value of the Settlement
Number multiplied by (ii) the arithmetic
average of 10b-18 VWAP for each of the Trading Days in the Cash Settlement
Purchase Period.


“Settlement Shares” has the meaning set forth in Section
3.01(b).


“Share De-listing Event” has the meaning set forth in Section
7.01(c).


“Successor Exchange” has the meaning set forth in Section
7.01(c).


“Termination Amount” has the meaning set forth in Section
7.02(a).


“Termination Event” has the meaning set forth in Section 14
of the Agreement (except that “Termination Event” will not include the event
set forth in Section 5(b)(v) of the Agreement).


“Termination Price” means the value of an Alternative
Termination Delivery Unit to the Seller (determined as provided in Annex A
hereto).


“Termination Settlement Date” has the meaning set forth in
Section 7.03(a).


“Trade Date” has the meaning set forth in Section 2.01.


 


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“Trading Day” means (x) any day (i) other than a Saturday, a
Sunday or a day on which the Exchange is not open for business, (ii) during
which trading of any securities of the Purchaser on any national securities
exchange has not been suspended, (iii) during which there has not been, in the
Calculation Agent’s judgment, a material limitation in the trading of Common
Stock or any options contract or futures contract related to the Common Stock,
and (iv) during which there has been no suspension pursuant to Section 4.02 of
this Confirmation, or (y) any day that, notwithstanding the occurrence of
events contemplated in clauses (ii), (iii) and (iv) of this definition, the
Calculation Agent determines to be a Trading Day.  The Calculation Agent shall explain the basis
for any determination made pursuant to clause (iii) to the Purchaser.


“Transaction” has the meaning set forth in the first
paragraph of this Confirmation.


“Valuation Completion Date” has the meaning set forth in the
Pricing Supplement.


“Valuation Number” means (i) the Purchase Price divided by (ii) the arithmetic average of 10b-18 VWAP for
each of the Trading Days in the Valuation Period minus
the Discount, as determined by the Calculation Agent in its sole judgment.


“Valuation Period” means the period of consecutive Trading
Days commencing on and including the second Trading Day following the Trade
Date and ending on and including the Valuation Completion Date.


ARTICLE 2

PURCHASE OF THE STOCK


Section
2.01.  Purchase of the Stock.  Subject to the terms and conditions of this
Confirmation, the Purchaser agrees to purchase from the Seller, and the Seller
agrees to sell to the Purchaser, on November 9, 2007 or on such other Business
Day as the Purchaser and the Seller shall otherwise agree in writing (the “Trade Date”), a number of shares (the “Number of
Shares”) of the Purchaser’s common stock, par value $0.01 per share
(“Common Stock”), for a purchase price
equal to $1,000,000,000 (the “Purchase Price”).  The Number of Shares purchased by the
Purchaser hereunder shall be determined in accordance with the terms of this
Confirmation.


Section
2.02.  Delivery and Payments.  (a) On the second Business Day immediately following
the Trade Date (such day, the “Initial Settlement Date”),
the Seller shall deliver the Initial Number of Shares to the Purchaser upon
payment by the Purchaser of an amount equal to the Purchase Price to the
Seller; provided that if the Seller is unable to
borrow or otherwise acquire a number of shares of Common Stock equal to the
Initial Number of Shares for delivery to the Purchaser on the Initial
Settlement Date, the Initial Number of Shares shall be reduced to such number
of shares of Common Stock as the Seller is able to borrow or otherwise acquire
and any amounts payable by the Purchaser pursuant to this Article 2 shall be
reduced correspondingly.  Such delivery
and payment shall be effected in accordance with the Seller’s customary
procedures.


(b)           Notwithstanding Section 2.02(a), the Seller may deliver the Initial
Number of Shares to be delivered on the Initial Settlement Date at two or more
times or on two or more dates, each time on delivery-versus-payment basis; provided that (i) the first of such
deliveries will be on the Initial Settlement Date, (ii) the last of such
deliveries will be no later than on the third Trading Day following the Initial
Settlement Date, and (iii) the aggregate number of shares of Common Stock that
the Seller shall deliver to the Purchaser hereunder in all such deliveries
shall equal the Initial Number of Shares.


Section
2.03.  Conditions to Seller’s Obligations.  The Seller’s obligation to deliver the Initial Number
of Shares to the Purchaser on the Initial Settlement Date is subject to the
condition that the representations and warranties made by the Purchaser in the
Agreement shall be true and correct as of the date hereof and the Initial
Settlement Date.


 


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ARTICLE 3

SUBSEQUENT PAYMENTS OR SHARE DELIVERIES


Section
3.01.  Subsequent Payments or Share Deliveries.  (a) (i) If the Settlement Number is greater than zero,
the Seller shall deliver to the Purchaser a number of shares of Common Stock
equal to the Settlement Number on the Settlement Date in accordance with the
Seller’s customary procedures; and


(ii)           if the Settlement Number is less than
zero, the Purchaser shall make a payment of cash or delivery of shares of
Common Stock to the Seller in respect of the absolute value of the Settlement
Number, as provided in this Section 3.01.


(b)           Subject to Section 3.01(c), payment
of the absolute value of the Settlement Number by the Purchaser to the Seller
shall be in cash or validly issued shares of Common Stock (“Settlement Shares”), and if in shares of Common Stock, then
in shares to be sold in a private placement (“Private
Placement Shares”) or registered shares (“Registered
Shares”), as the Purchaser shall elect, which binding election shall
be made by written notice to the Seller no later than the close of business on
the second Business Day following the Valuation Completion Date; provided that by making an election to deliver Settlement
Shares pursuant to this Section 3.01(b), the Purchaser shall be deemed to make
the representations and warranties in Section 5.01 as if made on the date of
the Purchaser’s election; and provided further
that if the Purchaser fails to make such election by such date, the Purchaser
shall be deemed to have elected settlement in cash.


(c)           (i)            Any
election by the Purchaser to deliver the absolute value of the Settlement
Number in Settlement Shares pursuant to clause (b) of this Section 3.01 shall
not be valid, and settlement in cash shall apply, if the representations and
warranties made by the Purchaser to the Seller in Section 5.01 are not true and
correct in all material respects as of the date the Purchaser makes such
election.


(ii)           Notwithstanding any election by the
Purchaser to make payment of the absolute value of the Settlement Number in
Settlement Shares, at any time prior to the time the Seller (or any affiliate
of the Seller) has contracted to resell all or any portion of such Settlement
Shares, the Purchaser may elect to deliver in lieu of such Settlement Shares an
amount in cash equal to the absolute value of the Settlement Number with
respect to any Settlement Shares not yet contracted to be sold, in which case
the provisions of Section 3.01(d) shall apply with respect to such amount; provided that any such election by the Purchaser pursuant to
this clause (ii) shall not be valid and settlement in Settlement Shares shall
continue to apply if the representations and warranties made by the Purchaser
to the Seller in Section 5.01(a) are not true and correct in all material
respects as of the date the Purchaser makes such election.


(iii)          If the Purchaser elects to make
payment of the absolute value of the Settlement Number (A) in Private Placement
Shares and fails to comply with the requirements set forth in Section 3.01(e)
or Annex A hereto or takes any action that would make unavailable either (1)
the exemption set forth in Section 4(2) of the Securities Act for the sale of
any Private Placement Shares by the Purchaser to the Seller or (2) an exemption
from the registration requirements of the Securities Act reasonably acceptable
to the Seller for resales of Private Placement Shares by the Seller, or (B) in
Registered Shares and fails to comply with the requirements set forth in
Section 3.01(f) or Annex B hereto; then in the case of either (A) or (B), the
Purchaser shall deliver in lieu of any Private Placement Shares or Registered
Shares an amount in cash equal to the absolute value of the Settlement Number
with respect to any Settlement Shares not yet sold, in which case the
provisions of Section 3.01(d) shall apply with respect to such amount.


