Exhibit
10.1


Opening Transaction


	
  To:

  	
   

  	
  Micron Technology, Inc.

  8000 S. Federal Bay

  Boise, Idaho 83716-9632

  
	
   

  	
   

  	
   

  
	
  A/C:

  	
   

  	
  033MSAAL4

  
	
   

  	
   

  	
   

  
	
  From:

  	
   

  	
  Morgan Stanley & Co. International plc

  
	
   

  	
   

  	
   

  
	
  Re:

  	
   

  	
  Issuer Capped Share Call Option Transaction

  
	
   

  	
   

  	
   

  
	
  Ref. No:

  	
   

  	
  CEODL6

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
  May 17, 2007

  



 


Dear Sir(s):


The
purpose of this communication (this “Confirmation”)
is to set forth the terms and conditions of the above-referenced transaction
entered into on the Trade Date specified below (the “Transaction”)
between Morgan Stanley & Co. International plc (“Dealer”)
and Micron Technology, Inc.  (“Counterparty”). 
Dealer is acting as principal and Morgan Stanley Bank (“Agent”),
its affiliate, is acting as agent for Dealer and Counterparty for the Transaction
under this Confirmation.  This
communication constitutes a “Confirmation” as referred to in the
ISDA Master Agreement specified below. 
This Confirmation is a confirmation for purposes of Rule 10b-10
promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”). Dealer is not a member of the
Securities Investor Protection Corporation.


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.


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


This
Confirmation evidences a complete and binding agreement between Dealer 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 (Multicurrency — Cross Border) as if Dealer and Counterparty
had executed an agreement in such form on the date hereof (but without any
Schedule except for (i) New York law (without regard to the conflicts of law
principles) as the governing law and (ii) US Dollars (“USD”)
as the Termination Currency.  The parties
hereby agree that no Transactions other than the Transaction to which this
Confirmation relates shall be governed by 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 the Definitions or the Agreement,
as the case may be, this Confirmation shall govern.













2.     This Transaction constitutes
a Share Option Transaction for purposes of the Equity Definitions.  The terms of the particular Transaction to
which this Confirmation relates are as follows:


	
  General Terms:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Trade Date:

  	
   

  	
  May 17, 2007

  
	
   

  	
   

  	
   

  
	
  Components:

  	
   

  	
  The Transaction will be divided into individual
  Components, each with the terms set forth in this Confirmation, and, in
  particular, with the Number of Options and Expiration Date set forth in Annex
  A to this Confirmation. The exercise, valuation and settlement of the
  Transaction will be effected separately for each Component as if each
  Component were a separate Transaction under the Agreement.

  
	
   

  	
   

  	
   

  
	
  Option Style:

  	
   

  	
  European

  
	
   

  	
   

  	
   

  
	
  Option Type:

  	
   

  	
  Call

  
	
   

  	
   

  	
   

  
	
  Seller:

  	
   

  	
  Dealer

  
	
   

  	
   

  	
   

  
	
  Buyer:

  	
   

  	
  Counterparty

  
	
   

  	
   

  	
   

  
	
  Shares:

  	
   

  	
  Common Stock (par value $0.10 per Share) of
  Counterparty (Ticker: “MU”)

  
	
   

  	
   

  	
   

  
	
  Number of
  Options:

  	
   

  	
  For each Component, as provided in Annex A to this
  Confirmation; provided that if Morgan
  Stanley & Co. Incorporated (“MS&Co.”), as representative
  of the Underwriters named in the Underwriting Agreement dated May 17,
  2007 between Counterparty and MS&Co. (the “Underwriting Agreement”),
  exercises the option to purchase additional 1.875% Convertible Senior Notes
  due June 1, 2014 (“Additional Convertible Notes”) pursuant to
  Section 2 of the Underwriting Agreement, the Number of Options for each
  Component shall be automatically increased, effective upon payment by
  Counterparty of the Additional Premium on the Additional Premium Payment
  Date, by a number of Options equal to the product of (x) the Number of
  Options for such Component as set forth in Annex A to this Confirmation and
  (y) a fraction, the numerator of which is the number of Additional
  Convertible Notes in denominations of USD1,000 principal amount issued
  pursuant to such exercise and the denominator of which is the number of
  Convertible Notes in denominations of USD1,000 principal amount issued prior
  to such exercise, subject to rounding as deemed appropriate by the
  Calculation Agent, and Calculation Agent will promptly provide Counterparty
  and Dealer a schedule setting forth the increased Number of Options for all
  Components.

  
	
   

  	
   

  	
   

  
	
  Option
  Entitlement:

  	
   

  	
  One Share per Option

  
	
   

  	
   

  	
   

  
	
  Strike Price:

  	
   

  	
  USD 14.2312.

  
	
   

  	
   

  	
   

  
	
  Cap Price:

  	
   

  	
  USD 17.2500.

  
	
   

  	
   

  	
   

  
	
  Premium:

  	
   

  	
  The premium for each Component shall be as provided
  in Annex A to this Confirmation; provided that
  if the Number of Options is increased pursuant to the proviso to the
  definition of “Number of 

  



 



 2
 









 


	
  

  	
   

  	
  Options” above, Counterparty shall pay on the
  Additional Premium Payment Date an additional Premium (the “Additional
  Premium”) equal to the product of the number of Options by which the
  aggregate Number of Options for such Components is so increased and USD
  1.0573818. Dealer and Counterparty hereby agree that, notwithstanding
  anything to the contrary herein or in the Agreement, following the payment of
  the Premium (including the Additional Premium, if any), in the event that
  (a) an Early Termination Date (whether as a result of an Event of
  Default or a Termination Event) occurs or is designated with respect to any
  Transaction and, as a result, Counterparty owes to Dealer the amount
  calculated under Section 6(e) of the Agreement (calculated as if the
  Transactions were terminated on such Early Termination Date were the sole
  Transactions under the Agreement) or (b) Counterparty owes to Dealer,
  pursuant to Section 12.7 or Section 12.9 or the Equity Definitions,
  an amount calculated under Section 12.8 of the Equity Definitions, such
  amount shall be deemed to be zero.