(d)           (i)            If
the Purchaser elects to pay the absolute value of the Settlement Number in
cash, if settlement in cash is otherwise applicable in accordance with this
Section 3.01, or if the Purchaser elects to make payment of the absolute value
of the Settlement Number in Private Placement Shares pursuant to Section
3.01(e),  then the Calculation Agent
shall determine an amount in cash (the “Cash Settlement Amount”)
equal to (i) the Settlement Purchase Amount plus the Cash Settlement Fee.


(ii)           If cash settlement is applicable,
payment of the Cash Settlement Amount shall be made by wire transfer of
immediately available U.S. dollar funds on the first Business Day immediately 


 


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following the date of
notification by the Seller to the Purchaser of the Cash Settlement Amount or
such later Business Day as determined by the Seller in its sole discretion.


(e)           If the Purchaser elects to make
payment of the absolute value of the Settlement Number in Private Placement
Shares, then on the Settlement Date, the Purchaser shall deliver to the Seller
a number of Settlement Shares equal to (A) the Cash Settlement Amount divided by (B) the Private Placement Price (determined by
the Calculation Agent in accordance with the Private Placement Procedures
contained in Annex A hereto).


(f)            If the Purchaser elects to make
payment of the absolute value of the Settlement Number in Registered Shares,
then the Purchaser shall deliver to the Seller a number of Settlement Shares
equal to (A) the absolute value of the Settlement Number plus
(B) an additional number of Settlement Shares to take into account the
Registered Shares Fee on the absolute value of the Settlement Number.  Such Settlement Shares shall be delivered in
such numbers and on such dates on or following the Valuation Completion Date as
are specified by the Seller in accordance with the Registration Procedures
contained in Annex B hereto.


Section
3.02.  Private Placement Procedures and Registration
Procedures.  If the Purchaser elects to deliver
Private Placement Shares pursuant to Section 3.01(b) or elects to deliver
Alternative Termination Delivery Units pursuant to Section 7.02(a), the Private
Placement Procedures contained in Annex A hereto shall apply, and if the
Purchaser elects to deliver Registered Shares pursuant to Section 3.01(b), the
Registration Procedures contained in Annex B hereto shall apply.


Section
3.03.  Continuing Obligation to Deliver Shares.  (a) If at any time, as a result of provisions limiting
deliveries of shares of Common Stock to the number of Maximum Delivery Shares,
the Purchaser fails to deliver to the Seller any shares of Common Stock, the
Purchaser shall, to the extent that the Purchaser has at such time authorized
but unissued shares of Common Stock not reserved for other purposes, promptly
notify the Seller thereof and deliver to the Seller a number of shares of
Common Stock not previously delivered as a result of such provisions.


(b)           The Purchaser agrees to use its best
efforts to cause the number of authorized but unissued shares of Common Stock
to be increased, if necessary, to an amount sufficient to permit the Purchaser
to fulfill its obligations under this Section 3.03.


ARTICLE 4

MARKET TRANSACTIONS


Section
4.01.  Transactions by the Seller.  (a) The parties agree and acknowledge that:


(i)            During any Cash Settlement Purchase
Period and any Seller Termination Share Purchase Period, the Seller (or its
agent or affiliate) may purchase shares of Common Stock in connection with this
Confirmation.  The timing of such
purchases by the Seller, the price paid per share of Common Stock 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 sole judgment of the Seller; provided that the Seller shall use good
faith efforts to (i) make all purchases of Common Stock in a manner that would
comply with the limitations set forth in clauses (b)(2), (b)(3), (b)(4) and (c)
of Rule 10b-18 (but without regard to clause (a)(13)(iv) of Rule 10b-18) as if
such rule were applicable to such purchases.


(ii)           During the Valuation Period, the
Seller (or its agent or affiliate) may effect transactions in shares of Common
Stock in connection with this Confirmation. 
The timing of such transactions by the Seller, the price paid or
received per share of Common Stock pursuant to such transactions and the manner
in which such transactions are made, including without limitation whether such
transactions are made on any securities exchange or privately, shall be within
the sole judgment of the Seller.


 


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(iii)          The Purchaser shall, at least one day
prior to the first day of the Valuation Period, any Cash Settlement Purchase
Period and any Seller Termination Share Purchase Period, notify the Seller of
the total number of shares of Common Stock purchased in Rule 10b-18 purchases
of blocks pursuant to the once-a-week block exception set forth in Rule
10b-18(b)(4) by or for the Purchaser or any of its Affiliated Purchasers during
each of the four calendar weeks preceding such day and during the calendar week
in which such day occurs (“Rule 10b-18 purchase”
and “blocks” each being used as defined in
Rule 10b-18), which notice shall be substantially in the form set forth as
Exhibit A hereto.


(b)           The Purchaser acknowledges and agrees
that (i) all transactions effected pursuant to Section 4.01 hereunder shall be
made in the Seller’s sole judgment and for the Seller’s own account and (ii)
the Purchaser does not have, and shall not attempt to exercise, any influence
over how, when or whether to effect such transactions, including, without
limitation, the price paid or received per share of Common Stock pursuant to
such transactions whether such transactions are made on any securities exchange
or privately.  It is the intent of the
Seller and the Purchaser that this Transaction comply with the requirements of
Rule 10b5-1(c) of the Exchange Act and that this Confirmation shall be
interpreted to comply with the requirements of Rule 10b5-1(c)(1)(i)(B) and the
Seller shall take no action that results in the Transaction not so complying
with such requirements.


(c)           Notwithstanding anything to the
contrary in this Confirmation, the Purchaser acknowledges and agrees that, on
any day, the Seller shall not be obligated to deliver or receive any shares of
Common Stock to or from the Purchaser and the Purchaser shall not be entitled
to receive any shares of Common Stock from the Seller on such day, to the
extent (but only to the extent) that after such transactions (i) the Seller’s
ultimate parent entity would directly or indirectly beneficially own (as such
term is defined for purposes of Section 13(d) of the Exchange Act) at any time
on such day in excess of 8.0% of the outstanding shares of Common Stock or (ii)
the Seller’s ultimate parent entity would purchase, acquire, or take (as used
in the Federal Power Act) at any time on such day in excess of 8.0% of the
outstanding shares of Common Stock.  Any
purported receipt or delivery of shares of Common Stock shall be void and have
no effect to the extent (but only to the extent) that after any receipt or
delivery of such shares of Common Stock the Seller’s ultimate parent entity
would directly or indirectly so beneficially own or purchase, acquire or take,
as applicable, in excess of 8.0% of the outstanding shares of Common
Stock.  If, on any day, any delivery or
receipt of shares of Common Stock by the Seller is not effected, in whole or in
part, as a result of this provision, the Seller’s and Purchaser’s respective
obligations to make or accept such receipt or delivery shall not be
extinguished and such receipt or delivery shall be effected over time as
promptly as the Seller determines, in the reasonable determination of the
Seller, that after such receipt or delivery its ultimate parent entity would
not directly or indirectly beneficially own in excess of 8.0% of the
outstanding shares of Common Stock.


Section
4.02.  Adjustment of Transaction for
Securities Laws.  (a) Notwithstanding anything to the
contrary in Section 4.01(a), if, based on the advice of counsel, Seller
reasonably determines that on any Trading Day, Seller’s trading activity in
order to manage its economic hedge in respect of the Transaction would not be
advisable in respect of applicable securities laws, then Seller may extend the
Expiration Date, modify the Valuation Period or otherwise adjust the terms of
the Transaction in its good faith reasonable discretion to ensure Seller’s
compliance with such laws and to preserve the fair value of the Transaction to
the Seller.  The Seller shall notify the
Purchaser of the exercise of the Seller’s rights pursuant to this Section 4.02(a)
upon such exercise.  For purposes of this
Section 4.02(a), the fair value of the Transaction to the Seller shall be
determined solely on the basis of the Fair Value Variables.


(b)           The Purchaser agrees that, during the
Contract Period, neither the Purchaser nor any of its affiliates or agents
shall make any distribution (as defined in Regulation M) of Common Stock, or
any security for which the Common Stock is a reference security (as defined in
Regulation M) or take any other action that would, in the view of the Seller,
preclude purchases by the Seller of the Common Stock or cause the Seller to
violate any law, rule or regulation with respect to such purchases.


Section
4.03.  Purchases of Common Stock by the
Purchaser.  Without the prior written consent of the
Seller, the Purchaser 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 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 of Common Stock (or
equivalent interest, including a unit of beneficial interest in a trust or
limited 


 


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partnership or a depository share) or any security
convertible into or exchangeable for shares of Common Stock during the Contract
Period; provided, however, that, without the
prior written consent of the Seller, the Purchaser may (a) purchase shares of
Common Stock pursuant to its publicly announced stock buyback program, so long
as (i) on any day such purchases are conducted solely through the same broker
or dealer used by Seller in effecting purchases of Common Stock in connection with
this Confirmation, (ii) on any Trading Day during the Valuation Period, such
purchases do not exceed 5% of the ADTV (as defined in Rule 10b-18(a)(1)) on
such Trading Day, and (iii) such purchases otherwise comply with other
provisions of Rule 10b-18 and other applicable laws, rules and regulations or
(b) purchase shares from employees of the Purchaser in connection with such
employees’ exercise of rights under a Purchaser employee benefit plan, provided
that such purchases do not prevent any purchases the Purchaser elects to make
pursuant to clause (a) above from complying with the requirements of clause
(a)(iii) above.


ARTICLE 5

REPRESENTATIONS, WARRANTIES AND AGREEMENTS


Section
5.01.  Repeated Representations, Warranties and
Agreements of the Purchaser.  The Purchaser represents and warrants to,
and agrees with, the Seller, on the date hereof and on any date pursuant to
which the Purchaser makes an election to deliver Settlement Shares pursuant to
Section 3.01, to pay cash in lieu of Settlement Shares pursuant to Section
3.01(c)(ii) or to receive or deliver Alternative Termination Delivery Units
pursuant to Section 7.03, that:


(a)           Disclosure; Compliance
with Laws.  The reports and
other documents filed by the Purchaser with the SEC pursuant to the Exchange
Act since the ending date of the Purchaser’s most recent fiscal year, including
filings made on the date hereof, 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.  Subject to the filings made on the date
hereof, the Purchaser is not in possession of any material nonpublic
information regarding the Purchaser or the Common Stock.


(b)           Rule 10b5-1.  The Purchaser acknowledges that (i) the
Purchaser does not have, and shall not attempt to exercise, any influence over
how, when or whether to effect purchases of Common Stock by the Seller (or its
agent or affiliate) in connection with this Confirmation and (ii) the Purchaser
is entering into the Agreement and this Confirmation 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.  The Purchaser 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 amendment,
modification or waiver shall be made at any time at which the Purchaser or any
officer or director of the Purchaser is aware of any material nonpublic
information regarding the Purchaser or the Common Stock.


(c)           Nature of Shares
Delivered.  Any shares of
Common Stock or Alternative Termination Delivery Units delivered to the Seller
pursuant to this Confirmation, when delivered, shall have been duly authorized
and shall be duly and validly issued, fully paid and nonassessable and free of
preemptive or similar rights, and such delivery shall pass title thereto free
and clear of any liens or encumbrances.


(d)           No Manipulation.  The Purchaser is not entering into this
Confirmation to create actual or apparent trading activity in the Common Stock
(or any security convertible into or exchangeable for Common Stock) or to
manipulate the price of the Common Stock (or any security convertible into or
exchangeable for Common Stock).


(e)           Regulation M.  The Purchaser is not engaged in a
distribution, as such term is used in Regulation M, that would preclude
purchases by the Purchaser or the Seller of the Common Stock or cause the
Seller to violate any law, rule or regulation with respect to such purchases.


 


9

















 


(f)            Board Authorization.  The Purchaser is entering into this Transaction
in connection with its share repurchase program, which was approved by its
board of directors and publicly disclosed, solely for the purposes stated in
such board resolution and public disclosure. 
There is no internal policy of the Purchaser, whether written or oral,
that would prohibit the Purchaser from entering into any aspect of this
Transaction, including, but not limited to, the purchases of shares of Common
Stock to be made pursuant hereto.


(g)           Due Authorization and Good
Standing.  The Purchaser is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware.  This
Confirmation has been duly authorized, executed and delivered by the Purchaser
and (assuming due authorization, execution and delivery thereof by the Seller)
constitutes a valid and legally binding obligation of the Purchaser. The
Purchaser has all corporate power to enter into this Confirmation and to
consummate the transactions contemplated hereby and to purchase the Common
Stock and deliver any Settlement Shares in accordance with the terms hereof.


(h)           Certain Transactions.  There has not been any public announcement
(as defined in Rule 165(f) under the Securities Act) of any merger,
acquisition, or similar transaction involving a recapitalization relating to
the Purchaser that would fall within the scope of Rule 10b-18(a)(13)(iv), where
such announcement was within the Purchaser’s control.


Section
5.02.  Initial Representations, Warranties and
Agreements of the Purchaser.  The Purchaser represents and warrants to,
and agrees with the Seller, as of the date hereof, that:


(a)           Solvency.  The assets of the Purchaser at their fair
valuation exceed the liabilities of the Purchaser, including contingent
liabilities; the capital of the Purchaser is adequate to conduct the business
of the Purchaser and the Purchaser 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.


(b)           Required Filings.  The Purchaser has made, and will use
reasonable efforts to make, all filings required to be made by it with the SEC
or any securities exchange with respect to the Transaction contemplated hereby.


(c)           No Conflict.  The execution and delivery by the Purchaser
of, and the performance by the Purchaser of its obligations under, this
Confirmation and the consummation of the transactions herein contemplated do
not conflict with or violate (i) any provision of the certificate of incorporation
or by-laws of the Purchaser, (ii) any statute or order, rule, regulation or
judgment of any court or governmental agency or body having jurisdiction over
the Purchaser or any of its subsidiaries or any of their respective assets or
(iii) any contractual restriction binding on or affecting the Purchaser or any
of its subsidiaries or any of its assets.


(d)           Consents.  All governmental and other consents that are
required to have been obtained by the Purchaser with respect to performance,
execution and delivery of this Confirmation have been obtained and are in full
force and effect and all conditions of any such consents have been complied
with.


(e)           Investment Company Act.  The Purchaser is not and, after giving effect
to the transactions contemplated in this Confirmation, will not be required to
register as an “investment company” as such term is defined in the Investment
Company Act of 1940, as amended.


Section
5.03.  Additional Representations, Warranties and
Agreements.  The Purchaser and the Seller represent
and warrant to, and agree with, each other that:


(a)           Agency.  Each party agrees and
acknowledges that (i) J.P. Morgan Securities Inc., an affiliate of the Seller (“JPMSI”), has acted solely as agent and not as principal with
respect to this Transaction and (ii) JPMSI has no obligation or liability, by way of guaranty,
endorsement or otherwise, in any manner in respect of this Transaction
(including, if applicable, in respect of the settlement thereof).  Each party agrees it will look solely to the
other party (or any guarantor in respect thereof) for performance of such other
party’s obligations under this Transaction. JPMSI is authorized to act as agent
for the Seller.