  
	
   

  	
   

  	
   

  
	
  Premium Payment
  Date:

  	
   

  	
  The Effective Date

  
	
   

  	
   

  	
   

  
	
  Effective Date:

  	
   

  	
  May 23, 2007 or such other date as agreed by
  the parties.

  
	
   

  	
   

  	
   

  
	
  Additional
  Premium Payment Date:

  	
   

  	
  The closing date for the purchase and sale of the
  Additional Convertible Notes.

  
	
   

  	
   

  	
   

  
	
  Exchange:

  	
   

  	
  New York Stock Exchange

  
	
   

  	
   

  	
   

  
	
  Related
  Exchange:

  	
   

  	
  All Exchanges located in the United States on which
  the equity securities or equity-linked securities of Counterparty are traded.

  
	
   

  	
   

  	
   

  
	
  Procedures for
  Exercise:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Expiration Time:

  	
   

  	
  Valuation Time

  
	
   

  	
   

  	
   

  
	
  Expiration Date:

  	
   

  	
  As provided in Annex A to this Confirmation (or, if
  such date is not a Scheduled Trading Day, the next following Scheduled
  Trading Day that is not already an Expiration Date for another Component); provided that,
  notwithstanding anything to the contrary in the Equity Definitions, if that
  date is a Disrupted Day, the Calculation Agent may determine that the
  Expiration Date for such Component is a Disrupted Day in whole or in part, in
  which case the Calculation Agent shall, in its reasonable discretion,
  determine the number of Options for which such day shall be the Expiration
  Date and (i) allocate the remaining Options for such Expiration Date to
  one or more of the remaining Expiration Dates, (ii) designate the first
  succeeding Scheduled Trading Day that is not a Disrupted Day and is not or is
  not deemed to be an Expiration Date in respect of any other Component of the
  Transaction hereunder as the Expiration Date for such remaining Options, or
  (iii) a combination thereof; provided further that if the Expiration Date for a
  Component (including any portion of a Component whose Expiration Date was
  postponed as a result of clause (ii) or (iii) above) has not occurred as
  of the Final Disruption Date, (a) such Final Disruption Date shall be
  deemed to be the Expiration Date and Valuation Date for such Component, and
  (b) the Calculation Agent shall determine the VWAP Price for

  



 



 3
 









 


	
  

  	
   

  	
  such Component on the
  basis of its good faith estimate of the trading value for the relevant
  Shares. Section 6.6 of the Equity Definitions shall not apply to
  any Valuation Date occurring on an Expiration Date.

  
	
   

  	
   

  	
   

  
	
  Final Disruption
  Date:

  	
   

  	
  February 1, 2012.

  
	
   

  	
   

  	
   

  
	
  Market
  Disruption Event:

  	
   

  	
  Section 6.3(a) of the Equity Definitions is
  hereby amended by replacing clause (ii) thereof in its entirety with the
  following: “(ii) an Exchange Disruption, or” and inserting immediately
  following clause (iii) thereof the following: “; in each case that the
  Calculation Agent determines is material.”

  
	
   

  	
   

  	
   

  
	
  Exchange
  Business Day; Disrupted Day:

  	
   

  	
  Sections 1.29 and 6.4 of the Equity Definitions
  are hereby amended by adding “, unless the Calculation Agent reasonably
  determines that any failure of such Exchange or Related Exchange to open does
  not have a material effect on the trading market for the Shares” following
  the words “regular trading sessions” in the third line thereof and the words
  “regular trading session” in the second line thereof, respectively.

  
	
   

  	
   

  	
   

  
	
  Automatic
  Exercise:

  	
   

  	
  Applicable; and means that the Number of Options for
  the relevant Component will be deemed to be automatically exercised at the
  Expiration Time on the Expiration Date for such Component if at such time
  such Component is In-the-Money, as determined by the Calculation Agent,
  unless Buyer notifies Seller (by telephone or in writing) prior to the
  Expiration Time on such Expiration Date that it does not wish Automatic
  Exercise to occur with respect to such Component, in which case Automatic
  Exercise will not apply with respect to such Component. “In-the-Money”
  means, in respect of any Component, that the VWAP Price on the Expiration
  Date for such Component is greater than the Strike Price for such Component.

  
	
   

  	
   

  	
   

  
	
  Seller’s
  Telephone Number and Telex and/or Facsimile Number and Contact Details for
  purpose of Giving Notice:

  	
   

  	
  To be provided by Dealer.

  
	
   

  	
   

  	
   

  
	
  Settlement
  Terms:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Settlement
  Method Election:

  	
   

  	
  Applicable; provided
  that (a) Section 7.1 of the Equity Definitions is hereby amended by
  replacing the term “Physical Settlement” with the term “Net Share
  Settlement”, (b) Counterparty must make a single irrevocable election
  for all Components and (c) such Settlement Method Election would be
  effective only if Counterparty represents and warrants to Dealer in writing
  on the date of such Settlement Method Election that none of Counterparty and
  its officers and directors is aware of any material nonpublic information
  regarding Counterparty or the Shares as of such date.

  
	
   

  	
   

  	
   

  
	
  Electing Party:

  	
   

  	
  Counterparty

  
	
   

  	
   

  	
   

  
	
  Settlement
  Method Election Date:

  	
   

  	
  The fifth Scheduled Trading Day prior to the
  scheduled Expiration Date for the first Component.