 


10
















 


(b)           Non-Reliance.  Each party has entered into this Transaction
solely in reliance on its own judgment. 
Neither party has any fiduciary obligation to the other party relating
to this Transaction.  In addition,
neither party has held itself out as advising, or has held out any of its
employees or agents as having the authority to advise, the other party as to
whether or not the other party should enter into this Transaction, any
subsequent actions relating to this Transaction or any other matters relating to
this Transaction.  Neither party shall
have any responsibility or liability whatsoever in respect of any advice of
this nature given, or views expressed, by it or any such persons to the other
party relating to this Transaction, whether or not such advice is given or such
views are expressed at the request of the other party.  The Purchaser has conducted its own analysis
of the legal, accounting, tax and other implications of this Transaction and
consulted such advisors, accountants and counsel as it has deemed necessary.


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


Section
5.04.  Representations and Warranties of the
Seller.  The Seller represents and warrants to the Purchaser
that:


(a)           Due Authorization.  This Confirmation has been duly authorized,
executed and delivered by the Seller and (assuming due authorization, execution
and delivery thereof by the Purchaser) constitutes a valid and legally binding
obligation of the Seller. The Seller has all corporate power to enter into this
Confirmation and to consummate the transactions contemplated hereby and to
deliver the Common Stock in accordance with the terms hereof.


(b)           Right to Transfer.  The Seller will, at the Initial Settlement
Date and on any other day on which it is required to deliver shares of Common Stock to the Purchaser
hereunder, have the
free and unqualified right to transfer the Number of Shares
of Common Stock to be delivered by the Seller pursuant to Sections 2.02 and
3.01 hereof, free and clear of any security interest, mortgage, pledge, lien,
charge, claim, equity or encumbrance of any kind.


ARTICLE 6

ADDITIONAL COVENANTS


Section
6.01.  Purchaser’s Further Assurances.  The Purchaser hereby agrees with the Seller that the
Purchaser shall cooperate with the Seller, and execute and deliver, or use its
best efforts to cause to be executed and delivered, all such other instruments,
and to obtain all consents, approvals or authorizations of any person, and take
all such other actions as the Seller may reasonably request from time to time,
consistent with the terms of this Confirmation, in order to effectuate the
purposes of this Confirmation and the Transaction contemplated hereby.


Section
6.02.  Purchaser’s Hedging Transactions.  The Purchaser hereby agrees with the Seller that the
Purchaser shall not, during the Contract Period, enter into or alter any
corresponding or hedging transaction or position with respect to the Common Stock
(including, without limitation, with respect to any securities convertible or
exchangeable into the Common Stock) and agrees not to alter or deviate from the
terms of this Confirmation.


Section
6.03.  No Communications.  The Purchaser hereby agrees with the Seller that the
Purchaser shall not, directly or indirectly, communicate any information
relating to the Common Stock or this Transaction (including any notices
required by Section 6.05) to any employee of the Seller or J.P. Morgan
Securities Inc., other than as set forth in the Communications Procedures
attached as Annex C hereto.


Section
6.04.  Maximum Deliverable Number of Shares of
Common Stock.  (a) Notwithstanding any other provision
of this Confirmation, the Purchaser shall not be required to deliver Settlement
Shares, or shares of Common Stock or other securities comprising the aggregate
Alternative Termination Delivery Units, in excess of the number of Maximum
Delivery Shares, in each case except to the extent that the Purchaser has
available at such time authorized but unissued shares of such Common Stock or
other securities not expressly reserved for any other uses (including, without
limitation, shares of Common Stock reserved for issuance upon the exercise of
options or convertible debt).  The
Purchaser shall not permit the sum of (i) the number of Maximum Delivery Shares
plus (ii)


 


11

















 


the aggregate number of shares expressly reserved for
any such other uses, in each case whether expressed as caps or as numbers of
shares reserved or otherwise, to exceed at any time the number of authorized
but unissued shares of Common Stock.


(b)           Notwithstanding any other provision
of this Confirmation, the Seller shall not be required to deliver Settlement
Shares, or shares of Common Stock or other securities comprising the aggregate
Alternative Termination Delivery Units, in excess of the number of Capped
Delivery Shares.


Section
6.05.  Notice of Certain Transactions.  If at any time during the Contract Period, the
Purchaser makes, or expects to be made, or has made, any public announcement
(as defined in Rule 165(f) under the Securities Act) of any merger,
acquisition, or similar transaction involving a recapitalization relating to
the Purchaser (other than any such transaction in which the consideration
consists solely of cash and there is no valuation period, or as to which the
completion of such transaction or the completion of the vote by target
shareholders has occurred), then the Purchaser shall (i) notify the Seller
prior to the opening of trading in the Common Stock on any day on which the
Purchaser makes, or expects to be made, or has made any such public
announcement, (ii) notify the Seller promptly following any such announcement
(or, if later, prior to the opening of trading in the Common Stock on the first
day of any Seller Termination Share Payment Period) that such announcement has
been made and (iii) promptly deliver to the Seller following the making of any
such announcement (or, if later, prior to the opening of trading in the Common
Stock on the first day of any Seller Termination Share Payment Period) a
certificate indicating (A) the Purchaser’s average daily Rule 10b-18 purchases
(as defined in Rule 10b-18) during the three full calendar months preceding the
date of such announcement and (B) the Purchaser’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 such announcement.  In addition, the Purchaser shall promptly
notify the Seller of the earlier to occur of the completion of such transaction
and the completion of the vote by target shareholders.  Accordingly, the Purchaser acknowledges that
its actions in relation to any such announcement or transaction must comply
with the standards set forth in Section 6.03.


Section
6.06.  No Dividends. Purchaser shall not declare any dividend with an
ex-dividend date scheduled to occur during the Contract Period.


ARTICLE 7

TERMINATION


Section
7.01.  Additional Termination Events.  (a) An Additional Termination Event shall occur in
respect of which the Purchaser is the sole Affected Party and this Transaction
is the sole Affected Transaction if, on any day, the Seller determines, in its
sole reasonable judgment, that it is unable to establish, re-establish or
maintain any hedging transactions reasonably necessary in the normal course of
such party’s business of hedging the price and market risk of entering into and
performing under this Transaction, due to market illiquidity, illegality or
lack of availability of hedging transaction market participants.


(b)           An Additional Termination Event shall
occur in respect of which the Purchaser is the sole Affected Party and this
Transaction is the sole Affected Transaction if (i) a Share De-listing Event
occurs; (ii) a Merger Event occurs; (iii) a Nationalization occurs, (iv) a
Distribution Termination Event occurs or (v) an event described in paragraph
III of Annex C occurs.


(c)           A “Share
De-listing Event” means that at any time during the Contract Period,
the Common Stock ceases to be listed, traded or publicly quoted on the Exchange
for any reason (other than a Merger Event, a “De-Listing”)
and is not immediately re-listed, traded or quoted as of the date of such
de-listing, on another U.S. national securities exchange or a U.S. automated
interdealer quotation system (a “Successor Exchange”);
provided that it shall not constitute an
Additional Termination Event if the Common Stock is immediately re-listed on a Successor
Exchange upon its De-Listing from the Exchange, and the Successor Exchange
shall be deemed to be the Exchange for all purposes.  In addition, in such event, the Seller shall
make any commercially reasonable adjustments to the terms of the Transaction
that the Seller determines appropriate in its reasonable good faith judgment to
preserve the


 


12

















fair value of the Transaction to the Seller, and the
Seller shall make such adjustments solely on the basis of the Fair
Value Variables.  The Seller shall explain the basis for
any such adjustments to the Purchaser.


(d)           A “Merger Event”
means the public announcement, including any public announcement as defined in
Rule 165(f) of the Securities Act (by the Purchaser or otherwise) at any time
during the Contract Period of any (i) planned recapitalization,
reclassification or change of the Common Stock that will, if consummated,
result in a transfer of more than 20% of the outstanding shares of Common
Stock, (ii) planned consolidation, amalgamation, merger or similar transaction
of the Purchaser with or into another entity (other than a consolidation,
amalgamation or merger in which the Purchaser will be the continuing entity and
which does not result in any such recapitalization, reclassification or change
of more than 20% of such shares outstanding), (iii) other takeover offer for
the shares of Common Stock that is aimed at resulting in a transfer of more
than 20% of such shares of Common Stock (other than such shares owned or
controlled by the offeror) or (iv) irrevocable commitment to any of the
foregoing.


(e)           A “Nationalization”
means that all or substantially all of the outstanding shares of Common Stock
or assets of the Purchaser are nationalized, expropriated or are otherwise
required to be transferred to any governmental agency, authority or entity.


(f)            A “Distribution
Termination Event” means a declaration by the Purchaser of any cash
dividend or distribution on shares of Common Stock (a “Cash Distribution”), that has a record date
during the Contract Period.


Section
7.02.  Consequences of Additional Termination
Events.  (a) In the event of the occurrence or effective
designation of an Early Termination Date under the Agreement, cash settlement,
as set forth in Section 7.02(b), shall apply unless (i) the Purchaser elects
(which election shall be binding), in lieu of payment of the amount payable in
respect of this Transaction pursuant to Section 7.02(b) below (the “Termination Amount”), to deliver or to receive Alternative
Termination Delivery Units pursuant to Section 7.03, and (ii) notifies the
Seller of such election by delivery of written notice to the Seller on the
Business Day immediately following the Purchaser’s receipt of a notice (as
required by Section 6(d) of the Agreement following the designation of an Early
Termination Date in respect of this Transaction or in respect of all
transactions under the Agreement) setting forth the amounts payable by the
Purchaser or by the Seller with respect to such Early Termination Date (the
date of such delivery, the “Default Notice Day”);
provided that the Purchaser shall not
have the right to elect the delivery or receipt of the Alternative Termination
Delivery Units pursuant to Section 7.03 if:


(i)            the representations and warranties
made by the Purchaser to the Seller in Section 5.01 are not true and correct as
of the date the Purchaser  makes such
election, as if made on such date, or


(ii)           in the event that the Termination
Amount is payable by the Purchaser to the Seller, (A) the Purchaser has taken
any action that would make unavailable (x) the exemption set forth in Section
4(2) of the Securities Act, for the sale of any Alternative Termination
Delivery Units by the Purchaser to the Seller or (y) an exemption from the
registration requirements of the Securities Act reasonably acceptable to the
Seller for resales of Alternative Termination Delivery Units by the Seller, and
(B) such Early Termination Date is in respect of an Event of Default which is
within Purchaser’s control (including, without limitation, failure to execute a
Private Placement Agreement or otherwise comply with the requirements
applicable to Purchaser set forth in Annex A hereto).


For
the avoidance of doubt, upon the Purchaser’s making an election to deliver
Alternative Termination Delivery Units pursuant to this Section 7.02(a), the
Purchaser shall be deemed to make the representations and warranties in Section
5.01 hereof as if made on the date of the Purchaser’s election.  Notwithstanding the foregoing, at any time
prior to the time the Seller (or any affiliate of the Seller) has contracted to
resell the property to be delivered upon alternative termination settlement,
the Purchaser may deliver in lieu of such property an amount in cash equal to
the Termination Amount in the manner set forth in Section 7.02(b) below.


(b)           If cash settlement applies in respect
of an Early Termination Date, Section 6 of the Agreement shall not apply.  The Calculation Agent shall instead determine
the Termination Amount based upon a calculation of the fair value of the
Transaction made in a good faith and commercially reasonable manner over a
commercially reasonable period of time following the occurrence of an Early
Termination Date, taking into account the Fair Value Variables, and shall
provide notice to the Purchaser of the Termination Amount payable by the
Purchaser or by the


 


13

















Seller.  Such
cash amount will be payable by the Purchaser or by the Seller, as applicable,
on the day which is two Business Days after the day on which the Seller’s
notice of such amount is effective.  For
the avoidance of doubt, in determining the fair value of the Transaction, the
Calculation Agent shall make such determination solely on the basis of the Fair
Value Variables.


Section
7.03.  Alternative Termination Settlement.  (a) Subject to Section 7.02(a), if the Termination
Amount shall be payable by the Purchaser to the Seller and the Purchaser elects
to deliver the Alternative Termination Delivery Units to the Seller, the
Purchaser shall, as soon as directed by the Seller after the Default Notice Day
(such date, the “Termination Settlement Date”),
deliver to the Seller a number of Alternative Termination Delivery Units equal
to the quotient of (A) the Termination Amount divided by
(B) the Termination Price.


(b)           Subject to Section 7.02(a), if the
Termination Amount shall be payable by the Seller to the Purchaser and the
Purchaser elects to receive the Alternative Termination Delivery Units from the
Seller, (i) the Seller shall, beginning on the first Trading Day following the
Default Notice Day and ending when the Seller shall have satisfied its
obligations under this clause (the “Seller Termination Share
Purchase Period”), purchase (subject to the provisions of Section
4.01 and Section 4.02 hereof) a number of Alternative Termination Delivery
Units equal to the quotient of (A) the Termination Amount divided by
(B) the Termination Price; and (ii) the Seller shall deliver such Alternative
Termination Delivery Units to the Purchaser on the settlement dates relating to
such purchases.


Section
7.04.  Notice of Default.  If an Event of Default occurs in respect of the
Purchaser, the Purchaser will, promptly upon becoming aware of it, notify the Seller
specifying the nature of such Event of Default.


ARTICLE 8

ADJUSTMENTS


Section
8.01.  Other Dilution Adjustments.  If (x) there shall occur any event involving the
Purchaser or the Common Stock which is a spin-off, a stock split, stock or
other dividend or distribution, reorganization, rights offering or
recapitalization or any other event having a dilutive or concentrative effect
on the theoretical value of the Common Stock, but excluding (a) any cash
dividend and (b) events such as an acquisition of assets or the stock of
another company where the Purchaser does not issue common stock and the
ordinary course grant or exercise of stock options or other securities or
rights under Purchaser’s employee benefit plans, or (y) as a result of the
definition of Trading Day (whether because of a suspension of transactions
pursuant to Section 4.02 or otherwise), any day that would otherwise be a
Trading Day during the Contract Period is not a Trading Day or on such Trading
Day, pursuant to Section 4.02, the Seller effects transactions with respect to
shares of Common Stock at a volume lower than originally anticipated with
respect to this Transaction, then in any such case, the Calculation Agent shall
make corresponding adjustments with respect to any variable relevant to the
terms of the Transaction, as the Calculation Agent determines appropriate in
its reasonable good faith judgment to preserve the fair value of the
Transaction to the Seller, and shall determine the effective date of such
adjustment.  For purposes of this Section
8.01, the fair value of the Transaction to the Seller shall be determined
solely on the basis of the Fair Value Variables.  Notwithstanding the foregoing, this Section 8.01 shall
not be construed as limiting any damages or other remedy at law or in equity that
may be payable or receivable as a result of a breach of this Confirmation,
including, without limitation, Section 6.06 hereof.


ARTICLE 9

MISCELLANEOUS


Section
9.01.  Successors and Assigns.  All covenants and agreements in this Confirmation made
by or on behalf of either of the parties hereto shall bind and inure to the
benefit of the respective successors and assigns of the parties hereto whether
so expressed or not.