  
	
   

  	
   

  	
   

  
	
  Default
  Settlement Method:

  	
   

  	
  Net Share Settlement

  



 



 4
 









 


	
  Settlement Currency:

  	
   

  	
  USD

  
	
   

  	
   

  	
   

  
	
  VWAP Price:

  	
   

  	
  For any Expiration Date or other Exchange Business
  Day, as displayed on Bloomberg Page “MU.N <Equity> AQR” (or any
  successor thereto) for the Counterparty with respect to the period between
  9:30 a.m. to 4:00 p.m. (New York City time) on such day, as determined by Calculation
  Agent. If no price is available, or there is a Market Disruption Event on
  such Expiration Date or other Exchange Business Day, the Calculation Agent
  shall determine the VWAP Price in a commercially reasonable manner.

  
	
   

  	
   

  	
   

  
	
  Net
  Share Settlement:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Settlement Date:

  	
   

  	
  The Settlement Date shall be the third Scheduled
  Trading Day after the Expiration Date for the Component (or, in respect of
  all or part of its obligation to deliver the Number of Shares to be
  Delivered, such other earlier date or dates Dealer shall determine in its
  sole discretion).

  
	
   

  	
   

  	
   

  
	
  Net Share
  Settlement:

  	
   

  	
  If Net Share Settlement applies, on the Settlement
  Date for each Component, Dealer shall deliver to Counterparty a number of
  Shares equal to the sum of the Number of Shares to be Delivered for each
  Component to the account specified by Counterparty and cash in lieu of any
  fractional shares for each Component valued at the VWAP Price on the
  Expiration Date for such Component.

  
	
   

  	
   

  	
   

  
	
  Number of Shares
  to be Delivered:

  	
   

  	
  For any Component, subject to the last sentence of
  Section 9.5 of the Equity Definitions:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (i)  if the VWAP Price on the Expiration
  Date for such Component exceeds the Strike Price for such Component but is
  less than the Cap Price for such Component, a number of Shares equal to (i)
  the product of (A) the excess of such VWAP Price over such Strike Price, (B)
  the Number of Options for such Component and (C) the Option Entitlement, divided by (ii) such VWAP Price;

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (ii)  if the VWAP Price on the Expiration
  Date for such Component equals or exceeds the Cap Price for such Component, a
  number of Shares equal to (i) the product of (A) the excess of such Cap Price
  over the Strike Price for such Component, (B) the Number of Options for such
  Component and (C) the Option Entitlement, divided by
  (ii) such VWAP Price; or

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (iii)  if the VWAP Price on the Expiration
  Date for such Component is less than or equal to the Strike Price for such
  Component, a number of Shares equal to zero.

  
	
   

  	
   

  	
   

  
	
  Other Applicable
  Provisions:

  	
   

  	
  The provisions of Sections 9.1(c), 9.8, 9.9, 9.10,
  9.11 and 9.12 of the Equity Definitions will be applicable, as if Physical
  Settlement applied to the Transaction; provided
  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 as a result of the fact that Counterparty is the
  issuer of any Shares.

  



 



 5
 









 


	
  Cash Settlement:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Cash Settlement
  Payment Date:

  	
   

  	
  The Cash Settlement Payment Date shall be the third
  Scheduled Trading Day after the Expiration Date for each Component.

  
	
   

  	
   

  	
   

  
	
  Cash Settlement:

  	
   

  	
  If Cash Settlement applies, on the relevant Cash
  Settlement Payment Date for such Component, Dealer shall pay to Counterparty
  an amount equal to the sum of the Option Cash Settlement Amount for each
  Component to the account specified by Counterparty.

  
	
   

  	
   

  	
   

  
	
  Strike Price
  Differential:

  	
   

  	
  For any Component:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (i)  if the VWAP Price on the Expiration
  Date for such Component exceeds the Strike Price for such Component but is
  less than the Cap Price for such Component, an amount equal to the excess of
  such VWAP Price over such Strike Price.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (ii)  if the VWAP Price on the Expiration
  Date for such Component equals or exceeds the Cap Price for such Component,
  an amount equal to the excess of such Cap Price over the Strike Price for
  such Component; or

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (iii)  if the VWAP Price on the Expiration
  Date for such Component is less than or equal to the Strike Price for such
  Component, zero.

  
	
   

  	
   

  	
   

  
	
  Share
  Adjustments:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Method of
  Adjustment:

  	
   

  	
  Calculation Agent Adjustment; provided that under
  Section 11.2(e)(v) of the definition of Potential Adjustment Event the word
  “repurchase” shall be replaced with the word “tender offer”.

  
	
   

  	
   

  	
   

  
	
  Extraordinary
  Events:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  New Shares:

  	
   

  	
  In the definition of “New Shares” in Section 12.1(i)
  of the Equity Definitions, the text in subsection (i) shall be deleted in its
  entirety and replaced with: “publicly quoted, traded or listed on any of the
  New York Stock Exchange, the NASDAQ Global Select Market or the NASDAQ Global
  Market (or their respective successors)”.

  
	
   

  	
   

  	
   

  
	
  Consequences of
  Merger Events:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (a)           Share-for-Share:

  	
   

  	
  Modified Calculation Agent Adjustment and, for the
  avoidance of doubt, if the consideration for the Shares includes (or, at the
  option of a holder of Shares, may include) shares of an entity or person not
  organized under the laws of the United States, any State thereof or the
  District of Columbia (“Foreign Issuer Shares”), then the Calculation
  Agent may choose to apply Cancellation and Payment to that portion of the
  consideration comprising Foreign Issuer Shares.

  
	
   

  	
   

  	
   

  
	
  (b)           Share-for-Other:

  	
   

  	
  Cancellation and Payment (Calculation Agent
  Determination) on that portion of the Other Consideration that consists of
  cash; Modified Calculation Agent Adjustment on the remainder of the Other
  Consideration and, for the avoidance of doubt, if the Other Consideration
  includes (or, at the option of a holder of Shares, may include) Foreign
  Issuer Shares, then the Calculation Agent may

  



 



 6
 









 


	
  

  	
   

  	
  choose to apply Cancellation and Payment to that
  portion of the Other Consideration comprising Foreign Issuer Shares.

  
	
   

  	
   

  	
   

  
	
  (c)           Share-for-Combined:

  	
   

  	
  Component Adjustment

  
	
   

  	
   

  	
   

  
	
  Tender Offer:

  	
   

  	
  Applicable; provided that (a) Section 12.1(d) of the
  Equity Definitions is hereby amended by replacing the words “10%” in the
  third line with “50%”.

  
	
   

  	
   

  	
   

  
	
  Consequences of Tender Offers:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (a)           Share-for-Share:

  	
   

  	
  Modified Calculation Agent Adjustment

  
	
   

  	
   

  	
   

  
	
  (b)           Share-for-Other:

  	
   

  	
  Cancellation and Payment (Calculation Agent
  Determination) on that portion of the Other Consideration that consists of
  cash; Modified Calculation Agent Adjustment on the remainder of the Other
  Consideration and, for the avoidance of doubt, if the Other Consideration
  includes (or, at the option of a holder of Shares, may include) Foreign
  Issuer Shares, then the Calculation Agent may choose to apply Cancellation
  and Payment to that portion of the Other Consideration comprising Foreign
  Issuer Shares.

  
	
   

  	
   

  	
   

  
	
  (c)           Share-for-Combined:

  	
   

  	
  Component 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 shall also constitute a Delisting
  if the Exchange is located in the United States and the Shares are not
  immediately re-listed, re-traded or re-quoted on any of the New York Stock
  Exchange, the NASDAQ Global Select Market or the NASDAQ Global Market (or
  their respective successors); if the Shares are immediately re-listed,
  re-traded or re-quoted on any such exchange or quotation system, such
  exchange or quotation system shall be deemed to be the Exchange.

  
	
   

  	
   

  	
   

  
	
  Additional Disruption Events:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (a)           Change in Law:

  	
   

  	
  Applicable; provided that
  Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i)
  replacing the phrase “the interpretation” in the third line thereof with the
  phrase “or announcement or statement of the formal or informal
  interpretation”, (ii) immediately following the word “that” in the sixth line
  thereof, adding the phrase “as a result of one or more of the circumstances
  listed in (A) and (B) above” and (iii) deleting clause (Y) thereof in its
  entirety.

  
	
   

  	
   

  	
   

  
	
  (b)           Failure to Deliver:

  	
   

  	
  Not Applicable

  
	
   

  	
   

  	
   

  
	
  (c)           Insolvency Filing:

  	
   

  	
  Applicable

  
	
   

  	
   

  	
   

  
	
  (d)           Hedging Disruption:

  	
   

  	
  Applicable

  
	
   

  	
   

  	
   

  
	
  (e)           Increased Cost of
  Hedging:

  	
   

  	
  Not Applicable

  
	
   

  	
   

  	
   

  
	
  Hedging Party:

  	
   

  	
  Dealer

  
	
   

  	
   

  	
   

  
	
  Determining Party:

  	
   

  	
  Dealer

  



 



 7
 









 


	
  Non-Reliance:

  	
   

  	
  Applicable

  
	
   

  	
   

  	
   

  
	
  Agreements and Acknowledgements Regarding Hedging
  Activities:

  	
   

  	
  Applicable

  
	
   

  	
   

  	
   

  
	
  Additional Acknowledgements:

  	
   

  	
  Applicable

  
	
   

  	
   

  	
   

  
	
  Dealer Payment Instructions:

  	
   

  	
  To be provided by Dealer.

  
	
   

  	
   

  	
   

  
	
  Counterparty
  Payment and Delivery Instructions:

  	
   

  	
  To be provided by Counterparty.

  



 


3.     Calculation Agent:  Dealer; provided
that all determinations made by the Calculation Agent shall be made in good
faith and in a commercially reasonable manner. Following any calculation by the
Calculation Agent hereunder, upon a prior written request by Issuer, the
Calculation Agent will provide to Counterparty by e-mail to the e-mail address
provided by Counterparty in such a prior written request a report (in a
commonly used file format for the storage and manipulation of financial data)
displaying in reasonable detail the basis for such calculation; and provided further that no transferee of the
Transaction in accordance with the terms of this Confirmation shall act as
Calculation Agent with respect to such transferred Transaction without the
prior consent of Counterparty, such consent not to be unreasonably withheld.


	
  4.     Offices:

  
	
   

  
	
  (a)

  	
  The Office of Dealer for this Transaction is:

  
	
   

  	
   

  
	
  (b)

  	
  The Office of Counterparty for this Transaction is:
  8000 S. Federal Bay, Boise, Idaho 83716-9632.

  
	
   

  	
   

  
	
  5.     Notices: For
  purposes of this Confirmation:

  
	
   

  
	
  (a)

  	
  Address for notices or communications to
  Counterparty:

  
	
   

  	
   

  
	
   

  	
  To:

  	
  Micron Technology, Inc.

  
	
   

  	
   

  	
  8000 South
  Federal Way

  
	
   

  	
   

  	
  Boise, Idaho
  83716

  
	
   

  	
  Attn:

  	
  General Counsel

  
	
   

  	
  Telephone:

  	
  (208) 368-4000

  
	
   

  	
  Facsimile:

  	
  (208) 368-4540

  
	
   

  	
   

  	
   

  
	
   

  	
  With a copy to:

  	
  Wilson Sonsini Goodrich & Rosati

  
	
   

  	
   

  	
  Professional
  Corporation

  
	
   

  	
   

  	
  650 Page Mill
  Road

  
	
   

  	
   

  	
  Palo Alto, CA
  94304

  
	
   

  	
  Attn:

  	
  John A. Fore, Esq.