 


14

















 


Section
9.02.  Assignment and Transfer.  Notwithstanding the Agreement, the Seller may assign
any of its rights or duties hereunder to any one or more of its affiliates
without the prior written consent of the Purchaser. Notwithstanding any other
provision in this Confirmation to the contrary requiring or allowing Seller to
purchase, sell, receive or deliver any shares of Common Stock or other
securities to or from the Purchaser, Seller may designate any of its affiliates
to purchase, sell, receive or deliver such shares of Common Stock or other
securities and otherwise to perform the Seller’s obligations in respect of this
Transaction and any such designee may assume such obligations.  The Seller may assign the right to receive
Settlement Shares to any third party who may legally receive Settlement Shares.
The Seller shall be discharged of its obligations to the Purchaser only to the
extent of any such performance.  For the
avoidance of doubt, Seller hereby acknowledges that notwithstanding any such
assignment or designation hereunder, to the extent any of Seller’s obligations
in respect of this Transaction are not completed by its assignee or designee,
Seller shall be obligated to continue to perform or to cause any other of its
assignees or designees to perform in respect of such obligations.


Section
9.03.  Calculation Agent.  Whenever the Calculation Agent is required to act or
to exercise judgment in any way with respect to this Transaction, it will do so
in good faith and in a commercially reasonable manner.  Upon request, the Calculation Agent shall
provide the Purchaser with a schedule setting forth in reasonable detail the
basis of each such determination or calculation.


Section
9.04.  Non-confidentiality.  The Seller and the Purchaser hereby acknowledge and
agree that, subject to Section 6.03, each is authorized to disclose every
aspect of this Confirmation and the transactions contemplated hereby to any and
all persons, without limitation of any kind, and there are no express or
implied agreements, arrangements or understandings to the contrary.


Section
9.05.  Unenforceability and Invalidity.  To the extent permitted by law, the unenforceability
or invalidity of any provision or provisions of this Confirmation shall not
render any other provision or provisions herein contained unenforceable or
invalid.


Section
9.06.  Securities Contract.  The parties hereto agree and acknowledge as of the
date hereof that (i) the Seller is a “financial institution” within the meaning
of Section 101(22) of Title 11 of the United States Code (the “Bankruptcy Code”) and (ii) this Confirmation is a “securities
contract,” as such term is defined in Section 741(7) of the Bankruptcy Code,
entitled to the protection of Sections 362(b)(6) and 555 of the Bankruptcy
Code.


Section
9.07.  No Collateral, Netting or Setoff.  Notwithstanding any provision of the Agreement, or any
other agreement between the parties, to the contrary, the obligations of the
Purchaser hereunder are not secured by any collateral.  Obligations under this Transaction shall not
be netted, recouped or set off (including pursuant to Section 6 of the
Agreement) against any other obligations of the parties, whether arising under
the Agreement, this Confirmation, under any other agreement between the parties
hereto, by operation of law or otherwise, and no other obligations of the
parties shall be netted, recouped or set off (including pursuant to Section 6
of the Agreement) against obligations under this Transaction, whether arising
under the Agreement, this Confirmation, under any other agreement between the
parties hereto, by operation of law or otherwise, and each party hereby waives
any such right of setoff, netting or recoupment.


Section
9.08.  Equity Rights.  The Seller 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 holders of Common
Stock in the event of the Purchaser’s bankruptcy.


Section
9.09.  Notices. 
Unless
otherwise specified herein, any notice, the delivery of which is expressly
provided for in this Confirmation, may be made by telephone, to be confirmed in
writing to the address below.  Changes to
the information below must be made in writing.


(a)   If to the Purchaser:


Mirant Corporation


1155
Perimeter Center West, Suite 100


Atlanta,
Georgia 30338


 


15

















 


Attention:  J. William Holden III

Title:  Senior Vice President &
Treasurer

Telephone No:  678-579-7728

Facsimile No:   678-579-7734


(b)   If to the Seller:


JPMorgan Chase Bank,
National Association

c/o J.P. Morgan Securities Inc.

277 Park Avenue

New York, NY  10172

Attention:  Eric Stefanik

Title:  Operations Analyst

EDG Corporate Marketing

Telephone No:  (212) 622-5814

Facsimile No:   (212) 622-8534


 


16

















 


Please
confirm that the foregoing correctly sets forth the terms of our agreement by
executing the copy of this Confirmation enclosed for that purpose and returning
it to us.




	
  Yours sincerely,

  
	
   

  
	
   

  
	
  J.P. MORGAN SECURITIES
  INC., as agent for JPMorgan Chase Bank, National Association, London Branch,
  as Seller and Calculation Agent

  






 


	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /S/ Sudheer Tegulapalle

  
	
   

  	
   

  	
  Name: Sudheer Tegulapalle

  
	
   

  	
   

  	
  Title: Executive Director

  
	
   

  	
   

  	
   

  



Confirmed as of
the date first


above written:


	
  MIRANT CORPORATION



  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /S/ J. William Holden III

  	
   

  
	
   

  	
  Name:J. William Holden III

  	
   

  
	
   

  	
  Title: Senior Vice President and Treasurer

  	
   

  
	
   

  	
   

  	
   

  



 


 


 


 


 


 


 


 


 


 


JPMorgan
Chase Bank, National Association


Organised
under the laws of the United States as a National Banking Association.


Main
Office 1111 Polaris Parkway, Columbus, Ohio 43271


Registered
as a branch in England & Wales branch No. BR000746.


Registered
Branch Office 125 London Wall, London EC2Y 5AJ


Authorised
and regulated by the Financial Services Authority


 
















	
   

  	
  

  



 


 


ANNEX A


PRIVATE PLACEMENT PROCEDURES


I.              Introduction


Mirant
Corporation, a Delaware corporation (the “Purchaser”) and
J.P. Morgan Securities Inc., as agent for JPMorgan Chase Bank, National
Association, London Branch (the “Seller”) have
agreed to these procedures (the “Private Placement
Procedures”) in connection with entering into the Confirmation (the “Confirmation”) dated as of November 9, 2007 between JPMorgan
and the Purchaser relating to the sale by JPMorgan to the Purchaser of common
stock, par value $0.01 per share, or security entitlements in respect thereof
(the “Common Stock”) of the Purchaser.  These Private Placement Procedures
supplement, form part of, and are subject to the Confirmation and all terms
used and not otherwise defined herein shall have the meanings assigned to them
in the Confirmation.


II.            Procedures


If
the Purchaser elects to deliver Private Placement Shares pursuant to Section
3.01(b) of the Confirmation or elects to deliver Alternative Termination
Delivery Units pursuant to Section 7.02(a) of the Confirmation, the Purchaser
shall effect such delivery in compliance with the private placement procedures
provided herein.


(a)           The Purchaser shall afford the
Seller, and any potential buyers of the Private Placement Shares (or, in the
case of alternative termination settlement, Alternative Termination Delivery
Units) (collectively, the “Private  Securities”) designated by the Seller a reasonable
opportunity to conduct a due diligence investigation with respect to the
Purchaser customary in scope for private offerings of such type of securities
(including, without limitation, the availability of senior management to
respond to questions regarding the business and financial condition of the
Purchaser and 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 the Seller (or any such
potential buyer) shall be satisfied in all material respects with such
opportunity and with the resolution of any disclosure issues arising from such
due diligence investigation of the Purchaser.