  
	
   

  	
  Telephone:

  	
  (650) 493-9300

  
	
   

  	
  Facsimile:

  	
  (650) 493-6811

  
	
   

  	
   

  	
   

  
	
  (b)

  	
  Address for notices or communications to Dealer:

  
	
   

  	
   

  	
   

  
	
   

  	
  To:

  	
  Morgan Stanley & Co. International plc

  
	
   

  	
   

  	
  c/o Morgan
  Stanley Bank

  
	
   

  	
   

  	
  c/o Morgan
  Stanley

  
	
   

  	
   

  	
  750 Seventh
  Avenue, 29th Floor

  
	
   

  	
   

  	
  New York, New York 10019

  
	
   

  	
  Attn:

  	
  Robert Poselle

  
	
   

  	
  Telephone:

  	
  (212) 276-2427

  
	
   

  	
  Facsimile:

  	
  (212) 507-0724

  
	
   

  	
   

  	
   

  
	
   

  	
  With a copy to:

  	
  Law Division

  
	
   

  	
   

  	
  Morgan Stanley

  



 



 8
 









 


 


	
  

  	
  1221 Avenue of the Americans, 40th Floor

  
	
   

  	
  New York, NY 10020

  
	
  Attn:

  	
  Anthony Cicia

  
	
  Telephone:

  	
  (212) 762-4828

  
	
  Facsimile:

  	
  (212) 507-4338

  



 


6.     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, Dealer as follows:


(i)            On the
Trade Date and on any Additional Premium 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.


(ii)           Counterparty
intends the Transaction to qualify as an equity instrument for purposes of EITF
Issue No. 00-19.  Without limiting the generality of
Section 13.1 of the Equity Definitions, Counterparty acknowledges that
Dealer is not making any representations or warranties with respect to the
treatment of the Transaction under any accounting standards including FASB Statements
128, 133 ( as amended), 149 or 150, EITF Issue No. 00-19, 01-6 or 03-6 (or any
successor issue statements) or under FASB’s Liabilities & Equity
Project.


(iii)          Prior
to the Trade Date, Counterparty shall deliver to Dealer a resolution of
Counterparty’s board of directors authorizing the Transaction and such other
certificate or certificates as Dealer shall reasonably request.


(iv)          On the
Trade Date and on any Additional Premium Date, 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.


(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 manipulate the price of the Shares (or any security convertible
into or exchangeable for Shares) or otherwise in violation of the Exchange Act.


(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 and on any Additional Premium Payment Date (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)        (A) During
each period starting on the first Expiration Date and ending on the last
Expiration Date, in each case sharing a common Final Disruption Date (each a “Settlement
Period”), the Shares or securities that are convertible into, or
exchangeable or exercisable for Shares shall not be, subject to a “restricted
period,” as such term is defined in Regulation M under the Exchange Act (“Regulation
M”) and (B) Counterparty shall not engage in any “distribution,” as such
term is defined in Regulation M, other than a distribution meeting the
requirements of the exceptions set forth in sections 101(b)(10) and 102(b)(7)
of Regulation M, until the second Exchange Business Day immediately following
the relevant Settlement Period.



 9
 









(ix)           During
each Settlement Period, neither Counterparty nor any “affiliate” or “affiliated
purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule
10b-18”)) shall directly or indirectly (including, without limitation, by
means of any 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 or
exercisable for Shares.


(b)           Each of
Dealer 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
Dealer and Counterparty acknowledges that the offer and sale of the Transaction
to it is intended to be exempt from registration under the Securities Act of
1933, as amended (the “Securities Act”), by virtue of Section 4(2)
thereof.  Accordingly, Counterparty
represents and warrants to Dealer and Dealer represents to Counterparty 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 and its
investments in and liabilities in respect of the Transaction, which it
understands are not readily marketable, are not disproportionate to its net
worth, and it is able to bear any loss in connection with the Transaction,
including the loss of its entire investment in the Transaction, (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 without a view to the distribution or resale thereof, (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, (v) its financial
condition is such that it has no need for liquidity with respect to its
investment in the Transaction and no need to dispose of any portion thereof to
satisfy any existing or contemplated undertaking or indebtedness and is capable
of assessing the merits of and understanding (on its own behalf or through
independent professional advice), and understands and accepts, the terms,
conditions and risks of the Transaction.


(d)           Each of Dealer and Counterparty agrees and
acknowledges that Dealer is a “financial institution,” “swap participant”
and/or “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 (A) that 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 is a “settlement payment,” as such
term is defined in Section 741(8) 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 is a “transfer,” as
such term is defined in Section 101(54) of the Bankruptcy Code, and (B) that
Dealer is entitled to the protections afforded by, among other sections,
Sections 362(b)(6), 362(b)(17), 546(e), 546(g), 555 and 560 of the Bankruptcy
Code.


(e)           Counterparty
hereby agrees and acknowledges that the Transaction has not been registered
with the Securities and Exchange Commission or any state securities commission
and that the Options are being written by Dealer to Counterparty in reliance
upon exemptions from any such registration requirements.  Counterparty acknowledges that all Options
acquired from Dealer will be acquired for investment purposes only and not for
the purpose of resale or other transfer except in compliance with the
requirements of the Securities Act. 
Counterparty will not sell or otherwise transfer any Option or any
interest therein except in compliance with the requirements of the Securities
Act and any subsequent offer or sale of the Options will be solely for
Counterparty’s account and not as part of a distribution that would be in
violation of the Securities Act.


7.     Repurchase
Notices.  Counterparty shall, on any
day on which Counterparty effects any repurchase of Shares, promptly give
Dealer a written notice of such repurchase (a “Repurchase Notice”) on
such day if following such repurchase, the Notice Percentage as determined on
such day is greater by 0.5% than the Notice Percentage included in the
immediately preceding Repurchase Notice (or, in the case of the first such
Repurchase Notice or the first such Repurchase Notice after the initial Final
Disruption Date, greater than 4.5%.  The
“Notice Percentage” as of any day is the fraction (A) the numerator of
which is the aggregate of the Number of Shares for all Components under this
Transaction and all other Transactions and (B) the denominator of which is the
number of Shares outstanding on such day. 
In the event that Counterparty fails to provide Dealer with a Repurchase
Notice on the day and in the manner specified in this Section 7, then
Counterparty to the extent permitted by law agrees to indemnify and hold
harmless Dealer, its affiliates and their respective directors, officers,
employees, agents and controlling persons (Dealer and each such person being an
“Indemnified Person”) from and against any and all losses (including losses
relating to Dealer’s



 10
 









hedging activities
as a consequence of becoming, or of the risk of becoming, a Section 16
“insider,” including without limitation any forbearance from hedging activities
or cessation of hedging activities and any losses in connection therewith with
respect to this Transaction), claims, damages and liabilities (or actions in
respect thereof), joint or several, to which such Indemnified Person is
subject, including without limitation, Section 16 of the Exchange Act),
relating to or arising out of such failure. 
If for any reason the foregoing indemnification is unavailable to any
Indemnified Person or insufficient to hold harmless any Indemnified Person,
then Counterparty shall contribute, to the maximum extent permitted by law, to
the amount paid or payable by the Indemnified Person as a result of such loss,
claim, damage or liability.  In addition,
Counterparty will reimburse any Indemnified Person for all reasonable expenses
(including reasonable counsel fees and expenses) as they are incurred (after
notice to Counterparty) in connection with the investigation of, preparation
for or defense or settlement of any pending or threatened claim or any action,
suit or proceeding (including any governmental or regulatory investigation)
arising therefrom, whether or not such Indemnified Person is a party thereto
and whether or not such claim, action, suit or proceeding is initiated or
brought by or on behalf of Counterparty. 
This indemnity shall survive the completion of the Transaction
contemplated by this Confirmation and any assignment and delegation of the
Transaction made pursuant to this Confirmation or the Agreement shall inure to
the benefit of any permitted assignee of Dealer.  Issuer will not be liable under this
indemnity provision to the extent any loss, claim, damage, liability or expense
is found in a final judgment by a court to have resulted from Dealer’s gross
negligence or willful misconduct.


8.     Transfer
or Assignment.  Neither party may
transfer any of its rights or obligations under this Transaction without the
prior written consent of the non-transferring party; provided that if at any time the Equity Percentage exceeds
9%, Dealer may immediately, in its sole discretion, transfer or assign a number
of Options sufficient to reduce the Equity Percentage to 8.5% to any third
party with (or with a guarantor that has) a rating for its long-term, unsecured
and unsubordinated indebtedness of AA or better by Standard & Poor’s Ratings
Services or its successor (“S&P”),
or Aa2 or better by Moody’s Investors Service, Inc. (“Moody’s”) or, if either S&P or
Moody’s ceases to rate such debt, at least an equivalent rating or better by a
substitute agency rating mutually agreed by Counterparty and Dealer.  If, in the discretion of Dealer, Dealer is
unable to effect such transfer or assignment after its commercially reasonable
efforts on pricing terms reasonably acceptable to Dealer, Dealer may designate
any Scheduled Trading Day as an Early Termination Date and an Additional
Termination Date shall be deemed to occur with respect to a portion (the “Terminated Portion”) of this
Transaction, allocated to Components as Dealer determines in its discretion,
such that the Equity Percentage following such partial termination will be
equal to or less than 8.5%.  In the event
that Dealer so designates an Early Termination Date with respect to a portion
of this Transaction, a payment shall be made pursuant to Section 6 of the
Agreement as if (i) an Early Termination Date had been designated in respect of
a Transaction having terms identical to this Transaction and a Number of
Options equal to the Terminated Portion, (ii) Counterparty shall be the
Affected Party with respect to such partial termination and (iii) such portion
of this Transaction shall be the only Affected Transaction.  The “Equity Percentage” as of any day is the fraction (A) the
numerator of which is the number of Shares that Dealer or any of its affiliates
that are subject to aggregation with Dealer beneficially own (within the
meaning of Section 13 of the Exchange Act) on such day and (B) the denominator
of which is the number of Shares outstanding on such day.  Notwithstanding Section 7 of the Agreement,
Counterparty may assign its rights and obligations under this Transaction, in
whole or in part, on terms reasonably acceptable to both parties, without any
payment being owed from Counterparty to Dealer.


9.     Extension of
Settlement.   Dealer may divide any
Component into additional Components and designate the Expiration Date, the
Final Disruption Date and the Number of Options for each such Component if
Dealer determines, in its reasonable discretion, that such further division is
necessary or advisable to preserve Dealer’s hedging activity hereunder in light
of existing liquidity conditions or to enable Dealer to effect purchases of
Shares in connection with its hedging activity hereunder in a manner that
would, if Dealer were Counterparty or an affiliated purchaser of Counterparty,
be compliant with applicable legal and regulatory requirements.


10.     Early Termination Right.  Counterparty may elect to terminate this
Transaction, in whole or in part, prior to the relevant Expiration Date, on
terms acceptable to both parties, and, if such termination occurs following the
payment of the premiums for all Components, without any payment being owed from
Counterparty to Dealer.