(b)           Prior to or contemporaneously with
the determination of the Private Placement Price (as described below), the
Purchaser shall enter into an agreement (a “Private
Placement Agreement”) with the Seller (or any affiliate of the
Seller designated by the Seller) providing for the purchase and resale by the
Seller (or such affiliate) in a private placement (or other transaction exempt
from registration under the Securities Act) of the Private Securities, which
agreement shall be on commercially reasonable terms and in form and substance
reasonably satisfactory to the Seller (or such affiliate) and (without
limitation of the foregoing) shall:


(i)            contain
customary conditions, and customary undertakings, representations and
warranties (to the Seller or such affiliate, and if requested by the Seller or
such affiliate, to potential purchasers of the Private Securities);


(ii)           contain
indemnification and contribution provisions in connection with the potential
liability of the Seller and its affiliates relating to the resale by the Seller
(or such affiliate) of the Private Securities;


(iii)          provide
for all reasonable steps within the Purchaser’s control to be taken to provide
for the delivery of related certificates and representations, warranties and
agreements of the Purchaser, including those necessary or advisable to
establish and maintain the availability of an exemption from the registration
requirements of the Securities Act for the Seller and resales of the Private
Securities by the Seller (or such affiliate); and


 


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(iv)          provide
for all reasonable steps within the Purchaser’s control to be taken to provide
for the delivery to the Seller (or such affiliate) of customary opinions
(including, without limitation, opinions relating to the due authorization,
valid issuance and fully paid and non-assessable nature of the Private
Securities, the availability of an exemption from the Securities Act for the
Seller and resales of the Private Securities by the Seller (or such affiliate),
and the lack of material misstatements and omissions in the Purchaser’s filings
under the Exchange Act).


(c)           The Seller shall determine the
Private Placement Price (or, in the case of alternative termination settlement,
the Termination Price) in its judgment by commercially reasonable means, which
may include (without limitation):


(i)            basing
such price on indicative bids from investors;


(ii)           taking
into account any factors that are customary in pricing private sales for
similarly situated issuers or securities, including, without limitation, a
reasonable placement fee or spread to be retained by the Seller (or such
affiliate); and


(iii)          providing
for the payment by the Purchaser of all reasonable fees and expenses in
connection with such sale and resale, including all fees and expenses of
counsel for the Seller or such affiliate.


(d)           The Seller shall notify the Purchaser
of the number of Private Securities required to be delivered by the Purchaser
and the Private Placement Price (or, in the case of alternative termination
settlement, the Termination Price) by 6:00 p.m. on the day such price is
determined.


(e)           The Purchaser agrees not to 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
Private Securities by the Purchaser to the Seller or (ii) an exemption from the
registration requirements of the Securities Act reasonably acceptable to the
Seller for resales of Private Securities by the Seller.


(f)            The Purchaser expressly agrees and
acknowledges that the public disclosure of all material information relating to
the Purchaser is within the Purchaser’s control and that the Purchaser shall
promptly so disclose all such material information during the period from the
Valuation Completion Date to and including the Settlement Date.


The Purchaser agrees to use its best efforts to make
any filings required to be made by it with the SEC, any securities exchange or
any other regulatory body with respect to the Transaction contemplated hereby
and the issuance of the Private Securities.


 


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ANNEX B


REGISTRATION PROCEDURES


I.              Introduction


Mirant
Corporation, a Delaware corporation (the “Purchaser”) and
J.P. Morgan Securities Inc., as agent for JPMorgan Chase Bank, National
Association, London Branch (the “Seller”) have
agreed to these procedures (the “Registration Procedures”)
in connection with entering into the Confirmation (the “Confirmation”)
dated as of November 9, 2007 between JPMorgan and the Purchaser relating to the
sale by JPMorgan to the Purchaser of common stock, par value $0.01 per share,
or security entitlements in respect thereof (the “Common Stock”)
of the Counterparty.  These Registration
Procedures supplement, form part of, and are subject to the Confirmation and
all terms used and not otherwise defined herein shall have the meanings
assigned to them in the Confirmation.


II.            Procedures


If
the Purchaser elects to deliver Registered Shares pursuant to Section 3.01(b)
of the Confirmation, the Purchaser shall effect such delivery in compliance
with the registration procedures provided herein.


(a)           The Purchaser shall take all actions
within its control to make available to the Seller and its affiliates an
effective primary registration statement under the Securities Act and one or
more prospectuses as necessary or advisable to allow the Seller and its
affiliates to comply with the applicable prospectus delivery requirements (the “Prospectus”) for the sale by Seller or its affiliates of the
Registered Shares to be delivered by the Purchaser pursuant to the Confirmation
(the “Registration Statement”), such Registration Statement
to be effective and Prospectus to be current until all such sales by the Seller
(or its affiliates) have been settled. 
The Purchaser shall take all actions reasonably requested by the Seller
to facilitate the disposition of any Registered Shares to be sold pursuant to
such Registration Statement.


(b)           The Purchaser shall use commercially
reasonable efforts to prevent the issuance of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any Prospectus and, if any such order is issued, to
obtain the lifting thereof as soon thereafter as is reasonably possible.  If the Registration Statement, the Prospectus
or any document incorporated therein by reference contains a misstatement of a
material fact or omits to state a material fact required to be stated therein
or necessary to make any statement therein not misleading, the Purchaser shall
as promptly as reasonably practicable file any required document and prepare
and furnish to the Seller a reasonable number of copies of such supplement or
amendment thereto as may be necessary so that the Prospectus, as thereafter
delivered to the purchasers in connection with sales of Registered Shares thereunder,
will not contain any misstatement of a material fact or omit to state a
material fact required to be stated therein or necessary to make any statement
therein not misleading.


(c)           The Purchaser shall afford the Seller
(and its agents and affiliates) a reasonable opportunity to conduct a due
diligence investigation with respect to the Purchaser customary in scope for
registered offerings of such type of securities (including, without limitation,
the availability of senior management and external advisors to respond to
questions regarding the business and financial condition of the Purchaser and
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 such opportunity and the resolution of any disclosure
issues arising from such due diligence investigation of the Purchaser shall be
satisfactory to Seller in all material respects.  The Purchaser shall reimburse the Seller for
all reasonable out-of-pocket expenses it incurs in connection with such
diligence and otherwise in connection with the preparation of the Registration
Statement and Prospectus, including, without limitation, the reasonable fees
and expenses of outside counsel to the Seller incurred in connection therewith.


 


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(d)           The Purchaser shall enter into an
agreement (a “Registration Agreement”) with the
Seller (or any affiliate of the Seller designated by the Seller) providing for
the registration of the Registered Shares, which agreement shall be on
commercially reasonable terms and in form and substance reasonably satisfactory
to the Seller (or such affiliate) and (without limitation of the foregoing)
shall:


(i)            contain
customary conditions, and customary undertakings, representations and
warranties (to the Seller or such affiliate);


(ii)           contain
indemnification and contribution provisions in connection with the potential
liability of the Seller and its affiliates relating to the sale by the Seller
(or such affiliate) of the Registered Shares;


(iii)          provide
for the delivery of related certificates and representations, warranties and
agreements of the Purchaser;


(iv)          provide
for the delivery of accountants’ “comfort letters” to the Seller in form and
substance satisfactory to the Seller, containing statements and information of
the type customarily included in such letters to “underwriters” with respect to
the financial statements and certain financial information contained, or incorporated
by reference, in the Registration Statement and the Prospectus; and


(v)           provide
for the delivery to the Seller (or such affiliate) of customary opinions,
including, without limitation, opinions relating to the due authorization,
valid issuance and fully paid and non-assessable nature of the Registered
Shares and the lack of material misstatements and omissions in the Registration
Statement (including any documents incorporated by reference therein).


(e)           The Seller shall notify the Purchaser
of the numbers of Registered Shares to be delivered by the Purchaser on the
Settlement Dates, as necessary in light of the Seller’s unwinding of its hedge
positions in connection with the Transaction and sales of Registered Shares in
accordance with these Registration Procedures, and the Purchaser shall deliver
such Shares to the Seller on such Settlement Dates in accordance with the
Seller’s customary procedures.  The
parties understand and acknowledge that (i) the Seller or its affiliates expect
to make contemporaneous or nearly contemporaneous (A) purchases of Common Stock
to unwind its hedge and (B) sales of Registered Shares in accordance with these
Registration Procedures, (ii) the Seller or its affiliates intend to make such
sales of Registered Shares in a manner that is not a distribution for purposes
of Regulation M, and (iii) accordingly, the length of the period during which
the Seller or its affiliates make such purchases and sales will depend in part
on prevailing trading volumes for the Common Stock.


(f)            In the event that (i) the Purchaser
fails to comply with the requirements set forth in this Annex B, (ii) the
Registration Statement is not effective on or prior to the date that is 45 days
after the Valuation Completion Date, or fails to remain effective until all
Registered Shares have been sold hereunder, (ii) the opportunity to conduct a
due diligence investigation with respect to the Purchaser and the resolution of
any issues arising therefrom is not satisfactory to Seller and its affiliates
in all material respects, or does not continue to be satisfactory to the Seller
and its affiliates in all material respects until all Registered Shares have
been sold hereunder, (iv) the Seller or its affiliates are not able to make
sales of Registered Shares in a manner that permits the contemporaneous or
nearly contemporaneous purchase by the Seller or its affiliates of Common Stock
in accordance with Regulation M or (v) the Registration Procedures otherwise
become unavailable for the sale by the Seller and its affiliates of the
Registered Shares delivered by the Purchaser hereunder prior to the completion
of the sale thereof, then in any such event, the provisions of Section 3.01(d)
of the Confirmation providing for cash settlement with respect to any unsold Registered
Shares shall apply, appropriately modified to take into account any Registered
Shares theretofore delivered and sold pursuant to these Registration
Procedures.


 


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ANNEX C


COMMUNICATIONS PROCEDURES


I.              Introduction


Mirant
Corporation, a Delaware corporation (“Counterparty”)
and J.P. Morgan Securities Inc., as agent for JPMorgan Chase Bank, National
Association, London Branch (“JPMorgan”) have
adopted these communications procedures (the “Communications
Procedures”) in connection with
entering into the Confirmation (the “Confirmation”)
dated as of November 9, 2007 between JPMorgan and Counterparty relating to the
sale by JPMorgan to Counterparty of common stock, par value $0.01 per share, or
security entitlements in respect thereof (the “Common
Stock”) of the Counterparty.  These Communications Procedures supplement,
form part of, and are subject to the Confirmation.


II.            Communications Rules


1.             From the date hereof until the end
of the Contract Period, Counterparty and its Employees and Designees shall not
engage in any Program-Related Communication with, or disclose any Material
Non-Public Information to, any EDG Trading Personnel.  Except as set forth in the preceding
sentence, the Confirmation shall not limit Counterparty and its Employees and
Designees in their communication with Affiliates and Employees of JPMorgan,
including without limitation Employees who are EDG Permitted Contacts.


III.           Termination


If,
in the sole judgment of any EDG Trading Personnel or any affiliate or Employee
of JPMorgan participating in any Communication with Counterparty or any
Employee or Designee of Counterparty, such Communication would not be permitted
by these Communications Procedures, such EDG Trading Personnel or affiliate or
Employee of JPMorgan shall immediately terminate such Communication.  In such case, or if such EDG Trading
Personnel or affiliate or Employee of JPMorgan determines following completion
of any Communication with Counterparty or any Employee or Designee of
Counterparty that such Communication was not permitted by these Communications
Procedures, such EDG Trading Personnel or such affiliate or Employee of
JPMorgan shall promptly consult with his or her supervisors and with counsel
for JPMorgan regarding such Communication. 
If, in the reasonable judgment of JPMorgan’s counsel following such
consultation, there is more than an insignificant risk that such Communication
could materially jeopardize the availability of the affirmative defenses
provided in Rule 10b5-1 under the 1934 Act with respect to any ongoing or
contemplated activities of JPMorgan or its affiliates in respect of the
Confirmation, it shall be an Additional Termination Event with respect to the Confirmation.


IV.           Definitions


Capitalized
terms used and not otherwise defined herein shall have the meanings ascribed to
them in the Confirmation.  As used
herein, the following words and phrases shall have the following meanings:


“Communication” means any contact or communication (whether
written, electronic, oral or otherwise) between Counterparty or any of its
Employees or Designees, on the one hand, and JPMorgan or any of its affiliates
or Employees, on the other hand.


“Designee” means a person designated, in writing or orally,
by Counterparty to communicate with JPMorgan on behalf of Counterparty.


 


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“EDG Permitted Contact” means any of Mr. David Aidelson, Ms.
Bernadette Barnard, Mr. Gregory Batista, Mr. Elliot Chalom, Mr. Santosh Nabar,
Mr. James Rothschild and Mr. Sudheer Tegulapalle or any of their designees; provided that JPMorgan may amend the list of EDG Permitted
Contacts by delivering a revised list of EDG Permitted Contacts to
Counterparty.


“EDG Trading Personnel” means Reuben Jacob, Gaurav Arora and
any other Employee of the public side of the Equity Derivatives Group or the
Special Equities Group of J.P. Morgan Chase & Co.; provided
that JPMorgan may amend the list of EDG Trading Personnel by delivering a
revised list of EDG Trading Personnel to Counterparty; and provided
further that, for the avoidance of doubt, the persons listed as
EDG/SEG Permitted Contacts are not EDG/SEG Trading Personnel.


“Employee” means, with respect to any entity, any owner,
principal, officer, director, employee or other agent or representative of such
entity, and any affiliate of any of such owner, principal, officer, director,
employee, agent or representative.


“Material Non-Public Information” means information relating
to the Counterparty or the Common Stock that (a) has not been widely
disseminated by wire service, in one or more newspapers of general circulation,
by communication from the Counterparty to its shareholders or in a press
release, or contained in a public filing made by the Counterparty with the
Securities and Exchange Commission and (b) a reasonable investor might consider
to be of importance in making an investment decision to buy, sell or hold
shares of Common Stock.  For the
avoidance of doubt and solely by way of illustration, information should be
presumed “material” if it relates to such matters as dividend increases or
decreases, earnings estimates, changes in previously released earnings
estimates, significant expansion or curtailment of operations, a significant
increase or decline of orders, significant merger or acquisition proposals or
agreements, significant new products or discoveries, extraordinary borrowing,
major litigation, liquidity problems, extraordinary management developments, purchase
or sale of substantial assets and similar matters.


“Program-Related Communication” means any Communication the
subject matter of which relates to the Confirmation or any Transaction under
the Confirmation or any activities of JPMorgan (or any of its affiliates) in
respect of the Confirmation or any Transaction under the Confirmation.


 


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ANNEX D


 


 


[OMITTED]


 


 


 


 


 


 


 


 


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EXHIBIT A


[Letterhead of Purchaser]


JPMorgan Chase
Bank, National Association


c/o J.P. Morgan
Securities Inc.


277 Park Avenue


11th Floor


New York, New York 10172


Re:          Accelerated
Purchase of Equity Securities


Ladies and Gentlemen:


In
connection with our entry into the Confirmation dated as of November 9, 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 (all defined in Rule 10b-18 under the Securities Exchange
Act of 1934) pursuant to the once-a-week block exception set forth in Rule
10b-18(b)(4) during the four full calendar weeks immediately preceding the
first day of the [Valuation Period] [Cash Settlement Purchase Period] [Seller
Termination Share Purchase Period] (as defined in the Confirmation) and the
week during which the first day of the [Valuation Period] [Cash Settlement
Purchase Period] [Seller Termination Share Purchase Period] occurs.


	
  Number
  of Shares:

  	
   

  	
   

  



 


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


	
  Very truly yours,

  

  

  MIRANT CORPORATION



  
	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


 


 


Exh-A-1