11.   Equity Rights.  Dealer 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



 11
 









Confirmation is
not secured by any collateral that would otherwise secure the obligations of
Counterparty herein under or pursuant to any other agreement.


12.   Alternative
Calculations and Payment on Early Termination and on Certain Extraordinary
Events.  If Dealer shall owe
Counterparty any amount pursuant to Section 12.2 of the Equity Definitions and
“Consequences of Merger Events” above, or Sections 12.3, 12.6, 12.7 or 12.9 of
the Equity Definitions (except in the event of 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 require Dealer to satisfy any such Payment Obligation
by the Share Termination Alternative (as defined below) by giving irrevocable
telephonic notice to Dealer, 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, Early Termination Date or
other date of termination, as applicable (“Notice of Share Termination”).  Within a commercially reasonable period of
time following receipt of a Notice of Share Termination, Dealer shall deliver
to Counterparty a number of Share Termination Delivery Units having a cash
value equal to the amount of such Payment Obligation (such number of Share
Termination Delivery Units to be delivered to be determined by the Calculation
Agent as the number of whole Share Termination Delivery Units that could be purchased
over a commercially reasonable period of time with the cash equivalent of such
payment obligation) (the “Share Termination Alternative”).


	
  Share Termination Delivery Unit:

  	
  In the case of a Termination Event, Event of
  Default, Delisting or Additional Disruption Event, one Share or, in the case
  of an Insolvency, Nationalization, 
  Merger Event or Tender Offer, one Share or 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 and 9.12 of the Equity
  Definitions will be applicable as if Physical Settlement applied to the
  termination of the Transaction, except that all references to “Shares” shall
  be read as references to “Share Termination Delivery Units”; and provided 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 as
  a result of the fact that Buyer is the issuer of any Share Termination
  Delivery Units (or any part thereof).

  



 


13.   Set-Off.  The parties agree to amend Section 6 of the
Agreement by replacing Section 6(f) in its entirety with the following:


“(f)  Upon the occurrence of an Event of Default or
Termination Event with respect to a party who is the Defaulting Party or the
Affected Party (“X”), the other party (“Y”) will have the right
(but not be obliged) without prior notice to X or any other person to set-off
or apply any obligation of X under an Equity Contract owed to Y (or any
Affiliate of Y) (whether or not matured or contingent and whether or not
arising under the Agreement, and regardless of the currency, place of payment
or booking office of the obligation) against any obligation of Y (or any
Affiliate of Y) under an Equity Contract owed to X (whether or not matured or
contingent and whether or not arising under the Agreement, and regardless of
the currency, place of payment or booking office of the obligation).  Y will give notice to the other party of any
set-off effected under this Section 6(f).



 12
 









“Equity Contract”
shall mean for purposes of this Section 6(f) any transaction relating to Shares
between X and Y (or any Affiliate of Y) that qualifies as ‘equity’ under
applicable accounting rules.


Amounts (or the relevant
portion of such amounts) subject to set-off may be converted by Y into the
Termination Currency at the rate of exchange at which such party would be able,
acting in a reasonable manner and in good faith, to purchase the relevant
amount of such currency.


If any obligation is
unascertained, Y may in good faith estimate that obligation and set-off in
respect of the estimate, subject to the relevant party accounting to the other
when the obligation is ascertained.


Nothing in this Section
6(f) shall be effective to create a charge or other security interest.  This Section 6(f) shall be without prejudice
and in addition to any right of set-off, combination of accounts, lien or other
right to which any party is at any time otherwise entitled (whether by
operation of law, contract or otherwise).”


14.   Amendment to Equity
Definitions.  Solely for purposes of
applying the Equity Definitions and for purposes of this Confirmation, any
reference in the Equity Definitions to a Strike Price shall be deemed to be a
reference to either of the Strike Price or the Cap Price, or both, as
appropriate.


15.   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.


16.   Unwind.  In the event the sale of the Convertible
Notes is not consummated with the initial purchasers pursuant to the
Underwriting Agreement, for any reason by the close of business in New York on
May 23, 2007 (or such later date as agreed upon by the parties which in no
event shall be later than the third Scheduled Trading Day following May 17,
2007) (such date or such later date as agreed upon being the “Accelerated
Unwind Date”), this Transaction shall automatically terminate (the “Accelerated
Unwind”) on the Accelerated Unwind Date and (i) this Transaction and all of
the respective rights and obligations of Dealer and Counterparty under this
Transaction shall be cancelled and terminated and (ii) each party shall be
released and discharged by the other party from and agrees not to make any
claim against the other party with respect to any obligations or liabilities of
the other party arising out of and to be performed in connection with this
Transaction either prior to or after the Accelerated Unwind Date; provided
that Counterparty shall reimburse Dealer for any costs or expenses (including
market losses) relating to the unwinding of its hedging activities in
connection with the Transaction (including any loss or cost incurred as a
result of its terminating, liquidating, obtaining or reestablishing any hedge
or related trading position).  The amount
of any such reimbursement shall be determined by Dealer in its sole good faith
discretion.  Dealer shall notify
Counterparty of such amount and Counterparty shall pay such amount in
immediately available funds on the Early Unwind Date.  Dealer and Counterparty represent and
acknowledge to the other that upon an Accelerated Unwind and the satisfaction
of counterparty’s payment obligation, if any, as specified in this
Section 16, all obligations with respect to this Transaction shall be
deemed fully and finally discharged.


17.   Additional Provisions.  Counterparty understands and agrees that
Agent will act as agent for both parties with respect to the Transaction.  Agent is so acting solely in its capacity as
agent for Counterparty and Dealer pursuant to instructions from Counterparty
and Dealer.  Agent shall have no
responsibility or personal liability to either party arising from any failure
by either party to pay or perform any obligation under the Transaction.  Each party agrees to proceed solely against
the other to collect or recover any amount owing to it or enforce any of its
rights in connection with or as a result of the Transaction.


Notwithstanding any provisions of the Agreement, all communications
relating to the Transaction or the Agreement shall be transmitted exclusively
through Agent at Morgan Stanley Bank, One New York Plaza, 4th Floor, New York,
New York 10004.


18.   No Collateral
by Counterparty.  No collateral is required to be posted by Counterparty in respect of
this Transaction.



 13
 









19.   Disposition of
Hedge Shares.  Counterparty hereby
agrees that if, in the reasonable judgment of counsel for the Dealer, the
Shares (the “Hedge Shares”) acquired by Dealer for the purpose of hedging its
obligations pursuant to the Transaction cannot be sold in the U.S. public
market by Dealer without registration under the Securities Act, Counterparty
shall, at its election: (i) in order to allow Dealer to sell the Hedge Shares
in a registered offering, use its commercially reasonable efforts to make
available to Dealer an effective registration statement under the Securities
Act to cover the resale of such Hedge Shares and (A) enter into an agreement,
in form and substance reasonably satisfactory to Dealer, substantially in the
form of an underwriting agreement for a registered offering, (B) provide
accountant’s “comfort” letters in customary form for registered offerings of
equity securities, (C) provide disclosure opinions of nationally recognized
outside counsel to Counterparty customary in form for registered offerings of
equity securities, (D) provide other customary opinions, certificates and
closing documents customary in form for registered offerings of equity
securities and (E) afford Dealer a reasonable opportunity to conduct a “due
diligence” investigation with respect to Counterparty customary in scope for
underwritten offerings of equity securities; provided,
however, that if Dealer, in its reasonable discretion, is not
satisfied with access to due diligence materials, the results of its due
diligence investigation, or the procedures and documentation for the registered
offering referred to above, then clause (ii) or clause (iii) of this Section 18
shall apply at the election of Counterparty; (ii) in order to allow Dealer to
sell the Hedge Shares in a private placement, enter into a private placement
agreement substantially similar to private placement purchase agreements
customary for private placements of equity securities, in form and substance
reasonably satisfactory to Dealer, including customary representations,
covenants, blue sky and other governmental filings and/or registrations,
indemnities to Dealer, due diligence rights (for Dealer or any designated buyer
of the Hedge Shares from Dealer), opinions and certificates and such other
documentation as is customary for private placements agreements, all reasonably
acceptable to Dealer (in which case, the Calculation Agent shall make any
adjustments to the terms of the Transaction that are necessary, in its
reasonable judgment, to compensate Dealer for any discount from the public
market price of the Shares incurred on the sale of Hedge Shares in a private
placement); or (iii) purchase the Hedge Shares from Dealer at the VWAP Price on
such Exchange Business Days, and in the amounts, as requested by Dealer.


20.   Opinion of
Counsel.  Counterparty shall deliver
an opinion of counsel, dated as of the Trade Date, in substantially the form
attached hereto as Annex B.


21.   Waiver of
Trial by Jury.  EACH OF
COUNTERPARTY AND DEALER 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 DEALER OR ITS AFFILIATES OR COUNTERPARTY OR ITS AFFILIATES IN
THE NEGOTIATION, PERFORMANCE OR ENFORCEMENT HEREOF.


22.   Governing Law.  THE AGREEMENT AND
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.


23.   Regulatory
Provisions.  Counterparty represents and
warrants that it has received and read and understands the Notice of Regulatory
Treatment and the OTC Option Risk Disclosure Statement.  Agent will furnish Counterparty upon written
request a statement as to the source and amount of any remuneration received or
to be received by Agent in connection with the Transaction evidenced hereby.



 14
 









24.   Role  of
Agent.   (i) Agent is acting
as agent for Dealer but does not guarantee the performance of Dealer or
Counterparty; (ii) Dealer is not a member of the Securities Investor Protection
Corporation; (iii) Agent, Dealer and Counterparty each hereby acknowledges that
any transactions by Dealer or Agent in the Shares will be undertaken by Dealer
as principal for its own account; and (iv) all of the actions to be taken by
Dealer and Agent in connection with the Transaction shall be taken by Dealer or
Agent independently and without any advance or subsequent consultation with
Counterparty; and (v) Agent is hereby authorized to act as agent for
Counterparty only to the extent required to satisfy the requirements of Rule
15a-6 under the Exchange Act in respect of the Transaction described hereby..



 15














Counterparty hereby agrees (a) to check this Confirmation
carefully and immediately upon receipt so that errors or discrepancies can be
promptly identified and rectified and (b) to confirm that the foregoing
(in the exact form provided by Dealer) correctly sets forth the terms of the
agreement between Dealer and Counterparty with respect to this Transaction, by
manually signing this Confirmation or this page hereof as evidence of agreement
to such terms and providing the other information requested herein and
immediately returning an executed copy to Agent at Morgan Stanley Bank, One New
York Plaza, 4th Floor, New York, New York 10004.


	
  

  	
   

  	
  Yours faithfully,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Morgan Stanley & Co. International plc

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Steven Nash

  	
   

  
	
   

  	
   

  	
   

  	
  Steven Nash

  
	
   

  	
   

  	
   

  	
  Executive Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Morgan Stanley Bank, as agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Robert Poselle

  	
   

  
	
   

  	
   

  	
   

  	
  Robert Poselle

  
	
   

  	
   

  	
   

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Agreed and Accepted By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  MICRON TECHNOLOGY, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ W. G. Stover, Jr.

  	
   

  	
   

  
	
   

  	
  Name:

  	
  W. G. Stover, Jr.

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President of Finance and

  	
   

  	
   

  
	
   

  	
   

  	
  Chief Financial Officer

  	
   

  	
   

  



 


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